The growth of the internet and user-generated content in the past 15 years has been underpinned by speed and ease of use. The foundations for this are commonly referred to as “safe harbour” provisions in copyright law. This means that organisations that allow users to upload content to their websites – Wikipedia, YouTube, Facebook et al – are not liable for copyright infringement of their users, but are required to speedily remove content after the fact, if a copyright makes a complaint. Now, through article 13 of its new copyright directive, the EU is curtailing these safe harbour provisions, and thereby challenging the very basis of a free and open internet.
Imagine that you upload content to a video-sharing website and then have to wait for days for it to appear after it is vetted. That could be the future of the internet in the EU.
The EU’s actions appear to be targeted at reducing the immense power of the likes of Facebook and Google. There is no question that their power needs to be reduced – but copyright law is not the correct approach. Blindly removing copyrighted content uploaded by users will snag legitimate fair-uses and inevitably result in a chilling effect on criticism, debate and commentary – so ultimately this threatens democracy and society at a time when it is especially vulnerable.
At best, automated technologies or moderators will remove content merely to err on the side of caution and avoid any possible trouble.
To quell the unfettered power of the internet giants of today, coming down hard on anti-competitive practices is instead the most appropriate path. For example, a company with more than a billion downloads should not be allowed to promote the download of another app, or use data from one app to drive usage of another. I am not suggesting that this idea be implemented without careful consideration. But if market power is the problem, then that’s how power should be controlled.
Regardless, in the absence of that, the EU’s proposed copyright law amendments are ill-advised. It creates barriers to entry for newcomers to challenge incumbents, and only serves to strengthen the already powerful. Google and Facebook have the economic wherewithal to oversee all the content uploaded to their platforms. While it might increase costs for them, the vastly greater effect is on financially weaker competitors and any new, disruptive entrants on the horizon. New businesses will be hindered, forced to exist without the freedom that Google and Facebook once enjoyed to become the giants they are today. Instead of tackling the power of the internet giants, the new law will further secure their dominance.
Two aspects of the EU law stand out. First, the notable exception from this law is for “non-profit encyclopedias” – which is essentially code for “Wikipedia”. Wikipedia should recognise the exception for what it is – a clever way to buy its silence. And Wikipedia should rise above it and simply not accept it. Today, the site is a manifestation of a free and open internet.
Wikipedia, if true to its ideals, should go dark in protest.
Second, the EU seems to have recognised that innovation can be hindered and competition thwarted with article 13. As a result, there seems to be exceptions designed for small and young companies. To avail of this exception, companies must be less than three years old. But what about companies that take longer to grow? If the EU really wants to curtail the tech giants, they should go by market capitalisation, revenue and funds raised: say for example, a company that is valued at $1bn, has $50m in revenue, or has raised cumulatively at least $200m. These numbers could be anything, but at least a calibrated and targeted approach should be used – not arbitrary timings.
Now, more than ever, we need more competition and not misguided laws that will only enhance rather than limit the relative power of the internet behemoths. We need this not just for the future of the internet, but for the future of democracy and society as a whole.
• Carlos Fernandes is a Singapore-based technology investor, entrepreneur and public policy adviser. He is also a World Economic Forum young global leader
