This MBW op/ed comes from Amadea Choplin, Chief Operating Officer of Los Angeles-based digital rights technology platform, Pex.
From fashion to legislation, European trends are known to make their way across the world. There’s even an official term coined for it when it comes to policy — the ‘Brussels effect’ — where regulated entities outside of the European Union (EU) opt to comply with EU laws.
We saw this when it came to the General Data Protection Regulation (GDPR) implementation in 2018.
Europe has taken a more forward approach in areas of online policy reform – from content moderation, to antitrust, to the use of artificial intelligence – influencing eventual global policy shifts.
A similar phenomenon can be said for digital copyright reform, which hasn’t always received global attention, as relevant EU policy comes into effect.
Article 17 Right Now
This year, EU member states are adopting legislation implementing the EU Directive on Copyright in the Digital Single Market, which includes Article 17 – a section devoted to increasing the obligations of user-generated content (UGC) platforms and other online service providers with respect to copyrighted content uploaded by their users. In a nutshell, to avoid liability, platforms have to make ‘best efforts’ to either license copyrighted videos and songs in their users’ uploads, or take down infringing content and make sure that the song, video, or other creative work is not infringed upon again.
“Article 17 will have ripple effects for UGC platforms around the world.”
Although some claim that variations and delays in implementation could derail the initial goals of the Directive, six countries have put in place legislation changes already. Additionally just this week, the European Commission sent formal letters to all EU countries who have so far failed to amend their copyright rules, signaling its intent to drive the initiative to the finish line.
If the GDPR is any guide, and although it might take some time and litigation to set the bar of proportionality, Article 17 will have ripple effects for UGC platforms around the world – many of whom have a large presence in Europe and will need to comply, even if the United States does not take similar action.
How Copyright Reform Will Impact Content
UGC, featuring popular music and videos, is among the most popular material online. It drives users to platforms, helps creators build their brand, and provides deeper exposure for professional artists and their work. It’s also a $104 billion industry. So while some established social and streaming platforms operate with robust licensing agreements or have built their own recognition, attribution and dispute tools themselves (namely, YouTube and Facebook), many other platforms don’t have the in-house resources needed to comply with this new legislation.
“Article 17 is just the starting point in a rising tide of regulatory changes worldwide.”
Critics of the Directive fear it will lead to the “overblocking” of content and burdensome compliance considerations for platforms. But these fears are not grounded in the regulation, nor in the interests of the parties. First and foremost, the Directive mandates for both platforms and rightsholders to make ‘best efforts’ to license copyrighted videos or songs. The logic is for everyone to come around the table in a framework of business negotiation, rather than litigation. It’s a logic rooted in the idea that platforms, their users, advertisers, independent artists, and large rightsholders can all win if popular content continues to thrive.
Article 17 is just the starting point in a rising tide of regulatory changes worldwide. Canada has opened a consultation on digital copyright reform, Australia will produce draft legislation for comment later this year, and a June EU court decision reiterated that even platforms not subject to Article 17 should monitor for infringement to ensure compliance. Meanwhile, in the U.S., updates to Section 230 of the Communications Decency Act have garnered the most attention, with efforts to rework the Digital Millennium Copyright Act (DMCA) gaining steam after Senator Thom Tillis proposed draft legislation. We are also seeing an undeniable shift from creators and consumers as they increasingly expect social platforms to take greater responsibility over published content on their sites.
Opportunity for a Thriving Creator Economy
Growing up with a family in the live arts, I was lucky enough to be exposed from a young age to all kinds of shows and performances. Today, through UGC platforms, Gen Z can be on stage at the click of a button. For the next generation, platforms have an incredible opportunity to not only democratize access to creative content, but also allow artists to make a living from their work online.
“If properly implemented, Article 17 has the potential to bolster digital content and lead to new micro-licensing opportunities for all individuals in the creator economy, including platforms, creators, and rightsholders.”
This legislative tide is intimately linked to a cultural one, shifting the focus from the democratization of creative distribution to its monetization. Following in the footsteps of YouTube’s revenue share business model, top platforms like TikTok, Facebook, Snapchat, and others are launching creator funds to attract creators and maintain quality content for their users (and advertisers). These are business decisions, not charity. And this is just the beginning.
If properly implemented, Article 17 has the potential to bolster digital content and lead to new micro-licensing opportunities for all individuals in the creator economy, including platforms, creators, and rightsholders. And, just like the fact that user privacy online can be achieved without “breaking the Internet,” this reimagined model for copyright online is both desirable and achievable. We have the unique opportunity to support a new approach to copyright that will bring new benefits to the already thriving creator economy worldwide.Music Business Worldwide
