What are, in Mozilla’s opinion, the key flaws in the current EU Digital Single Market copyright reforms?
Broadly, the European Commission’s proposal to reform copyright is a missed opportunity to modernise and harmonise copyright rules for the 21st century. Specifically, it lacks the ambition to introduce and reform copyright exceptions, such as text and data mining, which we’d like to see extended to apply to all beneficiaries. Not just research institutions, but also data journalists, advocacy organisations, start-ups and independent researchers.
The proposal also contains some concerning proposals that risk undermining the internet’s potential for free expression and innovation, and even creators’ ability to build closer relationships with their fans. One such dangerous proposition would seek to extend copyright protection to text snippets and links, a neighbouring right for press publishers and a failed approach that would stunt access to information, small publishers, and start-ups.
Mozilla is especially concerned about provisions in Article 13 and Recital 38 that call for mandatory upload filters. These would alter current legal protections for digital content platforms, making them liable for the content they host. It would require these services, from Soundcloud to Wikipedia, to monitor all content posted on their platforms in the name of copyright protection. It would also mandate a particular business model by requiring the negotiation of agreements by way of licences in order to operate a platform online. These proposals are very broad and, particularly for smaller players and start-ups, simply not feasible. It would have a disastrous impact on the internet ecosystem, reducing the amount of content that can be uploaded online, minimising opportunities for creators to build their careers, stifling expression and creating barriers for new players and business models.
What sort of long-lasting effects could reforms like this have if they were to be made into law?
We’ll miss the opportunity of a generation to modernise a sorely outdated framework to encourage creativity and expression online.
Notably, if the proposals in Article 13 are adopted, this would negatively affect competition, innovation and freedom of expression online. Firstly, we’ll see more concentration of power into the hands of the biggest industries and platforms. The major record labels, who are seeking to regain control over the distribution of content, and the major platforms, who will be the only companies able to shoulder the legal liability of rights clearance and enforcement, as well as the costly filtering technologies that would be required to operate a platform that hosts copyrighted content.
At the same time, the free expression of internet users, creators and innovators who use these online platforms will also be negatively affected, as online services will be incentivised to remove or prevent user generated content altogether. This ultimately undermines the opportunities and innovative potential that the internet offers.
How can this be remedied? What needs to be changed?
We need copyright laws that suit the digital age. The harmful proposals mandating upload filters would enforce a specific business model and remove key liability protections for online services. They must be significantly amended. The proposal to extend copyright via a new neighbouring right for press publishers should be rejected.
We also strongly support the introduction of another exception for user generated content. This is a legal acknowledgment that everyday activities of users (that do not impair the rights of others) such as remixing, parody, or mashups—in short, transformations of one work into something new—are not violations of copyright.
Rights owners have unquestionably taken a hit since the internet revolutionised content and communication. Might they not need some of these reforms to guard their investments?
That assumption isn’t quite accurate. Contrary to the claim that there is a ‘value gap’, business is booming, albeit with different revenue sources than in the past.
Independent creators are building on the digital opportunity by creating new business models with old and new revenue sources, as well as enjoying new opportunities to reach and grow global audiences. At the same time, collecting societies reaped a record €8.6 billion of revenues in 2015 and the digital revenues collected by record labels have consistently increased over the last few years.
What this issue is truly about, at its core, is a conflict over control—creative industry intermediaries are no longer 100 percent in control of distribution and market access.
It is also worth noting that many of the platforms that have been the focus of Article 13, such as YouTube and Soundcloud, already work closely with rights holders to determine remuneration agreements and licenses, and additionally offer data insights and opportunities.
What we are seeing is a digital transformation, which is disrupting an antiquated system of record labels, publishers, and collecting societies, by removing intermediary costs, and lowering barriers for artists to get known and for consumers to access content.
Digital innovations have changed the way that people consume content and information, how internet users can remix, mashup and share content, and how artists and creators can make use of diverse channels through which they can build careers, independent of being signed by a record label. Such transformations mean that comparing figures from the 1990s for CD sales with present day figures for advertising revenue supported streaming, or figures for subscription income from access to massive music libraries, doesn’t give valid comparisons, and so doesn’t account for value growth, nor for the steady and increased income of music publishers, collection societies and record labels, following this digital transformation.
Mozilla strongly believes in ensuring that creators and artists are fairly remunerated for their works. What we are cautioning against is the fact that these proposals are clearly crafted to favour a handful of major rights holders, at the expense of a well-functioning market in the EU for users, start-ups and creators.
What should rights owners be doing themselves to ensure that they are fairly remunerated?
Mozilla believes that many of the issues surrounding fair remuneration should look to technology as an opportunity. An opportunity for more plurality, diversity, and new players to enter the market. Many in the music industry support this view, highlighting the democratising and pluralising effects for new artists by harnessing open platforms like YouTube and Soundcloud.
For artists and creators, it’s important that they are aware of their rights, and also the tools they have at their disposal to ensure they’re properly compensated. There are elements in the copyright directive that can advance such reforms, such as Articles 14 and 16, which would better empower artists to make use of the channels and opportunities that would enrich their career and ensure fair treatment. It’s important that as we address inequalities on remuneration, we also ensure creators are treated fairly in terms of the valuable usage data their content generates.