YouTube and its users face an existential threat from the EU’s new copyright directive
YouTube and its users face an existential threat from the
EU’s new copyright directive
·
YouTube creators fear their livelihood and
creative outlet could be threatened by a new EU copyright directive that makes
platforms liable for infringing content posted on their sites.
·
EU member states still have two years to write
the vague language of the directive into law, and YouTube is not done pushing
back on it.
·
Legal experts say the directive could end up
further entrenching powerful players like YouTube that have the means to comply
with new laws.
Lauren Feiner PUBLISHED SUN, MAY 12 2019 10:00 AM EDT
Samuel Jones largely lives off the money he makes from
YouTube as a TV and film reviewer.
“In terms of paying rent, buying food, buying cigarettes,
it’s all YouTube money,” he said.
While his channel’s co-creator Max Bardsley is in
university, Jones works on “NitPix ” full-time. The U.K.-based pair also
nurture a small fashion business on the side that mostly provides some spending
change.
Recently, Jones and Bardsley have been thinking about a
backup plan. Like other content creators who have built brands and businesses
on tech platforms like YouTube, they fear their livelihood and creative outlet
could be threatened by a new copyright directive passed by the European Union
in March.
Under the new rules, which member states have two years
to formally write into law, tech platforms like YouTube could be held liable
for hosting copyrighted content without the proper rights and licensing. That’s
a big change from the status quo, which generally assumes platforms are not
legally liable for their users’ uploads so long as they take down infringing
content once flagged. But according to the directive, companies like YouTube
can soon be held liable unless they can also prove they made “best efforts” to
get authorization for the content and prevent it from being shared without
rights in the first place.
YouTube and other tech platforms have argued that the
only practical way to avoid liability will be to install even more restrictive
content filters than the ones they currently have to prevent infringement. The
EU directive does not require tech companies to do that and it makes exceptions
for using copyrighted material in parody or commentary, as would be the case in
Jones and Bardsley’s reviews.
But experts say it will be difficult for platforms to
create automated filters that can distinguish this context, at least at first.
That could mean a channel like “NitPix” would have to avoid using any movie or
TV clips in their reviews to ensure their videos upload to the site in a timely
manner.
Jones and Bardsely, along with four other YouTube
creators interviewed for this article, remain optimistic that the final version
of the laws will be more flexible than the vague language of the directive. But
YouTube isn’t leaving things up to chance.
A threat to YouTube
YouTube is ready to put up a fight against the EU
measure, which threatens to force it to block a wide swath of content and slow
down the process of uploading videos to the site to avoid liability. If YouTube
chose to block copyrighted content with stricter upload filters, everything
from a family video of a couple’s first wedding dance to a potentially viral
dance challenge video like a “Harlem Shake ” flash mob could be blocked from
the site. Frustrated creators and users may flee the platform if it no longer
provides the outlet for their creativity or boredom.
If creators take their work elsewhere, that would mean
fewer videos to watch on YouTube and fewer chances for YouTube to generate ad
revenue. The company is already under pressure to grow ad revenue after changes
to its algorithms over the past year have likely hurt engagement in favor of
winning back scorned advertisers worried about their brands appearing next to
unseemly videos.
Alphabet CFO Ruth Porat blamed YouTube in part for the
company’s decelerating ad revenue growth in its first quarter 2019, which sent
Google’s stock plunging more than 7% following the report.
“While YouTube clicks continue to grow at a substantial
pace in the first quarter, the rate of YouTube click growth rate decelerated
versus a strong Q1 last year, reflecting changes that we made in early 2018,
which we believe are overall additive to the user and advertiser experience,”
Porat said on a call with analysts after the report.
YouTube recognizes the importance of keeping its creators
happy on the platform. In an April 30 blog post, CEO Susan Wojcicki said
YouTube will aim to further promote a wider array of creator videos in its
trending tab to answer concerns that the same creators seemed to be featured
all the time.
Wojcicki also said YouTube is working on improving its
“Manual Claiming” tool so that YouTubers aren’t unfairly penalized for
copyright claims stemming from extremely short or incidental content usage. But
under the new directive, YouTube would likely have to rethink this claiming
process.
“The incentive structure here for YouTube would be to
delete everything where it has its doubts about its illegality,” said Stephan
Dreyer, a senior researcher of media law and media governance at the Hans-Bredow-Institut
in Germany. “In cases of doubt, the machine must always decide against the
content creator and that’s something that paragraph 7 does not really cope
with,” he added, alluding to the section that allows for commentary and parody
exceptions.
In its final iteration, the directive makes specific
exceptions for content that is used for criticism, quotation or parody, which
legal experts said should wipe away fears of what critics labeled a “meme ban.
” Opponents of the directive originally argued the measure would prevent the
spread of memes since copyrighted images that make up the basis of many of
these satirical posts could end up filtered off of platforms. But even after
the text was revised, tens of thousands of protesters took to the streets in
Germany the week of the EU parliamentary vote, pledging to “save your
internet.”
YouTube did not make a representative available for an
interview for this article, but it has said on its site that revisions made to
the directive before its passage were an “improvement.” But the company still
remains wary of how it will be implemented.
“While we support the rights of copyright holders —
YouTube has deals with almost all the music companies and TV broadcasters today
— we are concerned about the vague, untested requirements of the new
directive,” Wojcicki wrote in the blog post. “It could create serious
limitations for what YouTube creators can upload. This risks lowering the
revenue to traditional media and music companies from YouTube and potentially
devastating the many European creators who have built their businesses on
YouTube.”
Creators’ frustrations
YouTube creators often use copyrighted material as a way
to highlight a point or comment on a specific piece of media. In many of these
cases, this use is allowed under the principles of “fair use,” similar to the
exceptions made in the EU’s final version of the directive.
In interviews, YouTube creators said these materials
aren’t just an added plus for their videos — they’re a core part of what makes
them work.
“I don’t want to have to spend half the video or
three-quarters of the video just explaining things that I could show instead,
and I think that when you do that, it kind of detracts from the video’s
appeal,” said James Dancey, whose political commentary-focused channel “The
Right Opinion ” has over 300,000 subscribers. “We have an audience that I feel
like is waiting on us to deliver quality content, and one of the things I’ve
realized as a YouTuber is there are many people who find my videos make a
difference to their day.”
Arun Maini, who runs the technology review channel
“Mrwhosetheboss ” with over 2 million subscribers, said he intersperses
relevant copyrighted material in about half of his videos as a way to keep
viewers engaged. He dreads the thought of producing a six-minute video of
simply talking to the camera. Beyond being boring, he thinks this sort of video
could actually hurt a creator’s following.
“If anything, you’d be better off not even trying because
you’d be making such bad content that you’d be damaging your channel,” Maini
said.
Overall, creators are optimistic the directive won’t
excessively impact their channels, if only because they believe the new laws
won’t work. But they do anticipate headaches from YouTube’s own filtering
system, whose current iteration known as Content ID, is already a thorn many
creators’ sides.
“Content ID is the only real existing model we have to
work on to see what the filters would be like, and it’s been an absolute
nightmare for me working under Content ID” said Dan Bull, a YouTube creator
with over 1.5 million subscribers on his channel.
Bull, who creates rap videos about the internet, gaming
and politics, said he’s had videos flagged by the filter because it could not
detect that he had a nonexclusive license. He said he’s also learned of
instances where the system incorrectly redirects revenue after someone makes a
false copyright claim.
YouTube did not answer CNBC’s questions about Content ID
or its characterizations by creators.
Bull said his problems with Content ID have already
changed his creative process. He’s reluctant to create videos with fair use
content because it’s become so burdensome to deal with.
“I don’t really want to make parody music anymore. I used
to really enjoy making parody songs, but now when I think about that, I think
about what a headache it would be with the copyright claims,” Bull said. “It
seems to be contrary to the entire principle of what copyright was for.”
The “NitPix” creators said they temporarily had one of
their TV reviews removed from the platform due to copyright, but it was later
reinstated. They said they haven’t had problems with it in more than a year.
Given the technical limitations that already exist, legal
experts say the complexity of such a system will advantage the already-dominant
players.
Corynne McSherry, legal director of the Electronic
Frontier Foundation, which has fiercely opposed the EU directive, said building
this type of system is a task that “even the YouTubes of the world will not be
able to accomplish,” leaving open the question of how up-and-coming platforms
will tackle it.
Entrenching large platforms
A key criticism of Article 17 of the EU directive has
been that it will further entrench large platforms’ foothold in digital
distribution dominance. The directive gives more leniency to companies with
under 10 million euros in annual revenue with a product available to the public
for less than three years. But legal experts say that in trying to get tech
companies to pay their fair share for copyrighted content, the directive has
created a new problem that only the tech giants can solve.
“A likely effect of [Article 17] will be to entrench the
exact tech giants that everyone’s been complaining about all this time,”
McSherry said.
Legal experts interviewed for this article said platforms
will likely pursue broad licensing agreements to avoid liability. YouTube
already has agreements with record labels that give it certain rights to use
its artists’ music in exchange for royalty payments. Experts suggested that
YouTube could broaden the scope of its licenses to include a wide array films,
TV shows and games as well so that licensed content is cleared by its filters.
But since such broad licenses would require platforms to
shell out lots of cash, this solution could actually prove even more
exclusionary for emerging platforms.
“I don’t really want a world where YouTube is the only
platform I can look to for videos,” McSherry said. “All we are doing is making
sure they can continue to be the dominant video player and make sure they can
exercise enormous power over our video experience.”
Hope in impracticality
For critics of the directive, one last hope is that the
rules as they are written will be too impractical to work.
“In the short term, I’m not that worried about it,” said
Tom Honeyands, who hosts the YouTube tech review channel “The Tech Chap ” with
over half a million subscribers. “I just think it’s far too vague to ever be
much of a threat besides the platforms doing their best.”
Legal experts believe the fate of the European internet
will ultimately play out in the courts.
“I think that what’s going to happen is that countries
are going to do the best they can because that’s what they have to do now to
try to implement it. But then we are going to see a lot of litigation as this
plays out,” McSherry said, “and I think that’s the arena where the deep flaws
in the proposal are going to become very, very clear.”
But several also acknowledged that the fears around the
directive could prove to be for naught as platforms and users get used to the
new restrictions.
“We’d seen this with GDPR,” said Georgia Shriane, senior
associate solicitor at the U.K.-based law firm Boyes Turner, referring to the
EU’s General Data Protection Regulation, which went into effect last May. A
year later, people have adjusted despite initial blowback.
“With these things they start out being a bit of a big
pain in the backside,” said Jaclyn Wilkins, a U.K.-based lawyer with a focus on
gaming, tech and digital media at Charles Russell Speechlys. “But eventually
people start to conform and it becomes the new normal.”
Bull, the YouTube rapper, still can’t fathom the internet
under the directive.
“Either we are going to be in a really draconian,
dystopian internet where everything is filtered like it is in China,” Bull
said, “or they’ll realize it’s not going to work and we’ll just have to go back
to the drawing board.”
YouTube, for its part, is not ready to throw its hands up
on the directive.
“While the Directive has passed, there is still time to
affect the final implementation to avoid some of the worst unintended
consequences,” Wojcicki wrote on the creators blog, referring to the two years
EU member states have to comply with the directive. “This is not the end of our
movement but only the beginning.”
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