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The countdown is on: How to prepare for the EU Copyright Directive

David Ingham, Digital Partner – Media & Entertainment, Cognizant, discusses how and why businesses should prepare for the new EU copyright directive.

It was a three-year project involving governments, technology platforms, and copyright owners, which led – finally – to the European Parliament passing new copyright rules for the digital era. Now, the countdown to implementing changes has started. The so-called controversial articles under the new Copyright Directive – Articles 15 and 17 – will fundamentally change the entire online landscape and require a drastic shake-up in operations for technology and media platforms. Article 17 will see online platforms become formally and immediately liable for content uploaded to their sites in breach of copyright – in essence, correctly defining liability. Under Article 15, news aggregators such as Google, LinkedIn, and Facebook will need to pay publishers a fee for distributing news links.

There has been a great deal of discussion around what the new legislation will mean for the online landscape in a broad sense; however, little focus has been placed on what both technology platforms and copyright owners need to do to prepare for it.

It may seem a distant date at this stage, but the 7th June 2021 deadline for the Copyright Directive to come into effect will roll around more quickly than anticipated. Take the example of GDPR, where the industry was given a two-year implementation window to effect the necessary changes to operations. What transpired in the end was a case of many organisations waiting for the better part of the intervening two years, then rushing in new practices at the last moment.

With the clock ticking and substantial changes required to address the new rules that could change – or even break – the internet, those affected need to start planning and making changes now.

With financial opportunity comes administrative responsibility

The good news is that the legislation, specifically Article 17, will introduce new opportunities for rights holders to monetise content. However, with broadened commercial prospects comes a significant administrative burden. When it comes to policing material, there will be a newfound onus on the copyright owners to lay the groundwork for technology platforms to watch out for copyrighted material: rights owners will need to submit their content ahead of release to the likes of YouTube so it can monitor for breaches on the platform.

While many of these copyright owners already have piracy teams (often called content protection teams) in place, this function will need to be expanded with new monitoring, content submission, and licensing processes. This spans from increased content protection operations through to leak management, ad hoc scans, and search results delisting.

The Copyright Directive transforms the business of copyright for rights holders, shifting it from a cost centre to a profit operation. To do this, the expanded content protection function at media and entertainment companies will need to monitor online platforms to find the instances of infringement and increase the involvement of legal teams to seek remuneration.

New laws call for technology overhaul

There has been understandable resistance from the major technology platforms to the new Copyright Directive. Some have even gone so far as to link the directive with an attack on freedom of expression. The UN’s special rapporteur on freedom of opinion and expression, David Kaye, said it “would imperil the future of information diversity and media pluralism in Europe”.

The new rules will see technology platforms face real monetary penalties for housing content in breach of copyright and they will need to overhaul their copyright policing practices before the June 2021 deadline. Given the hefty changes required, foundations should start being laid now. The UN’s David Kaye highlighted the significant investment involved in installing and maintaining content filtering infrastructure, suggesting only the biggest players would be able to afford these technologies. This therefore raises concerns for smaller news aggregators and content sharing platforms.

While the onus is on copyright owners to share content before release, once the platforms receive these copies, the clock starts. Platforms will need to actively monitor all uploads and posts for duplicates of the content – even if it is just the first two minutes of a film recorded in the theatre. Furthermore, given the global nature of these platforms and the trickle-down effect of such sweeping legislation, it is likely operations will need to be amended in every region.

Responsible for matching uploads against the content submitted and filtering it off their sites, these platforms will need to introduce substantial content monitoring systems and lean on smart technology. Artificial intelligence (AI) and logical filters can augment some of these processes, supported by new business divisions to oversee the systems and content moderation teams that proactively search for and remove copyright material. Without technology augmenting some of this process, it could easily become a constant game of whack-a-mole, where one content breach is manually identified and removed while multiple copies pop up elsewhere.

Europe has often led the way when it comes to the legislation of technology companies. In the US, for example, calls are getting louder for Congress to pass a consumer data privacy law similar to GDPR. While it remains to be seen exactly how each country within the European Union will implement the specifics of the Copyright Directive, the World Wide Web is just that – worldwide – and there is no doubt the new rules will have a knock-on effect across the world, changing the course of business altogether for copyright owners and technology platforms. Businesses impacted by the copyright legislation need to be developing a considered structure to address the new rules now – both for copyright owners to take advantage of the law when it goes live and for technology platforms to cover their backs.