Don’t Follow Europe’s Lead: American Copyright Law Works

Despite 100,000 protesters, over 5 million petition signatures and hundreds of international organizations who actively opposed the controversial copyright directive, the European Parliament approved legislation that will fundamentally change how Europeans post, share, learn, create and innovate on the internet. Big and small online platforms — from YouTube to a personal blog — can now be held liable for their users’ copyright infringement. The EU has two years to determine how to implement Article 13, but a week later, European leaders have already begun to admit that upload filters will be required for compliance.

Here in the United States, we already have a system of checks and balances that protects rightsholders and also promotes creativity and innovation. Section 512 of the Digital Millennium Copyright Act established the notice-and-takedown system, allowing rightsholders to notify a platform like YouTube if an uploaded video infringes on their copyright, but still providing flexibility if a post is flagged incorrectly or inaccurately. Section 512 allows for the free flow of creativity and innovation and guards against copyright infringement and censorship.

As the U.S. Copyright Office convenes the latest roundtable on Section 512, American policymakers should not look to Europeans for a new model. Our balanced copyright system works.

In fact, it’s not just working but thriving. More creativity is being generated and re-generated by more people in more places than ever before. In 2017 almost 17 million U.S. creators earned a baseline of $7 billion from posting their music, videos, art, crafts and other works online — 15 percent revenues growth in a single year. Internet platforms like Patreon, Etsy, Snapchat, Musical.ly, YouTube and TikTok empower creators to reach fans and paying consumers across the country and around the world.

The entertainment industry wants policymakers to think the sky is falling, but it’s not just the New Creative Economy that’s booming. Hollywood and the recording industry have seen record revenues and output thanks to the internet and online platforms. The Recording Industry Association of America announced 2018 was their best year in a decade with $9.8 billion in revenues, driven by a 42 percent increase in paid music streaming subscriptions on platforms like Apple Music and Spotify. Digital video revenues are also expected to grow from $64 billion to $119 billion in the next 5 years. Meanwhile, some of the top new movies and TV shows are thriving on online streaming platforms like Netflix and Hulu. “Stranger Things,” “The Handmaid’s Tale,” “Roma,” “The Crown” — all examples of TV shows and movies that were produced, loved and acclaimed thanks to the power of the internet.

Section 512 also serves as a legal cornerstone for the startup industry. The American balanced framework provides legal certainty to small startups and individual entrepreneurs, enabling them to host user-uploaded content without fear of liability. When deciding whether or not to invest, venture capitalists indicate that a country’s strong safe harbor provisions are more important than strong economic conditions. This balanced system means that startups actually have the opportunity to compete and challenge the established internet giants.

Without Section 512, startups would be forced to implement expensive moderating systems or else simply close up shop. Startups are already facing these concerns in Europe thanks to Article 13’s approval. This could endanger the creation of the next Google or the next Netflix. Startups need the certainty and flexibility of the American balanced copyright framework to develop and survive, and we need startups and small businesses in order to promote U.S. global competition, innovation and economic growth.

European policymakers have already endangered jobs and the free flow of information by approving the copyright directive. In comparison, the American balanced copyright system has resulted in blockbuster economic growth, never-before-seen levels of creativity and booming innovation. The United States can learn important lessons from the EU’s missteps. American policymakers should not upset the balance but instead support a working system that fuels important economic growth, new ideas and boundless creativity.

Joshua Lamel is the executive director for the Re:Create Coalition.