Yesterday, the European Parliament approved amendments to the controversial Copyright Directive, a piece of legislation intended to update copyright for the internet age. Few pieces of legislation have polarized Europe this much in recent years. Critics said the vote heralded the death of the internet, while supporters congratulated themselves for saving the livelihoods of starving artists and giving US tech giants a poke in the eye.
But the proposed change hasn’t finished happening yet, and it’s still too early to say exactly what it will mean. The text will be tweaked in upcoming negotiations, and the directive has a slim chance of being rejected altogether at another vote from the whole European Parliament 2019. Whatever legislationispassed will then have to be implemented by individual nations, all while facing likely legal challenges.
In other words, things are going to get more confusing before they get any clearer. But before that happens, let’s work out where we stand for now.
What is the directive trying to achieve?
Much of the outrage has been over two parts of the directive: Articles 11 and 13. But their intent, when described by supporters anyway, is pretty benign. Article 11 simply gives publishers the right to ask for paid licenses when their news stories are shared by online platforms, while Article 13 says that online platforms are liable for content uploaded by users that infringes copyright.
Both measures attempt to redress an imbalance at the core of the contemporary web: big platforms like Facebook and Google make huge amounts of money providing access to material made by other people, while thosemakingthe content (like music, movies, books, journalism, and more) get an ever-shrinking slice of the pie.
Not everyone involved in the creative industry is complaining about this, obviously. It’s benefited a lot of people, and a lot of internet users. But it’s obvious that the modern, ad-supported web has left companies in Silicon Valley extremely rich while torpedoing revenue in other industries. The Copyright Directive is supposed to level the playing field.
Article 11, the link tax
Article 11 is the so-called “link tax,” which gives publishers a right to ask for paid licenses when online platforms share their stories. The obvious target is aggregators like Google News, but opponents worry the law could have broader applications.
Some extreme interpretations have suggested that this might even stop ordinary web users sharing new stories, but the text of Article 11 does exempt individuals. It says that the new rights given to publishers “shall not prevent legitimate private and non-commercial use of press publications by individual users.” (You can read the amended version of Article 11 in this document on page 54.)
However, it’s not clear what counts as a commercial platform. What about blogs or RSS feeds that aggregate headlines in much the same way Google News does? What about a Facebook page operated by an individual who also has a huge audience?
Article 13, the upload filter
The far bigger headache is Article 13, dubbed the “upload filter” by critics. It says that platforms “storing and giving access to large amounts of works and other subject-matter uploaded by their users” are liable for copyright infringement committed by users. (Meaning they can be sued by rights holders.) So, platforms and copyright holders must “cooperate in good faith” to stop this infringement from happening in the first place.
The difficulty, again, is working out what this provision actually means and how it might be enforced. (You can read the amended version of Article 13 in this document on page 56.)
Critics are clear: it means upload filters, forcing sites like YouTube and Facebook to scan every piece of content users share, and checking it against a database of copyrighted material. Such a mechanism would be ripe for abuse by copyright trolls and would make millions of mistakes. The technology simply doesn’t exist to scan the internet’s content in this way.
This specter of an upload filter has been framed by critics as the EU trying to “kill your memes.” Proponents of the bill say this isn’t the case, and that previous laws make parodies and memes exempt from copyright claims. Reda claims this doesn’t help.
“These laws are written to a large extent by politicians who don’t use the internet very actively,” says Reda. “If you think the internet is made up of just YouTube and Facebook, you will come up with this sort of sweeping legislation.”
Any other bad news?
Yes! While Articles 11 and 13 have gotten the most attention so far, the new directive does also tighten up copyright in lots of smaller ways. There are concerns over how the directive treats text and data mining programs (or TDM), for example, potentially exposing automated scanners to copyright claims. And one clause, only added recently, might give sports leagues exclusive rights overanyimages or video of a game, a significant escalation in the ongoing fight over sports GIFs that might extend to fan-taken photos of a stadium before the game.
So what happens next?
This version of the Copyright Directive now goes into trilogues — a type of three-way dialogue (hence the name) between select members of Parliament, the European Commission, and representatives of member states. This process generally happens behind closed doors, meaning there’ll be little public oversight or news coming out of the process. It’s possible that some of the more troubling parts of the directive will be removed, which is what Axel Voss, the MEP who’s been leading the charge on the legislation, has promised. But it’s also possible the directive will stay much the same.
After trilogues, the directive will face a final vote from the European Parliament some time in spring 2019. That could be as early as January, or as late as March.
But that’s yet to come. The bad news is that the fight over Europe’s internet is far from over. That’s the good news, too.