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article imageOp-Ed: New EU copyright legislation – Clumsy, obsolete, or dangerous?

By Paul Wallis     Feb 16, 2019 in Internet
Brussels - New copyright law proposals being drafted by the European Union are already worrying a lot of people around the world. Under this legislation, copyright ownership could extend to individual links, words, and other materials.
The legislation as proposed is likely to create more confusion than it could ever possibly solve. If online sources are to be believed, the intention is to deliver a monetary value to copyright holders, but the working principles seem to achieve the exact opposite.
Under the most negative interpretations of the legislation proposal, (and the negative response from media has been almost universal) quotes, links to news sites, and other materials may require authorisation, financial payments, and in effect enforce copyright automatically. Links to news media, quotes, and even short extracts may require actual documented authorization.
This proposal may seriously affect smaller news sites, and even bloggers. Those familiar with the very cash-strapped smaller news sites and bloggers will tell you without hesitation that it's not a good idea from their perspective.
There is another, presumably unintended consequence: Many professional media used a broad range of external links, too. Scientific papers, for example, may also include a virtual encyclopaedia of citations from other sources. Bloggers, in turn, may use hyperlinks in their original intended form, which is to simply and quickly link to sources of information for readers.
Turning these very basic processes into an endless accountancy exercise cannot possibly work. It could do a lot of damage to those producing original materials, too, which is the exact opposite of the intention of the legislation.
The idea of monetizing copyright in real time is not new. There are in fact blockchain companies which are already working on copyright payment systems to directly monetize online and other media products for copyright holders. This type of payment system is a voluntary system, in which copyright holders can dictate how payments are received.
The blockchain approach is certainly a much better option than a blanket regulatory approach, which doesn't even allow much room for negotiation. Under a compliance scenario, it's more than likely that "lowest common denominator" terms will apply, in part because those paying for copyright materials will also have to demonstrate compliance, which costs a lot of time and money to do.
Completely unworkable? Not quite, but –
The EU is definitely doing the right thing in theory, in attempting to deliver value for copyright owners. Anyone who produces copyright material will tell you equally enthusiastically that getting money for their copyrighted materials is very difficult. Media companies, publishers, and other decorative elements in global media are not exactly famous for their generosity. Many media deals can be iffy at best, in terms of remuneration.
That said, there is one massive obstacle to the EU proposal – Everybody knows how the current system works. Creating a new system, without any particular precedent, and without a clear cut "what's okay and what's not okay" legal definition is going to be extremely difficult.
The EU can expect multiple legal challenges to this legislation, and what might be said to be a virtual bonanza for litigation in European courts. From a purely bureaucratic perspective, it could also blow out the costs of administering copyright law in the European Union exponentially.
Copyright law is one of the most sensitive, and highly contested, areas of law around the world. Copyright law also includes various forms of intellectual property rights, including patents, trademarks, and a host of other materials which are routinely copyrighted or otherwise registered in some form.
To say that creating a new legal framework for copyright law would be downright murderous can only be an understatement. This legislation may prove to be unworkable, simply because of the sheer volume of compliance requirements. I've worked in compliance environments, and I can tell you for a fact that at a certain statistical point in terms of volumes of cases, effective enforceability is highly questionable.
I think the EU means well, but has somehow managed to get hold of the exact opposite of the legislative means required to achieve its goals. The blockade approach is simple, it works, and it's already up and running. There is no point of dispute between copyright holders and copyright licensees, because the entire transaction is covered by standard contracts. Compare this to an environment where every single hyperlinks could be a court case, and you can see why the current EU proposals cannot be good ideas.
The other huge problem with the EU copyright law proposal is that it almost immediately becomes outdated. Blockchain is definitely going to be the financial dynamic of the future, for copyright materials, whether anyone likes it or not. It is highly efficient, it is transparent, and it is also extremely fast.
Enforcement of legislation is typically very slow, frustrating, and sometimes counter-productive, if it doesn't meet the needs of the parties involved. That enforcement is likely to be a lot slower, if the expected level of litigation is also part of the mix.
Exactly how this legislation is supposed to be enforced is another matter. Is it actually possible for the EU to achieve some sort of audit of individual hyperlinks, quotes, citations, references, all images published online, and practically anything which someone claims to be copyright?
Short answer, no. Billions of links, and millions of pieces of copyrighted material are published every day. It is extremely unlikely that this legislation could ever be more than partially efficient, and it may actually cause more problems than it could ever possibly solve. That is clumsy, and it's also likely to be disastrous for publishers, copyright holders, and everybody else involved.
One of the problems with the "link tax" idea for news media is that links are absolutely inevitable. It may not even be possible to achieve authorization in the kind of timeframes required by news media for current events.
In short, this legislation is looking very much like a massive fan-hitting exercise. From the European union perspective, it is also a massive disincentive for people to publish in the European Union. If this legislation does not work to a certain level of efficiency, does not deliver monetization, and is impossible to enforce, it is a gigantic mistake waiting to happen.
I strongly recommend the European Union take a very long very hard look at this legislation before making any decision. It would also be highly advisable for the EU to consider the blockchain option as the more efficient commercially acceptable approach to monetizing copyright materials.
The blockchain method does have some distance to go to cover all types of copyrighted materials, but it is a workable proposition and it can be made to work within any sort of compliance environment.
It should also be remembered that the media environment is changing. New types of copyrighted media product, and the general evolution of the Internet and Cloud, may conflict with this legislation.
The bottom-line – Let’s hope this proposal doesn't get as messy as it looks, because the legal conflicts alone, with or without regulatory niceties, could be a gigantic train wreck.
This opinion article was written by an independent writer. The opinions and views expressed herein are those of the author and are not necessarily intended to reflect those of
More about EU copyright law 2019, EU compliance copyright, link tax EU, EU copyright law and online publishing
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