Regulating by proxy, restricting rights, and reducing competition? Pitfalls of the EU copyright directive.

Regulating by proxy, restricting rights, and reducing competition? Pitfalls of the EU copyright directive.

On September 12th, 2018, the European Parliament voted in favour of legislation that purports to be an important step toward integrating EU copyright law in the internet age. Generally, the goal of the Directive on Copyright in the Digital Single Market (“the Directive”) is to give rights holders direct control over their copyright on internet platforms. This is to be accomplished by imposing requirements that content sharers prevent unauthorized use of content or else be liable for users’ infringement.

Certainly, (unlike some jurisdictions) the EU has been no shrinking violet when it comes to regulating the tech super-giants. The problem is that the debate around the Directive has, to a significant extent, been framed as a competition between publishers, media companies, artists, and record labels on the one side, with internet content sharers (like Google and Facebook) on the other. The point of copyright law, and IP law in general, often gets lost in the scrum between rights holders and users. But as emphasized by Professor David Vaver, it is important to remember that, “the public is a third party to all [IP] litigation.”[1] The focus on the public interest should be at least as significant when it comes to IP legislation.

In that spirit, while there are certainly arguments to be made on behalf of both content producers and content sharers, it is worth zeroing in on the views articulated by the Office of the United Nations High Commissioner for Human Rights. In a letter from June 2018, Special Rapporteur David Kaye raised several concerns with respect to the proposed Directive. After outlining some of the international human rights law as pertains to the dissemination of intellectual property (which is certainly an interesting read to the unacquainted), Mr. Kaye raises three specific areas of concern, which I will proceed to briefly summarize.

Firstly, the Special Rapporteur aptly points out that the proposed Directive inappropriately incentivizes the ‘pre-publication’ censorship of content. That is to say, the language of Articles 13 and 19(3), “raise[s] pressure on content sharing providers to err on the side of caution,” and as such, “monitor and filter user-generated content at the point of upload.” This creates a restriction on freedom of expression without judicial review – indeed, to me it appears the EU has moved to deputize content sharers as judicial arbiters when it comes to deciding what content they can provide access to.

Secondly, this very concern about “extrajudicial mechanisms” is not allayed by the built-in dispute-resolution mechanism of Article 13(7). Mr. Kaye’s main concern here appears to be that due process rights may be infringed, especially given that the parties being asked to rule on the appropriateness of content are not impartial actors, but rather tend to be for-profit businesses with fiduciary responsibilities to their shareholders. Furthermore, these actors are themselves limited in the scope of remedy they can provide for human rights violations, which means that harms may not be adequately redressed, even if access to content is later re-established.

Lastly, because Article 2(5) of the proposed Directive sets out an ambiguous set of criteria for determining what is expected of smaller and non-profit content sharers, rather than providing a clear exemption, there is a significant concern as to whether these types of organizations will be able to pursue the kinds of licence agreements that would be required under the Directive. This might ultimately have anti-competitive effects, stifling the ability of smaller content sharers to grow and challenge larger, more established players who can afford licensing.

The EU Copyright Directive is thus a prime example of the implications that IP law can have on personal and civil rights. With the spotlight that Brexit shines on long-held concerns about the political and democratic accountability of EU institutions, it is important, now more than ever, that the EU focus on clearly considering the public interest, not just the interests of lobbyists on either side. It is difficult to say whether the Directive, as passed, discharges this burden.


Peter Werhun is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School


[1] David Vaver, Intellectual Property Law, 2nd ed (Toronto: Irwin Law, 2011) at 14.