Attacking the Internet
April 1, 2019
Something important happened last week, though because it happened in Europe, it did not get as much attention here as it deserved. Last Tuesday the European Parliament passed its Directive on Copyright in the Digital Single Market. This was hard fought—the vote was 348 to 274—because there was a lot at stake. As has happened here in the United States, much of the fight was between the content people—those who develop and create content such as movies, recordings, news stories—and the online platforms that make the content available. The former (content people) want more control over their work; they want recipients to pay for it; and if their work ends up being available online without their permission, they want the service providers to be responsible for it. The providers want liability to rest with those posting the content; they don’t want to pay more for it; and they worry about being accused of censorship if they are too aggressive in banning material.
Two elements of the directive have emerged as the most controversial. The first would make content distributors responsible for content appearing illegally on their websites; the second would require news aggregation sites that summarize articles and provide links to them to pay for them. The parliament’s action in these areas was a clear victory for the content people. The massive amount of content constantly appearing, however, is beyond the capacity of actual live people to monitor it, which means that the liability requirement will lead inevitably to greater use of upload filters—algorithms designed to sniff out copyrighted content—which means mistakes are inevitable, partly because existing filters are far from perfect and partly because distinguishing satire or parody or other exempt material may be beyond algorithmic capabilities. Content that is copyright-protected will be missed and posted anyway, and content that is not protected will nonetheless be banned because it triggered the filter. Litigation and finger pointing are guaranteed. Of course, that’s pretty much what happens now, but effectively increasing the burden of enforcement on platform providers will likely lead them to err on the side of caution, which means ordinary consumers like you and me will notice that we can’t access things we used to get or will have to pay for them.
The Chinese, who have also been active players in this arena solve the latter problem simply by blocking sites that violate their standards, which are much more restrictive—for different reasons—than anything the European Union is contemplating.
The result of competing approaches will inevitably be either default to the most restrictive or fragmentation of the internet as countries or regions pursue their own policies and restrict access to anyone who does not want to play by their rules.
Lagging behind in this debate so far has been the United States, which has yet to articulate a coherent policy of its own or try to lead in the development of a common approach. On privacy, we have scrambled to negotiate a work-around for GDPR so our companies can continue to do business in Europe, but that failed once, thanks to the European Court of Justice, and the second attempt awaits what could be the same outcome. We have opposed Chinese policies, which are out-and-out censorship, but we have not produced an alternative. On liability, we have a policy less favorable to the content providers than the European Union’s, but it is under attack both from the content people who want to limit access to copyrighted material and from politicians who want to limit access to undesirable content like hate speech regardless of the constraints of the First Amendment, and the outcome is uncertain.
Like climate change, treatment of pandemics and other humanitarian crises, piracy, and international trade rules, this is an issue that cries out for collective multilateral action to get everyone, or as many as possible, on the same page. We have a president who does not believe in multilateralism, but in this case, we have not even taken the first steps to develop clear rules of our own. It is axiomatic that you can’t fight something with nothing, and what we’ve got right now is nothing, which means ceding leadership to the European Union and the Chinese, neither of which have our interests at heart.
William Reinsch holds the Scholl Chair in International Business at the Center for Strategic and International Studies in Washington, D.C.
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