Watch Out: Upload Filters Are Coming to a Social Media Platform Near You
Glyn Moody

Copyright forms a constant background to social media activity, and most people who are active in this field are aware that copyright has a big impact on what can and can’t be put online. But copyright has an unusual characteristic that may be less obvious to many people. Unlike other areas, where there is give and take, copyright only gets stronger and broader: it is never wound back in significant ways. That’s seen most clearly by comparing the first modern copyright law, the 1710 Statute of Anne, with today’s equivalents. The former specified copyright protection for 14 years, plus the option to extend it with another 14 years – 28 years maximum; under modern legislation, copyright term is generally for the life of the creator plus 70 years – typically over 100 years in most countries.

This is the “copyright ratchet”, that keeps on lengthening and broadening the law. One country decides for whatever reason to make its copyright longer, or to increase the penalties for infringement. Once that happens, the copyright industry starts complaining to other governments around the world that creators are less protected in those regions, and that copyright law must be strengthened to match the new level of protection that has been brought in one country. Once the overall level of copyright protection has been increased around the globe, the process begins again. This happens behind the scenes and over years, and is generally invisible to the general public unless people are paying close attention. But it can have serious consequences, not least for the world of social media.

For example, The European Union recently passed a copyright law that takes a new approach to tackling unauthorized uploads of material to major platforms like YouTube, Facebook and Instagram. Hitherto, the copyright industry has mainly used takedown requests that require online platforms to remove allegedly infringing material – Google alone has received more than 5.7 billion such requests so far. The new EU Copyright Directive will require the major online services to become much more pro-active in blocking material.

Because of the huge volume of uploads – in 2020, more than 500 hours of video were uploaded to YouTube every minute – the only way this can be carried out is using automated upload filters based on algorithms. YouTube adopted this approach voluntarily some years back, and the many failures of its Content ID system to allow lawful material to be uploaded are a good demonstration of the limits of this approach.

The upload filters required by the new EU law will be even worse. They will be required to block any kind of unauthorized material – not just videos and music, as is the case for YouTube. That means that algorithms must somehow recognize when texts, images, music scores, software, and 3D models among others are authorized or not – an even more difficult task than the one that Content ID already does poorly.

A recent judgment by the EU’s top court ruled that this obligation to review material that users wish to upload must be accompanied by safeguards for freedom of expression and information. It said that a fair balance must be struck, but no details were given on how this might be achieved. As a result, no one is sure exactly how the new EU law on upload filters will work in practice.

That hasn’t stopped the copyright industry from pushing for similar laws in other jurisdictions – that “copyright ratchet” at work again. For example, in the US a new “Strengthening Measures to Advance Rights Technologies Copyright Act of 2022” or “SMART Copyright Act of 2022” has been proposed that would enable upload filters to be imposed on services in the US.

One thing is certain: the impact of upload filters will be felt first in the EU. People active on social media would do well to observe how all this plays out there, since there will be considerable pressure from the copyright industry and lobbyists to roll it out elsewhere – whether or not it makes sense to do so.

Glyn Moody has been writing about copyright, digital rights and the internet for over 30 years. He is the author of “Walled Culture: How Big Content Uses Technology and the Law to Lock Down Culture and Keep Creators Poor”, which can be downloaded as a free ebook from the Walled Culture site.