The EU copyright law that artists love—and internet pioneers say would destroy the web

Increasing protections for artists could infringe on privileges for everyone else.
Increasing protections for artists could infringe on privileges for everyone else.
Image: Reuters/Dado Ruvic
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European internet users are up in arms over proposed changes to copyright law that will either make the web more fair and lucrative for content creators or destroy the web as we know it—depending on whom you ask.

The movement to modernize and unify EU intellectual property law, initiated in 2016, is up for a vote in the European Parliament on Sept. 12.

Two controversial sections—Article 13 and Article 11—would force technology platforms to police digital content by automatically evaluating intellectual property before anything is uploaded and make news aggregators pay to license links to posts. This would ensure that musicians, artists, filmmakers, photographers and media outlets are paid for work that currently drives advertising revenue to technology companies like Google and Facebook for content that they don’t pay for, or say so supporters. Opponents argue that it will transform the web from a free and open platform to a tool to police information and limit ideas.

For and against Article 13

A summary of the EU legislation explains the effort. Basically, the internet has changed everything, becoming the main marketplace for the distribution and access to copyright-protected content. In this market, unlike traditional business models, people who produce and publish content and own the rights to intellectual property have a hard time enforcing their rights to the work and making money off of it. Lawmakers argue that this “could put at risk the development of European creativity and production of creative content” which is why stronger laws protecting creators are needed.

To this end, Article 13 would require content aggregators to install technology that polices uploads and prevents intellectual property violations before they occur. That technology is expensive and not necessarily sophisticated enough to handle the task, however.

The amended law failed to pass muster as initially drafted in July. If the new draft passes, member states will then have to ratify the legislation individually before it returns to the parliament for another vote late in the year or in early 2019.

Europe is leading the way in redefining the relationship between internet users and companies. In May, the General Data Protection Regulation (GDPR), which governs how companies handle personal information, took effect, and it follows the introduction of the concept of “the right to be forgotten,” which requires Google to delete certain information if petitioned by users.

The uproar over the new initiative has forced even its opponents to concede that the digital marketplace is a free-for-all that especially benefits tech giants and that the time has come to create rules to help content producers. EdiMA, the European trade association representing technology companies, including Google, Amazon, Apple, Facebook, and Twitter, says it welcomes the initiative “to reform the EU’s copyright framework.”

Currently, companies respond to complaints about copyright violations on a case-by-case basis, reviewing take-down notices after an offending post goes online. But if the new law passes, platforms will need to review all content in advance and decide what qualifies for posting.

Artists and musicians argue that this will ensure they get paid for their work and that free platforms that sell ads don’t make money off of the presence of unpaid, unlicensed content. At the Venice Film Festival this month, 165 film-makers and screenwriters appealed to EU lawmakers to pass the law. Similarly, in July, Paul McCartney was among more than 1,300 musicians that wrote a letter urging passage of the law to protect creative work from piracy and exploitation and restore fairness to Europe’s online marketplace.

If their cries are heard, the outcome could be dramatic for everyone, according to opponents of the proposal, who are also numerous and vocal. They include the web’s inventor, Tim Berners, and internet pioneer Vint Cerf.

“The impact of Article 13 would also fall heavily on ordinary users of Internet platforms— not only those who upload music or video (frequently in reliance upon copyright limitations and exceptions, that Article 13 ignores), but even those who contribute photos, text, or computer code to open collaboration platforms such as Wikipedia and GitHub,” they wrote in a June 12 letter (pdf) to Antonio Tajani, president of the European Parliament.

The internet pioneers say that, as creators, they sympathize with artists who are concerned about fair payment for creative production. “But Article 13 is not the right way to achieve this,” they argue. Requiring internet platforms to automatically filter all content will transform the web “from an open platform for sharing and innovation, into a tool for the automated surveillance and control of its users.”

The Max Planck Institute for Innovation and Competition in Germany takes criticism of the copyright directive even further, arguing in a report on the legislation (pdf) that it will lead to violations of fundamental European rights of free expression and free information. By automating content review, rather than allowing human judges to determine potential copyright violations after a complaint, content pertaining to political opinions or admissible parody could be blocked, for example.

“Furthermore, content recognition technology and procedures enable abuse. Because it does not necessarily have to be rightholders requesting the service providers to remove content; competitors, for example, could also do this,” the institute writes. “The victims would not only be the (legally acting) users, but also the consumers…[whose] freedom of information would be hindered without that being required by the legitimate interests of the rightholders.”

The law, if passed, could impact everyone on the web—not just in Europe. Anyone who makes or enjoys a meme or reads and posts a news article on social media, or enjoys British satire, say, could see their use transformed by the changes.

Tech companies argue that the law would be incredibly costly and that regulation could lead to dangerous results, turning them into censors. They are, for obvious reasons, lobbying against it. Practically speaking, the legislation would complicate matters. For example, YouTube would become liable for copyrighted material and would need to have individual agreements with rights holders, the musicians, filmmakers, production and record companies whose content makes the site so popular. It’s an unwieldy proposition.

Somewhat ironically, the technology companies point out that their tools aren’t good enough to do the job. “Even the best filtering software is prone to errors and often leads to censorship in situations that are perfectly allowed,” writes EdiMA, in a statement on the Sept. 12 vote. “At the moment the filters flag the content but the proposed law would turn this into a pre-upload filter.”

The news on Article 11

Another controversial aspect of the law, Article 11, would require news aggregators to license content, forcing platforms to pay for use of links to journalists’ posts. On Sept. 4, CEOs of 20 European news agencies, including France’s Agence France-Presse, Britain’s Press Association and Germany’s Deutsche Presse-Agentur, issued a statement calling on the European Parliament to right the “grotesque imbalance” caused by tech giants’ aggregation of content they don’t pay for but which attracts advertising money.

“The internet giants’ plundering of the news media’s content and of their advertising revenue poses a threat both to consumers and to democracy,” the CEOs argue. ”What we are really talking about is introducing a fair payment by those who have ripped off the news. For the sake of Europe’s free press and democratic values, EU lawmakers should press ahead with copyright reform.”

Google, for its part, has urged companies that are part of its European Digital News Initiative, which helps publishers create and test new business models, to oppose the legislation and write to representatives in the European Parliament asking them to vote against it. Evidence that regulation would hurt everyone, not just giants, the tech company argues, can be seen in Spain, where Google News shut down due to strict copyright laws that also ended up hurting much smaller local news aggregation platforms.

But European lawmakers, like Germany’s Axel Voss are unimpressed by the arguments that regulation will destroy the web. Voss says he heard the same arguments when attempts to regulate other industries, like banks and telecoms, were initiated. He tells the Guardian that the tech companies’ arguments are “fake news” and concludes, “We will not end the internet.”

While that may be true, the EU’s proposed approach is a stark contrast to the American position on intellectual property law, where rights holders are themselves responsible for policing and prosecuting illegal use of their works. More importantly, the legislation is worrisome because it could just strengthen the hold of a few online giants who will be able to afford to implement the changes and become the sole arbiters of which information users can access—reinforcing whatever problems already exist on the web.

In a post about what happens when copyright goes wrong, Ray Corrigan, senior lecturer in Science Technology Engineering & Mathematics at the Open University in the UK writes, ”In an entirely artificially created world, where code is law, architecture rules and can rule without subtlety and discriminate unfairly and invisibly for a very long time.”