The European Parliament has today voted to approve a mildly softened version of Article 11 (aka – “link tax“) and Article 13 (aka – “upload filters“) in their proposed new Copyright Directive, which among other things places restrictions on the sharing of news content and threatens mass automated internet censorship.
Under the original plan Article 13 was set to make intermediaries (instead of just end-users) liable for uploads by their users. The change would have essentially required businesses to implement automated filters (aka – “content recognition technologies“) that scan for and then block copyrighted videos, photos, music, text or code in user submitted content.
The problem is that such filters tend to be dumb tools, which can act aggressively in order to protect the operator against assuming any legal liability for something a user has shared (a natural consequence of the proposed law). The end-result is typically significant “over-blocking” of often lawful content (censorship).
By requiring Internet platforms to perform automatic filtering all of the content that their users upload, 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.
Europe has been served well by the balanced liability model established under the Ecommerce Directive, under which those who upload content to the Internet bear the principal responsibility for its legality, while platforms are responsible to take action to remove such content once its illegality has been brought to their attention.
By inverting this liability model and essentially making platforms directly responsible for ensuring the legality of content in the first instance, the business models and investments of platforms large and small will be impacted. The damage that this may do to the free and open Internet as we know it is hard to predict, but in our opinions could be substantial.
On top of that we had the problematic Article 11, which initially threatened a situation where you couldn’t link to a news story or use a snippet of news content without first getting paid permission from the source. This would have made it much more difficult to share and discuss news stories in general by discouraging distribution (i.e. less traffic for news sites, not more).
Bigger sites, such as Google and Facebook, would of course be able to use their power to negotiate favourable rates but smaller organisations have no such clout. A tax on linking may also have enabled some sites or organisations to effectively silence their critics via the backdoor, resulting in yet more censorship.
Thankfully a ray of hope crashed through the clouds this summer when the European Parliament initially voted to reject the proposals and sent them back for revision. The bad news is that they’ve today approved an amended version of the text, which isn’t hugely different from the original.
The EP appears to have endorsed a series of softer amendments from the EPP group (summary of the amendments via MEP Julia Reda), which have made some important but not overly significant changes to the text; depending upon your perspective.
Key Amendments (Article 13 and 11)
– Article 13 will now only apply to platforms where the “main purpose …is to store and give access to the public or to stream significant amounts of copyright protected content uploaded / made available by its users and that optimise content and promotes for profit making purposes.”
– When defining best practices for Article 13, special account must now be “taken of fundamental rights, the use of exceptions and limitations. Special focus should also be given to ensuring that the burden on SMEs remain appropriate and that automated blocking of content is avoided” (effectively an exception for micro/small businesses).
– Article 11 “shall not extend to mere hyperlinks, which are accompanied by individual words” (so it seems links are safe, but quoted snippets of text must be very short) and “the protection shall also not extend to factual information which is reported in journalistic articles from a press publication and will therefore not prevent anyone from reporting such factual information.”
– Article 11 “shall not prevent legitimate private and non-commercial use of press publications by individual users.”
– Article 11 rights “shall expire 5 years after the publication of the press publication. This term shall be calculated from the first day of January of the year following the date of publication. The right referred to in paragraph 1 shall not apply with retroactive effect.”
– Individual member states will now have to decide how Article 11 is implemented, which could create some confusion across borders.
The amendments are welcome but many experts and civil rights groups continue to warn that they still go too far.
Jim Killock, Executive Director of the Open Rights Group, said:
“Article 13 creates a Robo-copyright regime that would zap any image, text, meme or video that appears to include copyright material whether it is legally used or not. This is disappointing and will open the door to more demands for Robocop censorship.
The Directive is not yet law and could improve during trilogue negotiations. We will keep opposing these measures which will lead to legal material being removed in this way.”
Siada El Ramly, Director General of EDiMA, said:
“The neighbouring right will restrict the sharing of news online and the upload filter will restrict user uploads. These are bad outcomes for European citizens.”
We hope that the concerns of EU citizens, and all of the academics, small publishers, startups, and the UN, that have been expressed will still be taken into account during the next stage of negotiations. We look forward to working with everyone involved in the aim of a better outcome for all.”
A final round of negotiation with the EU Council and European Commission is now due to take place before member states make a decision early next year. But this is historically more of a rubber stamping process and few, if any, significant changes are expected.
However, anybody who mistakenly thinks that Brexit will stop this from impacting the UK should be cautious. Regardless of what the EU approves, the UK might still have to implement it (we won’t know for sure until a final deal is agreed) and in any case the current Government supports many of the controversial new measures.