A just directive always adheres to the principles of legal philosophy. The Directive on Copyright in the Digital Single Market, passed by the European Parliament, is (in its current form) failing these principles spectacularly. That the legislators did not even try to disguise their true intentions is audacious.
What reasons ever the European Parliament might have had to pass the regulation in this form, will probably remain a mystery to everyone affected. Even at first reading, it becomes clear that protecting creators’ and copyright holders’ rights was not a central goal of the effort.
Its justification is questionable at best (the list of alleged key goals itself sounds like a parody of lawmaking), it fails to provide legal certainty (especially for individual — as opposed to corporate — copyright holders and creators), and its validity is the dark matter of interpretation (as the conclusion hardly addresses its premise, let alone real issues the directive is supposed to settle). This defect is particularly obvious in the infamous Articles 11 and 13 (now 15 and 17), commonly dubbed “link tax” and “upload filter” respectively.
Don’t Hate the (Global) Players, Hate the (Local) Cheaters
Try as I may, I cannot see how “artists” will be “compensated in a fairer way”, or the works of online publishers (or copyright in general) better protected. What I do see, however, is that the directive specifically aims to oblige any passive parties to prevent (possible) infringements rather than hold those accountable who actually commit violations.
That’s about as reasonable as blaming the builders of a motorway for raging drivers. They already set up speed limits and warning signs. What else do you expect? Road blocks on the fast lane? Potholes? Induced traffic jams? Let’s be reasonable, shall we?
There may be shady platforms, I don’t know — and each one is one too many — but I have yet to find a data streaming or sharing service or a “company hosting user–generated content” that cordially invites users to upload onto and store illicitly acquired data on their servers. Quite to the contrary, all services (of good reputation) do (and always did) make it clear that they do not tolerate illegal action.
Would You Read the Bloody Code of Conduct Already?
Seriously, what is so difficult to understand, or misleading? “If it ain’t your shit, we are not interested! Go away!” Is it better now? Good, because that’s what all online services, big and small, have been telling their prospective users all the time — if perhaps in slightly less certain terms.
How can it be justified to impose ever stricter rules on those parties that have already done everything in their power to uphold laws? “Terms and Conditions” have been written and made accessible to the prospective user for a reason; everyone old enough and able to create an account with any one online service may be considered old enough and able to read and comply with these guidelines. Presuming as much is not careless or negligent, but reasonable — otherwise every citizen would have to be incapacitated for no apparent reason.
Copyright vs. Data Protection Is a Zero–sum Game
The only logical step online services have not yet taken to make sure that everyone complies with their rules is a mandatory proof of identity upon creating an account; perhaps it is about time to do so. It’s beyond me why they haven’t already introduced such a policy, to be honest.
Those who think the General Data Protection Regulation (GDPR) would protect them against having to share personal data, may want to read that directive again.
Every enterprise is not only entitled but even obliged to hold case relevant personal data they collected in their records for as long as individual applicable laws require — possibly for years after expiration of a contract or transaction, in other words.
That’s what one gets when laws are made without foresight — or clear legal and moral justification: The effects of the upcoming copyright regulation could quickly counteract the basic motivation of the GDPR — to prevent illicit proliferation of personal data (provided this was the GDPR’s true motivation).
A Quick Thought Model Anyone?
Yes, I do think there is plenty of reason to be sceptical in this respect. Fancy a cute little thought model? Here you go:
(Disclaimer: This experiment complies with European data policies. No live data were harmed in this experiment.)
Let’s assume you make use of your right to check what personal data a well–known, large “platform hosting user–generated content” stores on their servers — and have it deleted, in doubt — as entitled by the GDPR.
For simplicity’s sake, I will assume your name to be John Doe, you were born on 1 January 1990, and you dwell in 123 T–Model Lane, Just–over–There, Divided Fiefdom. Your e–mail is firstname.lastname@example.org and your credit card number is 1234 5678 9098 7654 (CVC: 321).
(Disclaimer: Any resemblance to persons, living or dead, real or fictitious, and places, here or there, is coincidental and not intended by this writer.)
Now, you contact mentioned well–known, large “platform hosting user–generated content” (that shall remain unnamed here) and demand (you don’t have to ask politely, it’s your damn right to do so, after all) all data they collected from (and about) you, whether it may be used to identify you or not, be delivered to your inbox inside of a month. They comply without ado, and all’s good. Or is it?
Well, it depends. If they took their responsibility to safeguard the data they collect seriously, they would have encrypted it to keep it relatively secure, even if someone managed to gain unauthorised access to their system.
Consequently, they would have to make you provide some reliable identification first, or risk to provide the wrong John Doe with all your formerly relatively secure credentials — in a universally accessible format, no less. See the logical problem of this regulation?
To the company storing your private data, you are merely a digital persona, real or fictitious, living or dead, unless they have a reliable way of checking the information you provide for validity. They have to trust you, for without mutual trust the digital realm cannot exist, or work to effect and everyone’s comfort.
So if you happen to be John Doe (the one described above), you exercised an empty right. In the worst case (the person making the request is not you, but someone who, one way or another, gained access to your relatively insecure private system), however, this exercise would cost you, the real John Doe, sensitive data that are now in unknown hands.
Lo and behold!
Without forgery–proof identity control, anyone who somehow gained access to your e–mail credentials could easily retrieve more sensitive data by invoking that right, pretending to be you. Yet to establish forgery–proof identity control, you would have to give up some of your “privacy” and provide even more sensitive data. It's a dilemma.
Okay, but How Is That Related to the Copyright (Violation) Issue?
Well, think about it like someone who tries to sell services (perfectly unrelated to the matter in question) and is not particularly fond of having to pay enormous fines for infringements committed by “customers” who use your services free of charge. What would you do?
Option one: You try to avoid fines and exclude everyone who lives under a jurisdiction that allows to sue you for such infringements from your service. That would not be nice, but rather effective.
Option two: You accept the fines and pass them on to those customers who actually committed the violation. To this end, you would have to identify the offenders beyond any reasonable doubt (or any recourse claims would fly in your face).
The first option would prohibit some 500 million users (the vast majority of which being perfectly innocent) from using mentioned services (without any guarantee that such offences won’t occur, behind their back, without the possibility of gaining knowledge of these cases), and the second would bring this abominable personal data protection nonsense into play again. Either option would hurt a vast number of honest users, without any gain for those few who believe to be in the right.
So What’s the Story?
Naturally, I cannot produce any substantial evidence, but I have a notion — and when it comes to either trust some faceless eggheads in an ivory tower far off yonder or my gut feeling, making a decision is not the most difficult of tasks.
Envy and greed have always been strong motives that have instigated unspeakable acts. And envy and greed are the two emotions that instantly come to mind when I think of this strange “ménage à trois” of European legislators, the Internet, and profitable companies abroad.
Actually, it makes no sense to conceal their names, because it is clear to everyone who the real targets and what the actual goals of these “regulations” are. The question is why we still don’t have directives that allow serious European competitors of Google, or Facebook, or YouTube, etc. to emerge.
Trying to tax these enterprises through the back door for being more successful than we are — or punish them for alleged violations — is pathetic; and similarly pathetic is jumping the bandwagon and claiming losses because of “copyright violations”, to be honest.
Who is to believe that YouTube profits from your creative power because your widely unknown song happens to be played in a video that was uploaded to their server by an amateur? That’s not only pathetic, it’s insane.
They sell adverts, and everyone who has watched more than a handful of videos on their platform already knows that these adverts don’t appear in unpopular or mostly ignored videos. Consequently, they don’t make money until a video has scored a large number of individual views. So when and how exactly did the rip–off occur, if no one outside a small circle of “fans” has ever heard of those songs and their creators, who now pretend to lose money while YouTube profits from their creativity?
Is it possible that the claimants’ reports are simply ignored because these cannot prove their copyright without giving up their “sacred” anonymity? No, wait! Every idiot can “flag” a video on YouTube, anonymously. And videos that are found to violate community guidelines are immediately taken down (or, in case the violation is found to be merely audible, they are muted). That’s been common procedure for quite a while now. It really wouldn’t have taken a directive to address this “matter”.
A Case of Anticipatory Obedience
At times, YouTube’s diligence in this respect reaches comical proportions; they go much further than any applicable law would demand.
The other day, I “visited” one of my favourite “Youtubers”. She is an excellent musician in her own right (which is to say, she really has no need to attract viewers with copyrighted music), and by the time I arrived she had just started a live session. The funny thing with live sessions is, you cannot not really plan them. Visitors mention something “out of the blue”, and you have to go with the flow or risk being considered arrogant by some.
It so happened that someone mentioned a song that was supposed to have the same chord progression as a song of which she had just played seven or eight bars by ear. Since she had not heard mentioned song in a long time (a rather famous piece by a band that used to be popular several decades ago), she launched a paid streaming service (i.e., a platform that is known to pay royalties) with the intention to bring the tune back to her memory.
The heads up from YouTube’s “Copyright Sheriff” came almost instantly (four or five bars into the song): “Our algorithm detected copyrighted material.” Stop it, or else … She instantly turned off the streaming service, and played the song by ear. After all, she had already heard the second chord. The rest is simply a matter of music theory (of which she probably knows more than the band who had written the song in question).
End of this little episode. Here’s the question you may take home to consider thoroughly (no worries, it’s a “copyleft” thought, no strings attached):
What’s more likely? That the once popular band lost royalties because she “broadcast” a short phrase of their copyrighted song in a video, or that some of her viewers switched to a paid streaming service and listened to the original after the live session? Some old–school listeners might even have bought a hard copy of it from a brick–and–mortar vendor, the next day.
Whatever may have happened after that live stream, the band has been compensated for their effort — the online streaming service did pay royalties, an influencer on a different popular platform voluntarily acted as a multiplier (advertising their song free of charge) and brought it to an unknown number of people’s attention (excellent rendition included), and she publicly endorsed it by praising its quality.
What would be the alternative? If we consider what she did a rip–off, then everyone turning on the radio, or TV, or stereo system, while having guests at home or giving someone a ride in the car, would have to be considered a criminal. If such happens to be your view on the matter, you really don’t deserve fans, regardless of how great an artist you might (believe to) be.
The Daydreams and Nightmares of Online Publishers
Seriously, if you don’t see the potential of such services for your career or cannot figure out how they work (or how to use them to effect), then learn the ropes of this business, but stop blaming others for your failure, just because they receive more attention than you.
No one (in this particular context) is making money (that belongs to you). That’s just your imagination, your nightmare (or daydream). If you were popular enough to count, you would not care about those videos at all. You would consider them free marketing.
Did you never wonder why none of the true celebrities (those who are copied thousands of times every day) in your genre ever rushed to side with you, support your case? The simple answer is: They don’t even know you exist — and, quite honestly, you don’t have much of a case, either.
Of course, you don’t believe me. So here’s the dare: Compose a song (or an entire album), store it on a server that allows you to control all downloads, and see how many people subscribe to receive access to your work.
If that doesn’t work for you, get some people on YouTube to create some buzz for your song (or album, or only your name), then check the number of new subscriptions on your own server … and then, if you still care, tell the world again how those “nasty Youtubers” cost you money.
Pretty much the same goes for “online news publishers” who allegedly are brought near extinction by those evil news aggregators (which is the official reason for the above mentioned “link tax”).
Like, seriously? All larger news publishers of some influence have had a (paid) subscription system in effect for the longest time. If you want access to more than a rather limited number of articles (usually three) per month you have to buy a subscription.
Yes, we all know this limitation can be easily circumvented, but that’s not the point, because the real serious ones won’t ever give you more than the first one and a half paragraphs of any article without paying a monthly fee (and being logged in). Curiously, none of them complain about losing money or unfair compensation. Go figure!
Thou Shalt Not Beg, Steal, or Borrow!
Yes, of course it's a jungle out there and some of the jungle dwellers are actually bastards, but that's neither a new problem nor a reason to set fire to the jungle to get rid of the bastards.
Let’s not pretend theft were a modern day phenomenon, it’s not to do with the Digital Age or Globalisation. The Code of Ur–Nammu (18th Century BCE), the thus far oldest known code of law, already addressed this issue. So it’s safe to assume that there have already been bastards in this jungle before biblical times, probably even since man developed a concept of the self.
The above mentioned code threatened theft with death. Did the ultimate punishment deter thieves? Obviously not. All relevant legal bodies since did care to address this issue, and yet we still have this debate.
That’s not to say, “crimes do happen, no matter what, let’s shred all established legal texts and live happily ever after”. That would be “hippy” ideology: down with the establishment and off with the clothes — a counter concept that obviously didn’t work to effect, either. Rather, it’s a reminder that harsh laws without adequate justification may be just as socially (or, in this case, creatively) devastating as the absence of law.
Creative Commons Would Not Cost an Arm and a Leg, but It Could Spare Us all a Lot of Trouble
A while ago, I wrote and published a book. Naturally, I was of the opinion that I, as its creator, did not only hold the copyright, but was also entitled to determine “which way the pony runs”. I couldn’t have been more wrong …
I consider it a matter of common courtesy to acknowledge and thank all contributors, and link to their respective online presence (if available). And I don’t see the point of annoying my readers with questionable (and rather useless) copyright disclaimers, commonly found in traditional books, or that abominable “Digital Restriction Management” (DRM). After all, everyone old enough to read knows that copying without express written consent of the owner is theft. Of course, it is illegal — just as it is illegal to abduct or kill me. I don’t have to mention that every time we meet, do I?
(“How’s it going today? Lest I forget, you are not supposed to kidnap or kill me.”)
Well, well, well. Jumping through all the hoops to make the finished product compliant with individual, rather arbitrary rules enforced by online vendors took longer than writing the first draft. I had rewritten some of the body once to stay out of court (upon friendly legal advice after the first draft), but I had to rewrite the front matter three times to get the book onto all shelves. If you don’t mind me saying so, that’s ridiculous.
Upholding copyright policies is good and important, but if the author voluntarily waives certain rights, it’s none of any distributor’s business. Would you agree with the bus driver who refuses to drive your child to school because you decided to put an orange instead of an apple into the kid’s lunch box? Yet, as absurd as it sounds, such was the situation. And I had to back down, every single time.
I had decided to publish under a Creative Commons Licence. First, the book was rejected, because “we won’t distribute it, unless you publish under traditional copyright”. Then, it was rejected, because “you mentioned one of our direct competitors”. And finally, one of the (allegedly most promising) distributors had me provide a second set of metadata as they apparently couldn’t process the open standard format, used to create tables of contents in e–books.
(So they are able to produce obscenely overpriced devices of all sorts, but they cannot afford a single programmer to rewrite their software to read an open–format file, complying with a global standard?)
Eventually, after a long debate with myself, I sat down and crafted a front matter that — much to my surprise — did pass all tests.
Seriously, people! What’s the matter with you? Publish under Creative Commons — or rather, let artists publish under Creative Commons — and YouTube (to stick with that example) could automatically add both the name of and a link to the original artist (they do have a database and know someone who runs a not quite unpopular search engine, you know) in the description of any one video as soon as they detect “copyrighted material” (alternatively, the person uploading the video could enter all featured songs and composers manually into a form, and YouTube generate the links from this information).
This way, they could also count and document the number of views original material scores, and so calculate royalties to the penny. As a side effect, original artists would have their name and work displayed to a wider audience (who may, for one reason or another, never before have heard of them) in the video’s description. Problem solved, everyone’s happy, no harm done. Unless, copyright infringement is not your actual concern …
You cannot approach a digital problem with analogue thinking and hope to get to the core of it. That’s not how it works.