·  by Abby Rives

Engine Submits Comments to EU on Implementing Copyright Policy Directive

Originally Posted On: Engine

Startup Internet platforms operating in the European Union may soon face complex and expensive rules to avoid liability when their users are accused of copyright infringement.

This week Engine submitted comments to the European Commission arguing for fair, balanced, and proportional implementation of the recent copyright policy directive known as Article 17. In our comments, we urged the Commission and Member States to avoid unduly burdensome or ambiguous laws that would create more cost and risk for startups, open doors to litigation, and give large companies a structural advantage over smaller rivals.

In April 2019, the EU adopted a Directive on copyright and related issues relevant to the Digital Single Market. In one section, known as Article 17, the Directive addresses intermediary liability and rearranges the way EU countries will hold certain online platforms liable for allegedly infringing user-generated posts. Unlike notice-and-takedown and safe harbor frameworks, such as the U.S.’s long-standing Digital Millennium Copyright Act (DMCA), the Directive instructs EU companies to hold some platforms liable for user-generated infringing content. As we have previously explained, Article 17 “will force startups and other platforms to use expensive and ineffective content moderation tools to police user-uploaded content.”

Most recently, the Commission published a series of questions about how Member States should go about implementing Article 17 in national law.

Our comments, in response to the Commission’s request, note how “[m]any (if not most) of the larger [Internet platforms] have already developed the technology they will need to comply with Article 17, negotiated with large rightsholder organizations to set up systems that address unauthorized uses of content, hired content moderators, and already possess the financial wherewithal to survive increased liability risks and costs associated with Article 17. Startups and smaller platforms are at a distinct and substantial disadvantage.

“Moreover, [emerging platforms] will be at an inherent disadvantage in trying to negotiate with large rightsholders. Large, established rightsholders and organizations have more bargaining power, and can use that power in ways that harm startups.”

Instead of adopting legal regimes that entrench larger, well-resourced, established organizations, we encourage the Commission and Member States to implement Article 17 in ways that seek to bring balance wherever possible.