Will the EU Kill Video Streaming?

Will the EU Kill Video Streaming?

A copyright ‘directive’ could make it impossible for YouTube, much less an upstart, to do business.

By Brian Dellinger June 5, 2019 6:36 p.m. ET

The European Union’s Directive on Copyright in the Digital Single Market takes effect June 7. It is intended to update European policies regarding online intellectual property and shelter fledgling European technology companies against competition from Apple, Google and other foreign tech giants. The irony is that the new directive may end up hampering web-based initiatives everywhere—particularly the very companies it is meant to protect.

Of particular concern is Article 17, which limits the “use of protected content by online content-sharing services.” It would make social-media and video-streaming sites liable for preventing repeat instances of copyright infringement on their platforms. These sites function by allowing people to post content freely without waiting for review by human moderators, and a restrictive standard of liability would stifle the atmosphere of user-created content and popular images, videos and songs.

Under existing laws, like America’s Digital Millennium Copyright Act of 1998, a hosting site doesn’t become liable for copyright-infringing content posted by users until it is notified of the violation by the IP license holder, at which point it must remove the content. EU officials complain reasonably that this system struggles to keep up with the heavy volume of material posted to Google-owned YouTube and similar sites, with new illicit copies put up faster than they can be flagged and pulled down.

Yet the proposed solution imposes an unreasonable burden on the hosting sites. Under Article 17, sites must show they have “acted expeditiously, upon receiving a sufficiently substantiated notice from the rightholders, to disable access to, or to remove from, their websites the notified works or other subject matter, and made best efforts to prevent their future uploads.” In other words, once YouTube has been notified about an infringing video, the site becomes responsible not only for removing that copy of the work, but also for blocking any future attempts by users to post the same content, even before the new post has been flagged.

This standard is untenable. YouTube monitors copyright infringements as well as it does through an automated filtering system called Content ID, which reportedly cost about $100 million to develop. But even that system has its flaws, failing to catch videos that hide infringing content with simple tricks (like adding visual “noise” around the edges of the screen) while sometimes blocking legal use of copyrighted works for review or parody.

It’s unlikely that any filter in the near future will be able to inoculate platform sites against infringing content. And although the directive doesn’t mandate automated filtering, human monitoring would be prohibitively expensive for a site like YouTube, where users upload about 400 hours of video every minute.

Article 17 would have an even harsher effect on upstart sites. Niche platforms use the same speedy, user-driven upload options to compete with larger peers, but unlike Google, they are unlikely to have tens of millions of dollars to spend on filtering technology. The final version of Article 17 recognizes this burden and grants exceptions to smaller companies, but these protections end once a company’s annual sales reach €10 million, long before many would be able to afford state-of-the-art filtering. In this way the directive might hamper the growth of European web companies—the very thing it is intended to promote.

Making matters worse, an EU “directive” doesn’t have regulatory force, but merely sets priorities that must be translated into regulations or laws by all the member nations (including the six that voted against the copyright measure). Given the international nature of the web, whichever of those nations adopts the strictest interpretation of the directive will effectively set the limits for all the rest and potentially shape media-sharing rules the world over. It isn’t yet clear what form these final regulations will take. For now, content hosts must wait to see whether the emerging rules will pick winners, or whether they will all lose together.

Mr. Dellinger is a computer science professor at Grove City College.

Appeared in the June 6, 2019, print edition.


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