Censorship or fair play? European Parliament takes step closer to controversial copyright regime, but will Big Tech fight back?

Profile picture for user slauchlan By Stuart Lauchlan March 26, 2019
Summary:
The European Parliament signs off on the Copyright Directive, opposed by Big Tech, but backed by musicians and artists. What next?

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The end of the Internet as we know it? Or a long overdue introduction of a more level playing field for creative types? The European Parliament this week approved the controversial Copyright Directive, earning the wrath of the tech industry, but the approval of the music and arts sector.

The new law was passed with 348 votes in favour and 274 votes against and 24 abstentions. The Directive must now be formally approved by European Union (EU) leaders at a meeting of the European Council next month, after which, if approved, EU member states will have until 2021 to enact the provisions in national laws.

There are two sections in the new directive that have proved particularly divisive - Articles 15 and 17 - formerly 11 and 13. The first requires search engines and new aggregation platforms to pay to use links from news websites and only to allow search results to display “individual words and very short extracts” ; the second makes larger tech firms directly responsible for material posted on their platforms without a copyright licence (Cloud storage services providers are exempt, as - somehow - are memes, although there’s no explanation as to how policing that works in practice).

The Parliament’s Copyright Rapporteur, German MEP Axel Voss, said of the outcome:

This Directive 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, the adopted text contains numerous provisions that 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 protected more than ever before.

This is a directive 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.

But as with basically every EU initiative, the Copyright Directive has divided the bloc. The Danish and the Dutch have been critical of Article 17, for example, while the French Government has been gung-ho for what it sees as another tool to rein in the tech giants.

Critics of the Directive have warned that smaller firms without the resources to implement necessary filters will suffer under the new regime. In a statement, the European Parliament rejects this notion, stating:

Platforms set up less than 3 years ago, with an annual turnover lower than EUR 10 million, and average monthly unique visitors lower than 5 million, will be subject to much lighter obligations than the large, established ones.

It also denies that the Directive will encourage censorship:

Freedom on the internet, as in the real world, will continue to exist as long as the exercise of this freedom does not restrict the rights of others, or is illegal. This means that a user will be able to continue uploading content to internet platforms and that these platforms will be able to continue hosting such uploads, as long as the platforms respect the creators’ right to fair remuneration… The Directive will not censor. By increasing legal liability, it will increase pressure on internet platforms to conclude fair remuneration deals with the creators of work through which the platforms make money. This is not censorship.

As for the idea that platforms will end up defaulting to ‘blanket’ filters that might block legitimate content, the Parliament nakedly passes the buck:

If large platforms do not come up with any innovative solutions, they may end up opting for filters. Such filters are indeed already used by the big companies! The criticism that these sometimes filter out legitimate content may at times be valid. But it should be directed towards the platforms designing and implementing them, not to the legislator who is setting out a goal to be achieved.

Opposition

For the tech industry, the vote was a set back. Danny OBrien, International Director at non-profit digital rights group, the Electronic Frontier Foundation, called it a “stunning rejection of the will of five million online petitioners” and said the Parliament had abandoned common-sense. He predicts chaos ahead:

Unlike EU Regulations like the GDPR, which become law on passage by the central EU institutions, EU Directives have to be transposed: written into each member country’s national law. Countries have until 2021 to transpose the Copyright Directive, but EU rarely keeps its members to that deadline, so it could take even longer.

Unfortunately, it is likely that the first implementation of the Directive will come from the countries who have most enthusiastically supported its passage. France’s current batch of national politicians have consistently advocated for the worst parts of the Directive, and the Macron administration may seek to grab an early win for the country’s media establishment.

Countries whose polity were more divided will no doubt take longer. In Poland, politicians were besieged by angry voters wanting them to vote down the Directive, while simultaneously facing brazen denunciations from national and local newspaper owners warning that they would “not forget” any politician who voted against Article 11. The passing of the Directive will still leave that division between the Polish people and the media establishment, with politicians struggling to find a domestic solution that won’t damage their prospects with either group.

It’ll all end up in court, he added, noting:

It’s unclear who is supposed to impose consistency in the EU between, say, a harsh French regime and a potentially softer German solution, or interpret the Directive’s notoriously incoherent text. That means it will fall by default to Europe’s judicial system, and the long, slow road to a final decision by the EU’s superior court, the European Court of Justice (ECJ).

We can expect media and rights-holders to lobby for the most draconian possible national laws, then promptly march to the courts to extract fines whenever anyone online wanders over its fuzzy lines….rights-holders are by no means united on what Big Tech should be doing. Whatever Internet companies and organizations do to comply with twenty-seven or more national laws – from dropping links to European news sites entirely, to upping their already over-sensitive filtering systems, or seeking to strike deals with key media conglomerates – will be challenged by one rights-holder faction or another.

And it’s by no means certain that Big Tech will put up a fight, he warned:

Europe’s Internet users can’t depend on the tech companies to fight this. The battle will have to continue, as it has done in these last few weeks, with millions of everyday users uniting online and on the streets to demand their right to be free of censorship, and free to communicate without algorithmic censors or arbitrary licensing requirements…outside Europe, friends of the Internet will have to brace themselves to push back against copyright maximalists attempting to export this terrible Directive to the rest of the world.

For UK tech industry association, techUK, Giles Derrington, Associate Director of Policy, is equally downbeat:

The European Parliament has failed to strike the right balance between protecting copyright and ensuring freedom of expression. We are particularly concerned about the impact the new Copyright Directive will have on competition within the digital sector given the high-cost of meeting the requirements Directive now creates. The technical challenges created by these new rules show the continued need for lawmakers to better understand the technologies and businesses they seek to regulate. Policy makers have to take responsibility for the consequences of pursuing simplistic solutions to complex problems.

And as ever at present, there’s a Brexit consideration to be taken into account:

From a UK perspective it is now critical that Government gives clear direction on how the UK will use the flexibility the Directive affords on text and data mining tools, and makes clear how the UK will approach the implementation phase of the Copyright Directive given the UK’s departure from the EU.

My take

There’s a problem that needs to be addressed here, but I’m hugely sceptical that this is the right way to go about it. As with the Right to be Forgotten, the potential for abuse that the Directive affords is alarming. The rhetoric coming out of Paris and Berlin is enough in its own right to ring alarm bells. Sadly, while it’s theoretically possible that the Directive won’t get the sign-off from the Council next month, in realistic terms that’s not very likely. Back to court it is then…