EU’s new copyright directive pleases content creators

The European Union's Copyright Directive endured no small measure of criticism on its way to passage. But it's given content creators the world over reason to celebrate.

Introduced as a way to fix the profit gap between creators and the internet platforms hosting them, the Directive on Copyright in the Digital Single Market received final approval from the EU Parliament on Tuesday.

The directive requires EU nations to conform to its new standards by 2021. Platforms that have existed for three years and generate more than €10 million a year will be on the hook for any infringing content posted on their website, even if it's been posted by a user and taken down once noticed.

The EU's new policy starkly contrasts with the U.S. system, which is largely defined by the Digital Millennium Copyright Act. Through safe harbor provisions, the act protects web hosts who make good faith efforts to self-monitor for unlawfully posted content.

The safe harbor provisions have been credited with helping the vulnerable websites of the halcyon internet days of 1998 flourish. But in the copyright and technology spaces, entertainment attorney Robert A. Jacobs said, the standards enacted two decades ago are millennia behind.

Jacobs, who heads Manatt, Phelps & Phillips LLP's entertainment litigation practice, said the act has established a nigh impassible burden for copyright owners seeking compensation for profit made from their works unlawfully.

While web hosts are required to monitor and take down infringing content, Jacobs said companies like YouTube -- which is owned by Google Inc. -- profit from clicks generated in the meantime. With a client list largely comprised of content creators, Jacobs admits he has reason to be optimistic about the EU's changes.

"The case law interpreting [the act] has been extremely beneficial to YouTube," Jacobs said. "Obviously, this will affect YouTube's business model, no doubt about it. But if there's more for content creators and less value retained by YouTube, that's a fair allocation from my perspective."

But Google and YouTube aren't alone in their opposition. Digital rights groups like the Electronic Frontier Foundation have condemned the changes, claiming the new standards could be used for censorship.

The filtering services required to preempt infringing content from being posted aren't perfect, and can sometimes mistake non-infringing content for a copy of infringing content.

Mark Lee, an intellectual property litigator at Rimon PC, said the filtering technology is also incredibly expensive. Google -- which claims it's primarily opposed to the changes because of its potentially industry-upending impact -- could endure the financial hit or, more likely, create its own internal filters. Smaller, more financially vulnerable companies wouldn't have that luxury, Lee said, and are understandably concerned.

It's possible the new EU laws would ultimately benefit from some adjustment, Lee said. But as an attorney who's been faced with the prospect of issuing 40,000 takedown notices for unauthorized postings of the Journey song "Don't Stop Believing," Lee said he's optimistic the change will be an overall benefit to content owners.

"It's not an easy burden for anyone to satisfy," Lee said. "But is it going to be a reasonable burden for those who profit from the online use to bear?"