I have been watching the EU copyright drama as of late, and finally, I am nervous enough to write about it. If you want the 3-sentence summary of the background, here it is:
There is a proposed new EU Copyright Directive, which will attempt to update the previous Directive from 2001. It is supposed to be a new copyright law for the age of Facebook, Amazon, and Google. And it is for all 28 member-states of the EU. The final decision on the new Directive was delayed this July when the EU’s European Parliament voted to block the legal affair committee’s proposals and reopen the Directive text for amendments and a new vote.
Well, that time has come, and the European Parliament vote is on Wednesday. Pay attention!
There are three areas in the Directive which has everyone up in arms – Articles 3, 11, and 13 – and they affect the Internet’s core principles, including the free flow of information, free speech, free press, text & data mining, and more. Some of these proposals are not consistent with U.S. law at all, so many commentators from the U.S. are deeply concerned with the directions this new Directive could take.
Article 13 – The Censorship Machines
The new proposed Article 13 of the EU Copyright Directive requires platforms to take measures such as “effective content recognition technologies” to ensure the content published online by its users does not infringe copyright. What does this mean? Any internet companies that have 3rd party users post content will have to actively police their users for copyright infringement. Now, we the U.S. is no stranger to this type of system: YouTube currently woks with music publisher allowing a copyright algorithm to auto-identify copyrighted material and can send automated takedowns. But we know this system (combined with the Notice and Take Down system) doesn’t always work correctly. (And most recently Facebook, using the music algorithm, banned Bach!). It doesn’t really work, especially for creative, fair-use oriented, parodies and satire.
Additionally, only large-scale companies can afford this level of new monitoring. Small companies will be effectively pushed out (or sued out of existence) – leaving only the “big” companies behind (Google, YouTube, Amazon, etc.).
And it is arguable that this Article will turn these companies into mere “upload-censoring-filter” platforms rather than the creative, sharing, and innovative platforms that they were designed to be. A coalition of 70 internet pioneers (including Wikipedia founder, Jimmy Wales, Sir Tim Berners-Lee, and security expert Bruce Schneier, and more) argued these points recently (and more eloquently) in an open letter to the EU. They argue that platforms would be forced to install permanent upload filters (or as its being called “censorship machines”) so that the companies could foil potential copyright infringement.
And, much like the problem with fair use being identified falsely on YouTube here in the States (see the #WTFU: Where’s The Fair Use? debacle), this Directive does not even mention the notion of fair use or fair dealing, so perfectly legal content could be auto-removed before upload is final by many of these filters. That certainly interrupts freedom of speech, expression, and the free flow of information, yes?
Will it filter out online encyclopedia entries that use media? Will it prevent us from sharing funny memes or parody sites? It’s hard to say exactly what this Article will achieve, but it’s a possibility.
Ultimately, it comes down to how the European Parliament (or later, the courts?) reads the phrase “appropriate and proportionate” as applied to the measures to prevent copyright infringement. But if there is confusion over the definition of the extent of these copyright filtering systems to provide a safe harbor environment for new, innovative platforms to thrive, and not worry about potentially infringing 3rd party actions, isn’t that a reason to vote “NO” and get more clarification in the Directive at a later time?
Article 11 – The Link Tax
This one is the most worrisome, because we have seen some of the effects of a “link tax” play out already in Spain. Google just closed its News aggregator in Spain. The link tax experiment didn’t work.
And, in fact, Germany tried the same thing in 2013 – but they eventually scaled down the language of their link tax law and news link aggregators were not forced to pay for news snippets. As a result, many German publishers still furnish their news snippets to Google for free.
Despite all that, the new Article 11 of the Directive still tries to create a market for links to news. Online services would be banned from allowing links to news services on their platforms unless they get a fee-based license to make links to the news. As you can imagine, lobbyist for the news publishers’ associations have pushed hard for this revenue-driven Article. They see this as a new active point of leverage to use when negotiating future licenses with online services – the same online services that use snippets of headlines and enable access to their content.
But I have read this as the opposite outcome: wouldn’t this perhaps inhibit access to news publications? Much like the copyright filtering in Article 13 that could only be sustained by large scale platforms, If Article 11 taxes the new links only bigger sites, such as Google and Facebook, would be able to even think of paying. Again, smaller organizations and platforms would be well disadvantaged.
And again, we see a alack of clarity in the definitions. The Article does not define “news service” or “link.” Each of the EU’s 28-member states would have to invent their own regional definitions. And, as you can imagine, complying with 28 different rules might be too complex for the smaller platforms, or really any platform. It would be nearly impossible to have a system that complies with multiple rules and definition across one system, based on the up-loader’s IP address.
And we have seen this fail in Spain and Germany already. Why do they think a 28-member market would have a different outcome?
Article 3 – Please, Sir, Can I Text and Data Mine?
With the potential death of memes, and a link tax on the line, the Article 3 Text and Data Mining (TDM) exception hasn’t got nearly as much panicked publicity, but it should. TDM, in many fields, is the future of scholarship, research, and invention.
TDM is defined by the UK Intellectual Property Office as “The use of automated analytical techniques to analyze text and data for patterns, trends and other useful information.” TDM is here in the new EU Copyright Directive because TDM usually requires copying works for analysis. The use of ideas, principles, facts and correlations that are contained in literary works or other types of texts or datasets, is then used for a new level of analysis. TDM techniques do not exactly use the copyrighted materials for their original purpose, they actually access the information stored inside them through the TDM extraction process.
Much like the previous Articles in the Directive, the wording here is minimizing. It looks like a simple Article that does a few good things in allowing TDM – but the fine print reveals a less flexible standard.
“The Right to Read is the Right to Mine” is a phrase that I think should have universal support. This was the rallying cry behind the UK’s TDM law that was passed a few years ago. And it would be sound to write Article 3 based on the successes and lessons from the UK TDM law. And the U.S. generally considers TDM to be a fair use.
Again, here It boils down to words and definitions. The TDM Article would benefit research organizations acting for research purposes. It sounds good, but it’s a bit limited. Why not allow any type of user, including corporations and firms with employees ranging from journalists to scientists – as long as there is a public good or benefit? If the Directive’s goal is to make the EU’s single market “fit for the digital age,” the TDM Article should make the TDM exception available for all research and innovation across the entire EU economy and the world.
Lastly, Article 3 is missing a section that addresses one of the major barriers to TDM – the prevention of TDM because of “technical reasons,” which, in turn, leads to publishers to forcing licensing fees and restrictions. Conditional access to TDM has detrimental effects on research, and, especially in newer areas of TDM research, there may not be money beyond the normal subscription to absorb another layer of fees associated with the subscription uses. This is exactly what the UK TDM law dealt with –
Keep an Eye Out This Week
If the Directive with these Articles pass, there is a big chance that the Directive will put even more power into the hands of the Big Tech – and only Big Tech – and eliminate the smaller, innovative competition through filters, licensing, and fees. Here in the U.S. – often the home of Big Tech (Google, Facebook, Twitter, Apple, Amazon) – we should be monitoring this vote closely – and think how it will affect the global internet and its use.