As the growth of a few digital giants with base in the United States and state intrusion into the online world have reached dimensions that were unimaginable just a decade ago, some critics speak of ‘surveillance capitalism’ as the new form of dictatorship. In the middle of the uncertainty about our digital future, lawmakers are seeking to determine what is the right level of regulatory interference in the context of this sector. The issues they are encountering is how to balance creative freedom, economic opportunity, and an individual’s right to privacy. It is a very complex legal category, yet the harmonization of internet law is key in a globalised world. The EU Copyright Directive—passed on April 15 by the EU Council—has been fiercely debated. Proponents see it as a step toward greater accountability on the internet, its opponents fear it stifles creativity and free speech. How then does this legislation propose to reshape the internet, and what impact, if any, will it have on the Middle East?
The complexity of internet regulation
In Europe, there have been multiple endeavors to harmonize copyright laws through the Berne Convention (1886), the Council Directive 91/250/EEC (Computer Programs Directive), and the Copyright Duration Directive in 1993. European states in the last 20 years have maintained a high level of autonomy with respect to copyright laws. Changes to these laws, which started during the 1990s through EU directives, have often attracted controversy and disagreement—specifically in the context of globalization and the penetration of giant conglomerates into diverse markets.
The internet has created a further layer of complexity when it comes to regulating copyright legislation, as illustrated by the heated debates over the EU Copyright Directive. The directive has been in the making for the past two years and was designed to modernize and update copyright legislation for the digital era. The European Parliament passed the directive in March, with its regulations passed by the European Council in April. The next stage is a two-year grace period in which member states will need to adopt these new regulations into national laws. The extraterritoriality of the law, however, means that it will be impactful across jurisdictions—similar to the EU data protection legislation.
Big players like YouTube, Twitter, Facebook, and Google will be heavily impacted by the directive as it imposes direct responsibility on these tech companies to monitor and prevent unlicensed copyrighted materials from being uploaded by users. The debates centered on the legislation are emphasizing the opposing views of EU legislators and the top tech players on how to find a balance between internet competition, users’ freedom of speech, and regulatory intervention.
Champions of the EU Copyright Directive argue that the internet has been unregulated for too long and that the likes of Google and Facebook have benefitted excessively from this lack of regulation in financial terms—Google’s online ad sales for 2019 is forecast at $102.4 billion, while Facebook’s is forecast at $67.2 billion according to eMarketer—at the expense of newspapers, writers, publishers, and record labels. The directive’s advocates are of the view that it protects artists, content creators, and writers—as opposed to tech giants.
Opponents of the law have argued that its implementation would have the effect of suppressing innovation and freedom of speech on the internet, and ultimately would damage newspapers by limiting their main source of revenue—advertising. They claim that the legislators have no knowledge on how the internet works and its technicalities—specifically “upload filters and artificial intelligence.” The result is that instead of protecting the “smaller guy,” the directive is imposing cumbersome responsibilities on tech companies that might have the effect of curbing news contributors. Many campaigners argue that the legislation is impractical and that artists do not need additional compensation in addition to the royalties they are already receiving. Opponents also argue that users globally will be penalized as their access to content will be limited. Hence, the costs and requirements of the law appear excessive and, ultimately, only the big players have the resources to navigate and comply with these laws, reasserting their supremacy.
For the directive’s advocates, however, there is a general belief that the big internet corporations have financial responsibilities toward copyright owners and content creators. They claim that the directive is designed to promote fairness and eradicate the corporate greed of tech players that caused the collapse of many traditional newspaper publishers and distributors.
The directive is trying to achieve its balancing act through a number of measures, mainly in the form of articles 11, 13, and 17. Article 11 relates to the sharing of news articles and lets publishers charge companies like Google when they share extracts of news stories, while articles 13 and 17 made it more difficult for tech giants to release user generated content. The directive has implemented a new requirement on “news service providers” to recognise the quality and contributions of writers. For example, the law requires that uploaded copyrighted materials—in the form of videos and music—be removed by the likes of Google, YouTube, and Facebook, and if they fail to do so via an automated system, they will be liable to the copyright owners. This means that any content linking to other copyrighted materials in different forms must be blocked.
At the heart of the debate has been the “parody ban.” What this means in practice is that while the directive is introducing a lot of restrictions against the uploading of copyrighted materials without permission, automatic filters are not yet able to distinguish between infringements and parodies. This could mean the blocking of memes in spite of the adjustments made to the directive designed to protect the use of such content “for purposes of critique, review, caricature, parody and pastiche.”
How will regulation affect the GCC?
The monitoring and protection of intellectual property and copyrights in the Gulf Cooperation Council (GCC) has been particularly demanding due to the fragmented legal frameworks, as well as the non-alignment between tech advances and the laws in the individual countries. Copyrighted materials and trademark laws in the Middle East require unification, and this is a recurrent global problem. Registration of copyrights in the GCC is not that frequent and litigation does not occur often. With respect to legislating copyright laws vis-à-vis the internet, the EU appears to have taken the lead, but this will have a global effect for sure, although its impact in the GCC is still unclear. The uploading of memes, videos, and photographs by GCC users could amount to plagiarism under the directive because of its extraterritoriality. There are many companies in GCC operating in Europe or advertising online, and compliance will be a requirement as sanctions could be imposed on businesses or individuals with European presence. The big tech giants have offices in the GCC, and they will clearly be affected by the directive.
It is possible to draw an analogy between Europe’s General Data Protection Regulation (GDPR), the new law on data privacy that came into effect on May 25, 2018, and the EU Copyright Directive. The GDPR allows individuals to demand that a company deletes or shares available personal data, and the EU is imposing significant penalties with a maximum of 4 percent of a company’s global turnover. The law extends to EU companies and individuals offering services to persons in the EU, hence it has a very extensive reach. It also protects non-European nationals that have a connection with Europe through EU companies. Similarly, the EU Copyright directive is likely to protect copyright owners, artists, and writers based in the GCC who are engaged in European businesses or have offices or travel to Europe. The internet is like a giant highway, and whoever starts driving on it will be subjected to its rules.
We have seldom seen such fiercely fought battles as we have seen recently with respect to the implementation of the directive—the hashtag #SaveYourInternet illustrates the vocality of it, and the global panic that resulted. However, at this stage it is very difficult to predict the practical implications of the laws and whether they will affect freedom of speech by limiting the volume of content uploaded and censoring the works of content creators as some of its critics assert. Such limitations could affect many jurisdictions, including the GCC. It appears that the intention of the regulators is to inject some level of discipline to rein in some of the potential imbalances between the creative industries and the technological giants that have characterized the internet in the last few years. No laws are set in stone, and there is always flexibility to reconsider and improve certain provisions, but some level of regulatory intervention is certainly needed to ensure that the internet does not become a new wild west.