EU Agrees New Copyright Rules – Sends Internet to the Dark Ages UPDATE

Despite what the politicians say, there’s no getting around the fact that last night’s agreement on a new EU Copyright Directive between the European Parliament and Council – particularly Article 11 (“link tax“) and Article 13 (“upload filters“) – is going to harm the sharing of online news and deliver mass automated censorship.

According to the politicians, this deal “will benefit all creative sectors, press, researchers, educators, cultural heritage institutions & citizens.” Likewise Andrus Ansip, European Commission VP for the Digital Single Market, said: “With the new rules internet users will have more possibilities to use and access copyrighted material with full legal certainty. Freedom of expression is guaranteed, and users will have the power to swiftly contest any unjustified removal of their content by platforms.”

At this point you’d be forgiven for thinking that we’re all about to enter some sort of new digital utopia, except the political spin overlooks the reality of how these measures will actually be implemented. Likewise it seemingly only pays lip service to the huge scale of opposition from ordinary people (protests and a petition by 4.7 million people), tech companies (both big and small), internet pioneers and even many Rights Holders.

Axel Voss (EPP, DE), Rapporteur, said:

“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.

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.

I am also glad that the text agreed today pays particular attention to sheltering start-ups. Tomorrow’s leading companies are the start-ups of today and diversity depends on a deep pool of innovative, dynamic, young companies.

This is a deal which protects people’s living, safeguards democracy by defending a diverse media landscape, entrenches freedom of expression, and encourages start-ups and technological development. It helps make the internet ready for the future, a space which benefits everyone, not only a powerful few.”

Axel isn’t being entirely honest. Broadly speaking the changes will still place new restrictions on the sharing of news content and threaten mass automated internet censorship for platforms like YouTube. Suffice to say that the way internet content and distribution works today is about to change and seemingly not for the better.

Article 13 – Upload Filters (Text)

The most controversial aspect of the new directive is article 13, which impacts commercial Online Content Sharing Service Providers whose main or one of the main purposes is to “store and give the public access to a large amount of copyright protected works or other protected subject-matter uploaded by its users which it organises and promotes for profit-making purposes” (e.g. popular video and picture sharing websites).

The seismic change here is that Article 13 makes intermediaries (instead of end-users) liable for uploads by their users, which it partly achieves by effectively expecting such sites to pre-emptively buy licences for anything that users may possibly upload (unworkable in many cases).

For example, imagine uploading a video to YouTube and, without realising it, you have a music track playing in the background. On the one hand many people would argue that this helps to promote such content and is thus a benefit, but on the other the website would now take on liability for your use of copyright material (most likely without permission from a rights holder because how many ordinary people would get that or even know where to begin?).

Mercifully there are some softer rules for small sites (blogs etc.) and exceptions exist for content that has been created for the purpose of quotation, criticism or review, as well as any use for the purpose of caricature, parody or pastiche. The trouble is that these exceptions would be difficult for manual moderators to judge, particularly on a vast website with millions of people uploading content around the clock (impossible to keep up).

Commercial companies thus won’t want to take the risk that they could suffer a cancerous inheritance of liability and so the inevitable outcome would require them to implement automated filters (aka – “content recognition technologies“), which scan for and then block copyrighted videos, photos, music, text or code in user submitted content.

However such filters tend to be very dumb and expensive tools, which can act aggressively in order to protect the operator against assuming any principal liability for something a user has shared. The end-result is typically significant “over-blocking” of often lawful content (censorship) and a vast amount of existing content may also face removal.

As a side note, if a court were ever to find that that the licensing or filtering efforts adopted by a site were too weak then they would be held directly liable for infringements, which again reinforces the need for such sites to adopt the strictest possible filtering systems. Hello censorship.

One positive change however has been the new “best efforts” requirement for rights holders to provide “relevant and necessary information,” which means they’ll have to actually work closely with sites like YouTube first if they want such filters to act against infringing content.

Article 11 – Link Tax (Text)

As any internet user should know, the ability to link to content on another website and to optionally provide a short summary (snippet) of what it’s about (context) is a founding part of how the internet works and the related distribution of information around the online world. Web links are the lifeblood of visitor growth for any website and it has always been considered good “internet etiquette” to link your sources.

Without this, new or existing websites would struggle to grow. Today the internet is filled to the brim with hundreds of thousands of news and information sites, many of which are quite specialist (e.g. ISPreview.co.uk for broadband and telecoms) and support a lot of jobs, but these have long been eroding the market for older media.

As a result old news media, such as printed newspapers or magazines, tend to dislike the internet because of how it harms their established model. Many of them have tried to adapt by adopting paywalls for their content but that has only been of mixed success (reduces visitor traffic) and thus they’ve lobbied hard for Article 11.

Article 11 aims to tackle the so called “value gap“, where rightholders claim they’re not being fairly remunerated for use of their works online on user generated sites when compared with similar licensed sites. This essentially creates a situation where you can still link to a news story but only alongside “individual words or very short extracts” (no images or long quotes etc.), otherwise you’d need to get paid permission from the source.

However the new law creates a number of tedious problems. Firstly, there’s no clarity on what “very short extracts” actually means and whether the words used in a website address (URL) would count towards this (i.e. this will probably be decided in the courts). Secondly, a lot of sites get noticed through news aggregation services like Google News or NewsNow, both of which may now have to strip their content displays down to a bare minimum (no pictures or quotes).

Google has even threatened to shut their news service completely. Spain introduced a similar law in 2014 and Google promptly shut their service, which resulted in significant revenue and traffic falls for news and information websites across the country. The problem would be magnified in the UK, where such news and information sites are much more common and could thus have a noticeable impact upon the economy.

Sadly only minor exceptions appear to exist here. The rights granted to the publishers of press publications does “not extend to acts of hyperlinking” (i.e. links themselves are safe). They should also “not extend to the mere facts reported in the press publications” (i.e. you can still write the facts in your own words, which is what most sites do anyway). An exception also exists “on quotation for purposes such as criticism or review.”

On top of that periodical publications published for scientific or academic purposes, such as scientific journals, are not covered by the protection granted to press publications under this Directive. Neither should this protection apply to “websites, such as blogs, that provide information as part of an activity which is not carried out under the initiative, editorial responsibility and control of service provider, such as a news publisher” (vague since the definition of a blog and news publisher in this context may be open to interpretation).

All of this is somewhat nonsensical since it only makes it harder for online websites to attract visitors, although in that sense it would clearly hurt new online media more than the old traditional printed media. However the UK Government’s Intellectual Property Office (IPO) did inform us last month that this right “will be waivable and rightholders will be able to choose whether or not to enforce it,” which suggests that news aggregation providers might be able to post more info. (quotes and pictures) if the source gives permission (e.g. without requiring payment) for them to do so.

Finally, the new article 11 rights will expire 2 years after the publication of the press publication (calculated from the first day of January of the year following the date of publication), which means that quoting from stories older than that should still be fine.

Innocenzo Genna, EuroISPA Chair of the Innovation and Growth Committee, stated:

“These rules will impose upload filters on platforms, impacting the competitiveness of European innovative SMEs, and leading to the over-blocking of legal content.

Article 11, if adopted, would change the Internet as we know it: an ancillary copyright would affect small platforms and innovative online publishers, while limiting the ability of European users to use hyperlinks and share snippets online.

Ultimately, this would have a significant negative impact on freedom of expression in Europe”.

A final vote is now expected to be taken by EU member states sometime during March or early April, but this process tends to reflect little more than a rubber stamping exercise and is unlikely to result in a major change.

On the other hand the weight of opposition suggests that there is still room for an upset, although so far the EU (both its left and right wing blocks) have been diabolically bad in equal measure at listening to opponents. At this point it’s hard to shake the feeling that far too many politicians continue to put the interests of their citizens and smaller players last, either that or they really don’t understand how the internet works (possibly both).

Meanwhile 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 or not) and in any case the current Government has so far supported most of the controversial measures.

Special credit to Julia Reda MEP for helping to shine a light on these measures when others wouldn’t.

UPDATE 15th Feb 2019

In a curious move the EC has written a blog of its own (here), which rather broadly appears to brand opponents of the changes as a “mob” supported by “paid-for campaigns.” Nice. No doubt that’s not in the least bit insulting to all those independent individuals and groups who have raised legitimate concerns about the new laws and their potential impact.

UPDATE 18th Feb 2019

In a comical twist the EC has now removed the above linked article because it is said to have been, “understood in a way that doesn’t reflect the Commission’s position.” Luckily the internet never forgets (here).