EU backs Berners-Lee over Paul McCartney as copyright directive is voted down

SUMMARY:

The European Parliament has sent its controversial Copyright Directive back to the drawing board. A battle won, but not the war.

Paul McCartney Twitter
Sorry Macca…

EU backs down! Internet saved!! Sanity prevails!!! – for now at least.

The European Parliament has reached a welcome decision to reject controversial reforms to copyright rules that would have limited user access to information as well as making censorship a lot easier for those inclined in that direction.

But it’s far from game over. The voting in Parliament was 318 against, 278 in favor and 31 abstentions. And the reality is that there is a need to update existing copyright law, which dates back to 2001, in order to factor in the rise of the Internet as a content sharing platform.

So the direcive on the table has merely been sent back for further discussion and to allow for amendments to be made to the sections that have caused problems to date. This is a temporary decision.

Problems

There were two articles in the proposed directive that were particularly troublesome. The first, Article 11, was pitched as protecting profit margins for traditional media publishers by making it necessary for content sharing platforms, such as Google and Facebook, to pay for a licence before being allow to show any part of copyrighted content on their own sites.

While that might not seem entirely unreasonable to some, a bigger problem is the vagueness of terminology and lack of specificity in the language of the directive itself. Such is the loosely-defined nature of what’s covered by Article 11 that it could refer to anything from wholesale reproduction of an entire news article to merely including a link back to the article on its website of origin.

Meanwhile Article 13 would have made content sharing platforms responsible for ensuring that no material uploaded to or posted on their sites was in breach of copyright. Under existing legislation, copyright infringement is deemed to be the fault of the user uploading the content, while platform providers only have the responsibility of removing it after being informed of its presence on their sites.

The proposed change would mean that any site or platform that allowed its users to post any form of media directly, would be obliged to have a mechanism in place that allowed the uploaded material to be filtered against a database of copyrighted work and blocked where necessary.

This would involve investing in tech to filter as well as paying a licence to access the database, which itself would have to be capable of being edited and added to over time.

It would also have significant freedom of expression implications. Imagine a campaign against, for example, anti-semitism where activists posted sections of a publication that supported bigotry. If that publication was deemed to be copyrighted, then its offensive contents could not be shared to illustrate the nature and intent of the authors.

The other problem is that what’s being pitched here is a directive from the European Commission. It’s not a blanket law that would cover all 28 European Union states, but rather a set of rules that each country would be left to implement into national law in whatever form it saw fit. In other words, each country would have to decide what was acceptable and what was not in terms of copyright infringement – and as we’ve seen with data protection among other topics, the notion that there is such a thing as a pan-European single worldview is ludicrous.

Lobby, lobby, lobby

So the fight will go on. September is the next time the directive will come back up for air. In the meantime, the various factions will consolidate and lobby like hell. Google is rumoured to have have spent around $33 million lobbying in Brussels on this issue alone.

There are high profile figures on both sides of the divide. Seventy tech leaders, including the inventor of the World Wide Web Sir Tim Berners-Lee, had written to the President of the European Parliament last month to voice their concerns over the directive and to urge that it be rejected. They cautioned the EU that it would be shooting its own digital economy in the foot if the directive was passed:

Far from only affecting large American Internet platforms (who can well afford the costs of compliance), the burden of Article 13 will fall most heavily on their competitors, including European startups and SMEs. The cost of putting in place the necessary automatic filtering technologies will be expensive and burdensome, and yet those technologies have still not developed to a point where their reliability can be guaranteed.

The tech industry as a whole took yesterday’s vote as a victory. For the U.S. Computer and Communications Industry Association (CCIA), which counts Google and Facebook among its members, Senior Policy Manager Maud Sacquet said:

Today’s vote shows that MEPs heard the grave concerns of the online sector, civil society and academics. The Parliament has now an opportunity to adopt balanced and future-proof copyright rules, an important step to achieve a real, thriving Digital Single Market.

Meanwhile the UK tech trade association TechUK took a very British view, welcoming a delay on a final decision. CEO Antony Walker commented:

We are very pleased that MEPs have allowed more time to develop better solutions that achieve the right balance between the rights of copyright holders and ordinary people. techUK congratulates MEPs on this decision which will hopefully ensure a fair and balanced approach going forward which maintains a free and open internet.

On the other hand, musicians and other artists, including Paul McCartney, Annie Lennox and Placido Domingo, were among 1,300 creative industry figures who wrote to the Parliament in support of the directive.

And for those in Parliament in favor of the directive, Axel Voss MEP argues:

Nobody in the European parliament wants to establish censorship, filters, a link tax or the restriction of the freedom of speech. Those who imply differently are consciously spreading fake news and are acting solely in the interest of big online platforms.

My take

As with data protection and privacy rights before it, this is a tricky area. There’s undeniably a need to update copyright legislation to reflect the emergence of the Internet and the Web as publishing platforms. I have every sympathy with authors, musicians et al who object to their work being shared around social platforms with no regard for their rights as creators. Even Paul McCartney needs to earn a living!

On the other hand, there’s a very large element of sledgehammer to crack a nut here, particularly around the filtering of content by platform providers. There’s always a lot of focus around the power of content sharing on social media for negative effects – such as terrorism, incitement and co-ordination of riots etc – but equally the openness of such platforms is undoubtedly also a force for good – such as the post-shooting wave of anti-NRA support in the U.S.

Not being a shareholder, I’m less concerned with Facebook or Google facing the extra costs that such filtering would incur- even assuming, which we don’t, that the tech is there to make this work infallibly. I am very, very concerned that in an age of so-called populism and increasingly authoritarian world leaders, that anything that can be used by bigots and despots to restrict freedom of expression can be allowed to creep in through the legislative backdoor.

Back to the drawing board!

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