Phil Muncaster investigates as experts claim new directive is damaging for small websites and individual rights holders
The European Union has a pretty good track record when it comes to progressive regulation and protecting individual freedoms. However, that reputation is under threat, after the European Parliament’s vote in favor of a controversial new copyright law on March 26 was greeted with widespread condemnation. Supported by the creative industries, the Copyright in the Digital Single Market Directive has been slammed by digital rights campaigners, academics, leading lights in the tech industry and users in their millions.
“Dark day for internet freedom”
So what’s so wrong about wanting to drive more funds from big tech platforms to copyright holders and journalists?
A Dark Day
Copyright law is complex, and it just got even more so with this directive, the product of years of debate and negotiation. Controversy swirls most around Article 11 and 13. Dubbed the “link tax,” the former aims to make news aggregation platforms pay publishers for featuring snippets of third-party news stories on their sites. Article 13 (now known as Article 17), makes internet platforms and sites responsible for the content they host rather than the individual users who upload it. At present, the individuals are primarily responsible, with the sites having a duty to remove infringing content only once notified by rights holders.
Proponents of Article 13 include scores of Europe’s biggest music and media organizations. They and the European Commission argue that the reforms are necessary to “protect creativity in the digital age” and strengthen a creative industry worth €915bn and employing nearly 12 million across the region. On the other side are big tech firms, like Google, who have lobbied heavily against the new rules, as well as digital rights groups and end users. Over 5.2 million signed an online petition against the directive and more than 100,000 have taken to the streets in protest.
They broadly argue that the new law amounts to internet censorship as it will force tech firms to pre-filter content before it can be uploaded. Although the European Commission and other supporters of the law have pointed out that it doesn’t explicitly call for upload filters, it’s hard to think of another way websites and platform owners could comply without doing so.
A group of leading internet figures – including Tim Berners-Lee, Jimmy Wales, Tim O’Reilly and Vint Cerf – signed an open letter to the European Parliament president last year that noted:
“Article 13 takes an unprecedented step towards the transformation of the internet from an open platform for sharing and innovation, into a tool for the automated surveillance and control of its users.”
There are also fears over the impact on smaller web firms and independent rights holders, as well as skepticism over whether the new directive could even be implemented effectively in its current form. Fears such as these led European Pirate Party MEP, Julia Reda, to describe the directive’s approval by parliament as a “dark day for internet freedom.”
To Meme or Not to Meme?
Confusion surrounds whether memes will be caught up in the new law as they frequently rely on copyrighted content. The European Commission has claimed that the law has strong safeguards so that “the use of existing works for purposes of quotation, criticism, review, caricature as well as parody are explicitly allowed.” However, others are not so sure.
“Copyright filters cannot understand context or human culture, which is essential if they’re not going to misidentify parodies and commentary as copyright infringement,” Open Rights Group executive director, Jim Killock, tells Infosecurity.
“The casualty of this scheme will be users’ free expression. It is a huge political failure that politicians have failed to recognize this.”
Confusion also reins over Article 11 and how it will be implemented in practice. Google has warned that it may be forced to pull Google News from Europe altogether.
“The casualty of this scheme will be users’ free expression"
Empowering the Powerful
Although the new law was lobbied against by the likes of YouTube, it could actually have a much more destabilizing impact on both European SMEs/startups and individual rights holders, according to experts. To comply, any site hosting user-generated content would theoretically have to put in place an upload filter unless it ticks all three of the following: it has been available for fewer than three years, it has an annual turnover less than €10m and has fewer than five million unique visitors per month.
The problem is, many smaller firms may not have the resources to develop upload filters, according to Diego Naranjo, senior policy adviser for European Digital Rights (EDRi).
“Tech giants are already using upload filters and hold licensing agreements with rights holders. They will only be obliged to re-negotiate them, something that they can do without being harmed. On the other hand, the rest of the platforms covered by Article 13/17 will need to implement very expensive upload filters which YouTube has spent millions to develop,” he says.
“In order to stay in business, unless they decide to move outside the EU, they will need to develop their own systems and go bankrupt, or perhaps get a license from YouTube to use their tool, thereby empowering tech giants once again.”
Even some rights holders may suffer, he added.
“Independent authors mostly benefit from the open internet since the vast majority of them do not get their income from selling CDs, streaming movies or similar but from concerts, cinema tickets and producers paying them to produce art,” argued Naranjo.
“By making fewer works available, they will find it more difficult to promote themselves and only those who are already engaged with record companies and film studios will get their step into the internet, since licenses will be mandatory. In essence, Article 13 empowers tech giants and music and film giants – who are all making more money than ever before.”
What Happens Next?
There are many questions left to answer over the new directive. For one, it will have to be transposed by member states into local law, which may lead to inconsistencies across the region.
There have also been repeated warnings about the difficulty of meeting the requirements of the law. YouTube boss Susan Wojcicki warned of “unintended consequences that will have a profound impact on the livelihoods of hundreds of thousands of people.
“The parliament’s approach is unrealistic in many cases because copyright owners often disagree over who owns what rights,” she added. “If the owners cannot agree, it is impossible to expect the open platforms that host this content to make the correct rights decisions.”
However, there may be light at the end of the tunnel for campaigners looking to challenge the legality of the directive. The Max Planck Institute for Innovation and Competition has written that “obliging certain platforms to apply technology that identifies and filters all the data of each of its users before the upload on the publicly available services is contrary to Article 15 of the InfoSoc Directive, as well as the European Charter of Fundamental Rights.”
As for the UK, the government has not published a position on the directive and will be free not to implement it if and when Brexit does go ahead. However, it could well seek “regulatory alignment” with the EU on this, according to Ron Moscona, partner at law firm Dorsey & Whitney.
“Even in the event of a no-deal Brexit, it is quite possible that the government may want to implement the directive, or at least elements of it – particularly the elements that serve the interest of media companies, i.e., the right holders,” he tells Infosecurity. “The UK has a strong media sector which the European legislature hopes will benefit from the directive.”
In the end, the European Parliament’s rubber stamping of this law has only intensified debate over its future. Expect months or even years of wranglings to continue. The one thing we can say with certainty is that the post-GDPR reputation of the EU as a supporter of individual rights and a check on the power of vested interests is diminishing by the day.