EU set to proceed with controversial new online copyright rules

Inevitably the EU Copyright Directive, complete with its widely despised Articles 11 and 13, is continuing its glacial progress along the European rubber-stamping conveyor belt.

Last month we reported that the directive appeared to have hit a road bump, but this turned out to be a fleeting inconvenience, resolved by the most token of concessions. Yesterday both the European Commission and European Parliament announced a breakthrough in the fraught negotiations, from which a miraculous consensus was reached.

“To finally have modern copyright rules for the whole of EU is a major achievement that was long overdue,” said VP for the Digital Single Market Andrus Ansip. “The negotiations were difficult, but what counts in the end is that we have a fair and balanced result that is fit for a digital Europe: the freedoms and rights enjoyed by internet users today will be enhanced, our creators will be better remunerated for their work, and the internet economy will have clearer rules for operating and thriving.”

“This deal is an important step towards correcting a situation which has allowed a few companies to earn huge sums of money without properly remunerating the thousands of creatives and journalists whose work they depend on,” said MEP Axel Voss, who seems to speak for the European Parliament on this stuff.

“At the same time, this deal contains numerous provisions which will guarantee that the internet remains a space for free expression. These provisions were not in themselves necessary because the directive will not be creating any new rights for rights holders. Yet we listened to the concerns raised and chose to doubly guarantee the freedom of expression. The ‘meme’, the ‘gif’, the ‘snippet’ are now more protected than ever before.”

As you can see both spokespeople are doing a heavy sell on the directive because they know it’s unpopular. Not that it really matters because In place of actual democratic accountability, the EU has a self-reinforcing system of largely opaque bodies. This is apparently done to create the impression of rigorous due process but it’s very rare for the real power in Brussels – the European Commission – to receive any significant internal resistance once it has decided on a course of action.

The most unpopular part of the Directive is Article 13, which requires sites to either seek licenses for, or pre-emptively block the upload of, any material that may be copyright protected, or face the consequences of any breach themselves. Close second in terms of public derision is Article 11, which will require a license to reproduce all but the shortest snippets of written content and may apply to things like link previews.

Appropriately enough none of the announcements linked directly to the test of the agreement, but once more we indebted to MEP Julia Reda, who quickly blogged on the matter. “The history of this law is a shameful one,” she wrote. “From the very beginning, the purpose of Articles 11 and 13 was never to solve clearly-defined issues in copyright law with well-assessed measures, but to serve powerful special interests, with hardly any concern for the collateral damage caused.”

The special interests she referred to are big publishers, who she reckons have lobbied the EU to protect their traditional revenue streams. This theory would appear to be supported by the fact that smaller publishers and rights holders seem far less keen on the new rules. Reda, who you can see alongside a small number of other dissenting MEPs in the video below, thinks the Directive can still be stopped if the European Parliament can be persuaded to oppose it but this seems like a forlorn hope.

Zoey Forbes, Technology, Media and Entertainment Associate at law firm Harbottle & Lewis, offers another perspective. “On the surface, the agreed text was an early Valentine’s Day present for creatives and the wider content industry,” she said. “Copyright holders will receive additional revenues from the use of their works online as well as greater protection from online copyright infringement.

“However, as with all things, the devil is in the detail and some stakeholders feel the safeguards offered to the tech industry have not only watered down the EU’s original objectives but will actually leave copyright holders worse off. Conversely, the tech industry and those advocating for freedom of expression are not appeased by these safeguards and continue to oppose the directive on an ideological level.”

The EU is positioning all this as protecting the European little guy from voracious Silicon Valley giants who profit from traffic driven by third party content. There is some merit to that position, but it doesn’t seem to have consulted many little guys, nor thought more deeply about the mechanics of the internet, which rely heavily on the viral sharing of stuff. It’s not at all clear that the stated beneficiaries of this set of rules will, in fact, benefit, but the EU supertanker isn’t about to change course over such minor concerns.

 

Europe set to impose upload filters on nearly all websites

After a brief interruption it’s business as usual for the EU Copyright Directive, with Article 13 set to go ahead and oblige websites to adopt burdensome content filters.

Last month we reported that Article 13 of the directive, which seeks to block the upload of any content that could possibly infringe copyright, was being held up by disagreement among some members of one of the many layers of eurocracy required to rubber-stamp new trans-continental laws.

Well as is so often the case in Brussels, a token compromise was reached that allowed everyone to do what they’re told while offering what minimal face-saving they needed to salve their capitulation. Once more the best information and analysis on this latest development comes from Pirate Party MEP Julia Reda.

Reda reports that everyone was pretty much in favour of insisting on the use of algorithmic upload filters intended to prevent copyrighted material even being uploaded in the first place without a license fee first being paid. The only sticking point concerned exemptions for smaller websites, to stop innovation being suffocated by the cost of all this fresh red tape.

The solution that apparently placated even the most fervent SMB champion was to spare websites this extra hassle so long as they’ve been going for less than three years, have an annual turnover of less than €10 million and have fewer than five million monthly unique visitors. To be clear if any single one of these apply then it’s upload filter time, so since nearly all websites are older than three that means pretty much all of them. Nice exemption.

As Reda concludes, this is EU corporatism being imposed on the internet by favouring the largest websites, for whom the additional bureaucratic burden is much less significant, and thus discouraging innovation. It will probably result in blanket blocks on European users by non-European sites that don’t feel like installing upload filters.

She calls on people to pressure their local candidates in the forthcoming European elections to oppose this move but we fear she’s being naïve. The European Union considers the democratic will of its constituents to be at best irrelevant and at worst antagonistic to its corporate interests and prospective members of European parliament know it.

Europe struggles to get support for Article 13 digital copyright laws

The most controversial part of the EU Copyright Directive, known as Article 13, is struggling to pass through Europe’s Byzantine bureaucracy.

German MEP Julia Reda recently reported that the process of passing Article 13, which seeks to block the uploaded of content that may infringe copyright, as well as Article 11, which seeks to make people pay when they even share a link, had stalled.

This roadblock was thrown up by the European Council, in which several countries rejected a compromise recently proposed to the wording of all this stuff. Last September the directive was approved by the European Parliament, having previously been rejected. It also looks like pretty much everyone else hates it too, including the content producers it claims to be trying to protect.

“This surprising turn of events does not mean the end of Link Tax or censorship machines, but it does make an adoption of the copyright directive before the European elections in May less likely,” wrote Reda. “The Romanian Council presidency will have the chance to come up with a new text to try to find a qualified majority, but with opposition mounting on both sides of the debate, this is going to be a difficult task indeed.

“The outcome of today’s Council vote also shows that public attention to the copyright reform is having an effect. Keeping up the pressure in the coming weeks will be more important than ever to make sure that the most dangerous elements of the new copyright proposal will be rejected.”

Reda is quite rightly anticipating the standard MO of the EU, which is to keep putting decisions to the vote until it gets the result it wanted from the beginning. Usually there is presumably some degree of horse-trading behind the scenes followed by just enough of a cosmetic tweak to the issue to allow those who change their mind to save face. Let’s see if it’s any different this time.