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The Welcoming of Art 17 of EU Copyright Directive: The vanishment of EU content creators?

image: https://www.kitguru.net/channel/generaltech/damien-cox/youtube-speaks-out-against-eus-article-13-copyright-changes/

              Some may say the darkest age has finally come for the content creators within EU. Whether this extreme opinion is true or not, I can affirm that this notorious Article surely bring rage among a number of content creators. However, the main actor in this scenario is not the creator itself but the content-sharing platform, such as, YouTube, the most popular platform in the world. And for the one who have never heard about this platform, you should seriously consider asking yourself what you have been doing in your life! That’s the whole another thing. However, let us focus to the more important topic on how this amended Article will affect the future of online content creativity.

              What is Article 17 (formerly Article 13) (full text) exactly? Well, basically, YouTube may find itself be held liable if there are any copyright-protected movies and music posted on the platform without the consent of the owner of those work and there are no action taken from YouTube. Of course, some may say how is that different from the YouTube current Content ID system which also detecting and blocking or monetizing unauthorized work as well. Why content creators have to be panic now? The most obvious difference is the shifting of duty against the infringement. In the case of Content ID system, a copyright owner has a duty to put his/her videos in the system. This let the system to scan the uploaded videos by comparing with the videos submitted in prior by content owners. In other words, YouTube only act in the passive way. On the other hand, with the appliance of Article 17, that will definitely put YouTube in the active position since it is the duty of YouTube to ensure that all posted videos already receive the permission from the copyright owner and, to remove any infringing that it was made aware of. This means YouTube will take a massive burden than ever before.

             As a result, because YouTube is the profit-generated platform, of course, it must protect its billion-dollar business first. The more paranoid from losing its revenue from the infringement, the more restrict it gets with the copyright detection. Mainly, the time when this blackhole happen is the time for most YouTubers to face their real nightmare which is the starting of rigorous ‘blocking content’ season. Don’t get me wrong, I still feel like there need to be some kind of protection provided for the copyright owner. However, I don’t think putting pressure to the platform is the way to go. Not even it will prevent the creativity of creators (e.g. to make parody videos), it can also affect the copyright owner as well in the sense that most parody will urge the viewer to go back to the original video. Less parody videos, less views on the original ones, less profit for the owner.

             Imagine this, what will happened if in the end, there are no parodies or memes for us to enjoy. The world without those would be the lamest and most boring world. No more of Trump singing Taylor Swift or Ariana Grande songs is not acceptable for me!

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Is ‘The Pirate Bay’ truly a super villain in the realm of illegal file-sharing?

image: https://tech.thaivisa.com/the-beginning-of-the-end-for-illegal-torrents-google-makes-it-harder-to-access-the-pirate-bay/17497/

              If you’ve never heard the name The Pirate Bay (TPB), the only assumption given is you might be one of the OGs who still buy DVDs or CDs for every single movie or song. So, for the one who have no idea what is TPB, briefly, it is one of the largest file-sharing platforms which allows users to upload and download any files in torrent form anywhere and anytime. But, hold on, torrent files mean nothing without a little transformation. That is, for users to be able to chill with their favorite movie, the process of download and file-conversion need to be done through BitTorrent programme. Not that hard, right? It is definitely easier than walking to the HMV and praying that the shop will have your movie. Surely, because of that much of convenience for providers and receivers of the file, it is also really easy if someone want to give or get some files that infringe the copyright law. But, is it fair for the platform like TPB to take full on responsibility from the infringement done to copyright owner?

             Let us take a look at the Stitching Brein v Ziggo case, the decision concluded by EUCJ is about the clarification of the infringement with regard to ‘public communication’ which TPB is accused of participating in. In the end, the court concluded, by the fact that the ‘operator of TPB was capable of managing and making available a sharing platform…’, that the action of TPB did fulfil the notion of ‘public communication’. The potential consequence is for TPB to get blocked from their current or future users. So, what is next for TPB? I can confirm that it is not the bright future for TPB since blocking means no one can dive through its website ever again, at least not in the near future!

             But, is it the right way to look at TPB as Cersei Lannister in this equation? My answer will certainly anger many of the authors, but I have to say TPB is more like Jamie than Cersei which is the mixure between good and bad. Stepping aside from the controversial GoT reference, my opinion on TPB is although it appears to be copyright infringement conducting by TPB, as one of the largest and well-known file-sharing platforms, TPB can be the stand for authors to distribute or show their work to the public for free. So, without the risk of spending excessive expenses, this platform could provide the opportunity for authors to produce more creative works. And, for the side of the consumer, it is much easier to find their favourite and, of course, legitimate works.

             My point here is the blocking of the platform is unnecessary. The less intense alternative I would like to suggest which somewhat imitate from Youtube automatic detection mechanism is for TPB to place some kind of the filter in order to screen and block only illegal content appeared on the site. In the end, it might be seen that this compromise path could potentially relieve, more or less, the complexity in the realm of online file-sharing and the protection of copyrighted work.  

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From ‘Distribution’ to ‘Public communication’: The drastic change in the right of digital exhaustion

gif: https://ebookfriendly.com/best-animated-gifs-books-reading/              

            We cannot deny that, now, we live in the e-commerce era. Every purchase is only one click away!.All you need is a strong internet connection and one of your many internet-connected devices. However, in present, if you want to buy your favourite e-books at the cheap price from someone who resell them, you may want to reconsider before deciding to put the Visa number. The reason is you could be the one who promote the illegal act by buying the material from the person who infringe the copyright. This can be happened in the situation where the exhaustion of right (i.e. digital exhaustion) is not come into play anymore. That is, the right to sell the copy still belongs to the first owner of the books.

             May I first take you to the traditional notion of the digital exhaustion. The notable case, UsedSoft (C‑128/11), was in favour of the idea of the digital exhaustion according to Article 4 of the Infosoc Directive 2001/29/EC which allow the distribution of the intangible digital purchased work (i.e. in this case, software). As a result, the original owner can no longer claim the distribution right over the software that have been sold.

             Nevertheless, it is because of the perfectly substitutable of these used products. For example, if someone sell you second handed with perfect condition e-books, but cheaper, who would say no. Therefore, it would seem unfair to the original owner of the copy since it can impede the right of the original owner to earn profits from the work created.  

             However, given the pending case, Tom Kabinet (C-263/18), the Dutch company, Tom Kabinet, has engaged in the reselling of used e-books. The management of the company is mainly sit on the ground of the exhaustion concept (i.e. the right to distribute the e-book was exhausted on initial sale by the copyright owner, so Tom Kabinet can resell the e-book without requiring permission.).

             The turning point is where the Advocate General (AG) Szpunar opined that the act of selling (i.e. generally considered as ‘distribution’ which subject in the principle of exhaustion could be interpreted as ‘public communication’ which fall outside the scope of the exhaustion. He confirmed that a single purchaser can be classed as ‘the public’, since they fall outside the copyright owner's ‘private circle’. (see the full document)

             Substantially, the implication of the AG opinion could massively affect the market of used intangible material. Maybe, this altered perspective can be one of efficient solutions to abstain from the complex attribute of these kind of work. However, although the allocation to ‘public communication’ may sound reasonable, how about when someone open second-handed book shop and sell them to others. Is it not the act of ‘public communication’ too? How can they be able to say that the case of the e-books is different from the other regular hardcopy books? This is the major flaw since it will definitely hinder the consistency of the copyright law.

Regardless of the outcome the CJEU will provide in the near future, the argument seems to be remained if the system of the copyright still cannot find the balance between the right of original and subsequent owners.