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.

Europe approves tough new digital copyright position

The European Parliament has voted to adopt a position on copyright rules that opponents inevitably fear will break the internet.

This is an incremental, but significant step towards Europe implementing laws that will impose new conditions on internet companies to compensate rights holders when they share their copyrighted material. The position was initially rejected back in July but in true EU style they decided to keep voting on it again until it went the right way.

“I am very glad that despite the very strong lobbying campaign by the internet giants, there is now a majority in the full house backing the need to protect the principle of fair pay for European creatives,” said Eurocrat Axel Voss.

“There has been much heated debate around this directive and I believe that Parliament has listened carefully to the concerns raised. Thus, we have addressed concerns raised about innovation by excluding small and micro platforms or aggregators from the scope.

“I am convinced that once the dust has settled, the internet will be as free as it is today, creators and journalists will be earning a fairer share of the revenues generated by their works, and we will be wondering what all the fuss was about.”

“Discussions between the co-legislators can now start on a legislative proposal which is a key element of the Digital Single Market strategy and one of the priorities for the European Commission,” said Eurocrats Andrus Ansip and Mariya Gabriel in a joint statement.

“Our aim for this reform is to bring tangible benefits for EU citizens, researchers, educators, writers, artists, press and cultural heritage institutions and to open up the potential for more creativity and content by clarifying the rules and making them fit for the digital world. At the same time, we aim to safeguard free speech and ensure that online platforms – including 7,000 European online platforms – can develop new and innovative offers and business models.

“The Commission stands ready to start working with the European Parliament and the Council of the EU, so that the directive can be approved as soon as possible, ideally by the end of 2018. We are fully committed to working with the co-legislators in order to achieve a balanced and positive outcome enabling a true modernisation of the copyright legislation that Europe needs.”

The usual suspects are appalled at this development with the saveyourinternet.eu site featuring the following statement: “The European Parliament blatantly disregarded your thousands of emails, calls and messages and adopted a horrible version of Article 13 on 12 September. But the battle against Article 13 isn’t over: we must now ask the EU governments to stand up for our rights!”

At its core this seems to be about sharing stuff on the internet and to what extent the owner of the stuff being shared should get some kind of royalty payment every time it’s done. On one hand the internet has wrecked industries like music and journalism by making it so difficult for them to charge people for consuming their products, but on the other the genie is out of the bottle and such sharing is endemic. Either way this debate seems likely to rage for some time yet.

Eurocrats lose vote to ‘break the internet’

The European Parliament has voted to reject a new Copyright Directive that many feared would critically damage the way we use the internet.

The Directive on Copyright in the Digital Single Market is positioned as an attempt to harmonise online copyright laws with offline ones and, of course, to standardise these across the continent. The key distinction seems to be around the republishing of copyrighted material, which happens all the time online via memes, mash-ups and all kinds of other user-generated interpretations of public material.

You can read the full details of the proposed directive, together with the reasons for drafting it, here. But for those of you that have better things to do with their time, the stated rationale is to encourage creativity by giving rights holders more protection. Those opposed to it, of which there are many, think it will undermine a core premise of the internet by imposing onerous copyright burdens on platforms and creators.

The part that upset these dissenters is Article 13:

Use of protected content by information society service providers storing and giving access to large amounts of works and other subject-matter uploaded by their users

  1. Information society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users shall, in cooperation with rightholders, take measures to ensure the functioning of agreements concluded with rightholders for the use of their works or other subject-matter or to prevent the availability on their services of works or other subject-matter identified by rightholders through the cooperation with the service providers. Those measures, such as the use of effective content recognition technologies, shall be appropriate and proportionate. The service providers shall provide rightholders with adequate information on the functioning and the deployment of the measures, as well as, when relevant, adequate reporting on the recognition and use of the works and other subject-matter.
  2. Member States shall ensure that the service providers referred to in paragraph 1 put in place complaints and redress mechanisms that are available to users in case of disputes over the application of the measures referred to in paragraph 1.
  3. Member States shall facilitate, where appropriate, the cooperation between the information society service providers and rightholders through stakeholder dialogues to define best practices, such as appropriate and proportionate content recognition technologies, taking into account, among others, the nature of the services, the availability of the technologies and their effectiveness in light of technological developments.

Thanks to the involvement of prominent figures like Actor Stephen Fry, Internet creator Tim Berners-Lee and Wikipedia founder Jimmy Wales, the opposition movement was large and prominent. A bunch of them sent a letter to the President of the European Parliament and saveyourinternet.eu urged people to hassle their own MEPs about it. A few national Wikipedia sites even shut themselves down in protest prior to the vote.

Well it seems to have worked because the vote took place today and 318 out of 627 MEPs voted against it, with 31 abstaining. This apparently means the whole thing is shelved until September, then it will be debated further and, in theory, amended before being voted on once more. You can be sure those amendments will be closely scrutinised by the above protest groups.

MEP Axel Voss was the person promoting the directive within the European Parliament. He wasn’t happy with the nature of the opposing campaigns and had the following to say after he lost. “I regret that a majority of MEPs did not support the position which I and the Legal Affairs Committee have been advocating. But this is part of the democratic process. We will now return to the matter in September for further consideration and attempt to address peoples’ concerns whilst bringing our copyright rules up to date with the modern digital environment.”

Jimmy Wales was pretty happy and symbolically retweeted a photo from a Hollywood movie to both celebrate the victory and illustrate the kind of meme-driven online activity that he and his fellow dissenters feared would be prohibited by the directive.

The #saveyourinternet campaign came over as somewhat hysterical and hyperbolic, but it made its point well and, for the time being at least, won. Europe has a bad habit of prioritizing harmonization and standardization over all other considerations and this was probably a much needed reality check. Voss and co will surely need to deliver substantial improvements to the directive before any of those 318 MEPs can justify switching sides in September.