Dark Skies for International Copyright: 2016 in Review


It’s hard to imagine that a year ago we were celebrating “positive movement” towards reforms to European copyright law, expecting that the European Commission would be soon proposing new copyright exceptions and other measures to modernize Europe’s aging copyright regime. Instead, what we got was a proposal to force user-generated content websites to do deals with copyright holders to scan and filter users’ uploads, along with a proposal to give news publishers the power to impose a link tax on third-party websites such as news aggregators.

There were also few legislative sops thrown to users and creators—a slight relaxation of national barriers to online TV services within Europe and some narrowly-drafted exceptions to allow text and data mining by research organizations, online illustration for teaching, and preservation of cultural heritage by libraries and archives. But the headline threats of the European Commission’s proposal—the upload filtering and the link tax—outweigh these modest benefits. Thankfully the deal is not quite yet done, and negotiations over compromises to the European Commission’s proposals will continue into the New Year.

Users didn’t fare much better in the European courts. The European Court of Justice, in a particularly bad decision, ruled that a website that merely links to copyright-infringing material can be held liable for copyright infringement. We predicted at the time that the decision would result in new copyright lawsuits against websites for innocently hosting such links, and it hasn’t taken long for this to prove true. TorrentFreak reported this month on one such case, in which a website operator was held liable for linking to another website which reproduced a Creative Commons–licensed photo without including attribution of the photographer, as required by the license. The success of the World Wide Web was built upon the freedom to link to external resources without permission—a freedom that this atrocious series of court decisions has now curtailed.

2016 wasn’t a year noted for its bright sides, but if there are any for international copyright, it must be in the defeat of the Trans-Pacific Partnership in the United States, which would otherwise have locked down many of the worst aspects of U.S. copyright law such as its life-plus-70-year copyright term, its prohibition on DRM circumvention, and its outlandish civil and criminal penalties for copyright infringement. Even this victory, though, is proving a little bitter, as several of the TPP countries are continuing moves to ratify the agreement and to amend their laws as if in preparation for it to come into force. Thankfully the implementing legislation that we have seen so far has been conditional on the unlikely circumstance of the TPP coming into effect (we originally reported that Japan’s implementation would be unconditional, but have since learned otherwise).

It it too much to hope for a rosier dawn next year? The last twelve months in copyright give us yet another reason to hope for a better 2017, and all the more motivation to play our part in making it happen.