Copyright Directive: the fake confrontation between the two heads of information capitalism

Opinion piece originally published in French in Le Monde Idées on September 9, 2018.

For a quarter of a century, we have been watching the same bad movie, in which the cultural industries use the law to wage war on their audience. At issue this time is Article 13 of the Copyright Directive currently under review in Brussels, on which the European Parliament will vote on September 12.

In its current form, this provision requires digital platforms (YouTube, Facebook, and the like) to use automated filtering tools as part of agreements with rights holders (such as Sacem). The aim? To identify content published by internet users and block any that includes copyrighted works. A form of prior, automated, and privatized censorship.

Nothing new, then. Since the mid-1990s, the cultural industries (music, cinema, publishing, etc.) have been constantly demanding that legislators and courts force Internet service providers and hosting providers to “collaborate” in the fight against the free exchange of cultural works on networks.

ACTA rejected in 2012

Even then, these debates had led to the mobilization of associations defending rights in the digital environment. As is the case today, they argued that the logic behind the agreement was dangerous, since it amounted to entrusting private companies with the role of monitoring and censoring communications on the Internet.

In Europe, these debates led to an unstable compromise in the form of a directive adopted in June 2000, which seemed to give victory to activists and players in the digital economy. Internet “technical intermediaries,” and in particular hosting providers, would no longer be targeted as long as they did not play an active role in the dissemination of contentious content. They would have to respond to legal requests to remove illegal publications, but states would not be able to impose a “general obligation to monitor” communications in order to detect and prevent such publications.

Since then, however, there has been a proliferation of initiatives aimed at imposing automatic filters. And in some cases, particularly in France, their promoters have won their cases in court. However, in two important rulings handed down in 2011 and 2012 in the name of protecting freedom of communication and privacy, the Court of Justice of the European Union opposed requests by a management company to require an access provider or host to implement such filters. In 2012, the European Parliament also rejected the Anti-Counterfeiting Trade Agreement (ACTA), which could have trivialized the use of these filtering tools on a global scale.

User surveillance

However, in the meantime, the political economy of the Internet has been profoundly shaken by the emergence of a new oligopoly, composed of a few firms almost entirely devoted to the algorithmic regulation of information. More than ten years ago, Google, under pressure from multinational entertainment companies, deployed a filtering system called Content ID within its subsidiary YouTube.

By automatically scanning all videos uploaded by users and comparing them to a database of copyrighted content, Content ID’s algorithms allow rights holders to block or monetize videos that include works to which they hold the rights. This is a system that Article 13 of the Copyright Directive seeks to generalize.

However, Content ID has led to numerous cases of censorship, with rights holders claiming works that did not belong to them. It also proves incapable of respecting the legal exceptions to copyright (quotation, parody, etc.) on which new artistic practices (remixes, mashups, etc.) are based. Google is therefore well placed to criticize Article 13 in the name of defending freedoms, in unison with other digital companies that have placed private censorship and user surveillance at the heart of their business models.

Inability to rethink cultural policies

The hypocrisy of the digital giants is matched by that of the cultural industries. Too busy defending a “proprietary” vision of copyright and repressing the sharing of works on peer-to-peer networks, they are proving incapable of rethinking cultural policies in the digital age. As a result, they are now reduced to pitiful negotiations with the big tech companies, which have taken advantage of their negligence to reap the rewards.This is precisely what is currently at stake with the copyright directive: the clash between the two heads of the hydra of information capitalism.

Cultural industries versus digital platforms, each seeking to secure maximum leeway in their negotiations for a form of privatized “global license” that will strengthen their oligopolistic positions to the detriment of both the public and artists.What can be done to break out of this vicious cycle? First, reject Article 13 and the world it represents, where public space and freedom of expression are subject to the decisions of opaque algorithms. If the European Parliament still wants to keep the European Union in the tradition of the rule of law, it will reaffirm the position it has held for nearly twenty years and reject it.And then what? We would like to believe, as we did in 2012 with the rejection of ACTA, that such a decision will mark the beginning of a rethinking of cultural and digital policies. But despite some encouraging signs from the EU to counter the dominance of GAFAM (Google, Apple, Facebook, Amazon, and Microsoft), it is highly likely that states will continue to compromise with the new lords of the public sphere…

Hence the importance of cultivating spaces of resistance that reconnect with the project of making the Internet a universal library, against the law if necessary.