Shutterstock and its content creators are likely to be impacted by the new E.U. Copyright Directive (long title: E.U. Directive on Copyright in the Digital Single Market), which is expected to pass sometime in spring 2019. As the first major change to the E.U.’s copyright laws in 17 years, its stated goal is to modernize E.U. copyright laws to reflect how content is used in the digital age.
It’s not surprising that there has been a difference in opinion as to what changes need to be made to the E.U. copyright laws. While a central focus of the E.U. Copyright Directive is to provide content creators in the E.U. with further protection of their rights and additional avenues for compensation, there has been much disagreement over whether the current version of the E.U. Copyright Directive will help achieve these goals — or whether it will stifle content platforms to actually hurt content creators.
You can see the entire history of the proposed law here, but we are going to focus on the section we believe is most applicable to Shutterstock’s relationship with its content creators: Article 13, which has been nicknamed the “upload filter.”
Current Status of Copyright Law for Content Platforms
Under the current U.S. and E.U. laws, online content sharing platforms are not necessarily liable for copyright infringement when third-party users of the platform upload infringing content. The reason is that online content sharing platforms do not control the content that is uploaded by users, and so the platform should not be held liable for the acts of its users, so long as it complies with the applicable laws to remove the content.
Article 13: An Obligation for Platforms to Actively Filter Infringing Content, and to Obtain a License for Infringing Content
Article 13 proposes that online content sharing platform should be liable for copyright infringement for infringing content uploaded by third-party users of the platform, unless the platform can get permission to use the infringing content, or can show that it actively filters for infringing content uploaded to the platform.
The “Upload” Filter
First, Article 13 requires that online content sharing platforms filter content uploads to make sure that the content is not infringing. By requiring stricter controls on content, platforms may be able to “weed out” infringing content more effectively (and therefore provide more protection for E.U. copyrights).
The “upload filter” requirement has been one of the most hotly debated parts of Article 13. Most content platforms would probably agree that being able to weed out infringing content is the ideal situation for content platforms and content creators alike. The question is “how?” The problem for content platforms, like Shutterstock, is that the law places a very strict obligation on content platforms to prevent infringing content from ever being uploaded: but there is no technology that exists that can compare uploaded content against all other content in the world. The end result may be that content platforms choose to automatically block certain content or users, in order to avoid liability for copyright infringement altogether.
This shifts the relationship between content platforms and their content creators: it forces content platforms to essentially treat content creators as guilty until proven innocent, if their content is blocked. And the content would likely be blocked by technology that is not 100 percent accurate because again, there is no technology in the world that can ascertain copyright ownership with 100 percent certainty. A content platform might choose to keep blocked content off its platform — including blocking the content creator — because it might be overly burdensome to manage dispute resolution over copyright ownership on such a large scale.
A Licensing Requirement for Infringing Work
Second, Article 13 attempts a solution for E.U. copyright owners to get compensated when their content is infringed, specifically, when another person uploads the copyright owner’s content to a content sharing platform. The current solution proposes that the content platform compensate the E.U. copyright owner directly for the infringing acts of the content platform users. It might be easier for an E.U. copyright owner to get compensated for infringement by the platform, rather than an individual user of a platform.
Both content platforms and content creators can agree that there is a gap that needs to be addressed to remedy content creators whose work has been infringed. The main problem with this particular solution, from the perspective of an online content sharing platform, is that the law is not clear on exactly how licenses should be obtained from E.U. copyright owners. For example, what proof are copyright owners required to provide? What are reasonable amounts for licenses? What do online platforms do if there is a dispute of copyright ownership between someone making a copyright complaint, and the person who uploaded the content?
When laws have high penalties, but are ambiguously and vaguely written, more conservative approaches tend to become the default. Content platforms will likely be pushed into being extremely restrictive with the content they allow to be uploaded, resulting in less content being accepted from content creators. It would not be surprising if online content platforms really clamped down on uploads or blocking specific users to avoid a potentially massive scale of liability resulting from a law that is not really clear.