Copyright Maximalism Exported

The entertainment industry from both sides of the Atlantic has recognized these conditions and chosen the EU as the ideal venue for pushing through extensions of copyright law, by presenting these demands as instruments to curb platform power. This is how the new EU copyright directive’s most controversial provision, Article 17 (previously known as Article 13), came about. Despite widespread protests, the public interest in free cultural exchange online has largely been drowned out in what has been presented as a conflict between the entertainment and tech industries. European lawmakers sided with the entertainment sector amid an atmosphere of ever louder criticism of US tech companies’ business practices in Brussels. Google and Facebook in particular have grown so unpopular with EU lawmakers over legitimate data protection, antitrust, and taxation concerns that any proposal that promises to curb their power is likely to gain traction. There is widespread academic consensus that Article 17 fails to meet its objectives and poses a significant danger to freedom of speech online. Nevertheless, the provision was narrowly adopted by the European Parliament and the Council, and it is not unlikely that similar rules could soon be pushed in the US.

There is a tried-and-tested tradition of Hollywood companies lobbying for stricter copyright in Europe, just to turn around to US policy-makers to demand the same extensions be enacted in domestic law, in order to “stay competitive”. This strategy was successful in the case of the Sonny Bono Copyright Act of 1998, which extended copyright terms to 70 years after the death of the author, following a similar term extension in Europe in 1993. The purpose of the term extension, according to the Senate report, was to “provide significant trade benefits by substantially harmonizing U.S. copyright law to that of the European Union”. Of course, the EU would have been unlikely to extend its copyright terms to begin with, had it not been for the lobbying by American entertainment companies. It should therefore not come as a surprise that the US Copyright Office has repeatedly referred to the work on the new EU copyright directive as a reason for considering the overhaul of the US framework for copyright liability of online platforms, enshrined on section 512 of the Digital Millennium Copyright Act.