Europe deals the open internet a blow as controversial copyright rules take a step closer to law

Stuart Lauchlan Profile picture for user slauchlan September 12, 2018
Europe just dealt the open internet a blow - and probably undermined its own Digital Single Market economy plans in the process.

The European Parliament has changed its collective mind and chosen Paul McCartney over Tim Berners-Lee - and the consequences for big tech and the future of the open internet could be immense.

The Parliament in Strasbourg voted on delayed controversial copyright law proposals designed to bring legislation up-to-date for a digital age. The proposals had been rejected in a vote in July and sent back to the European Commission to be amended.

Supporters of the plans included musicians and artists, such as McCartney and Wyclef Jean, as well as Euro politicians keen to give the likes of Facebook and Google another bloody nose. Opponents include just such firms, tech industry associations and lobby groups and experts such as Tim Berners-Lee, creator of the World Wide Web.

In the event, it was the supporters who held the day. Member of Parliament voted for the controversial rules with 438 votes in favor, 226 against and 39 abstentions. Prior to the vote, Andrus Ansip, Vice-President of the EC in charge of Digital Single Market, told Parliament that they faced:

A one of a kind opportunity to adapt copyright rules to a digital age. If we fail to start trialogue negotiations [within the EU's main institutions], the directive may be pushed back several years. In this case, in the short term there will be only one winner: large [tech] platforms. No one else. Not creators and artists, not citizens, not researchers, not teachers, not even start-ups and small platforms can win – and not even bigger platforms can win from fragmentation. It will be a lose, lose situation.

On the face of it, the European Commission’s proposals sound well intentioned:

  • To bring up to date and harmonise some important exceptions to the copyright rules in the fields of research, education and preservation of cultural heritage;
  • to foster quality journalism;
  • to ensure that those who create and invest in the production of content have a say in whether and how their content is made available by online platforms and get paid for their content;
  • to increase transparency and balance in the contractual relationships between the creators (authors and performers) and their producers and publishers.

But the two main points of concern were Article 11 and Article 13.

Article 11 introduces a so-called ‘link tax’ which would mean that social media platforms, such as Google and Facebook, could have to pay news organisations to use their headlines on their sites. Supporters counters that hyperlinks will be exempt, but critics say the rule would change the entire nature of the internet and sharing of information.

Article 13 calls for "effective content recognition" technology to filter out copyright-protected content. This was the clause that led to an open letter from 70 leading internet experts, including Berners-Lee, which warned that the Article 13 could be abused by governments and surveillance agencies to undermine basic freedoms:

We cannot support Article 13, which would mandate Internet platforms to embed an automated infrastructure for monitoring and censorship deep into their networks.

Tech condemnation

The outcome of the vote led to condemnation from tech associations on both sides of the Atlantic. In the US, the Computer & Communications Industry Association (CCIA) said in a statement that Europe had delivered a self-inflicted blow:

[These measures] will undermine free expression online and access to information. Upload filters will introduce a general obligation to monitor user uploaded content, thereby damaging European citizens’ fundamental rights and undermining platforms’ limited liability regime, a legal cornerstone for the European digital sector.

CCIA Senior Policy Manager Maud Sacquet added:

We regret that a majority of Members of the European Parliament ignored the widespread warnings on the risks of the copyright proposal. We now urge the Council and Parliament to come to a balanced outcome in the final negotiations.

For its part, techUK, the UK’s tech sector trade association, warned that the outcome of the vote yesterday is a blow to the Digital Economy in Europe. Head of Brexit, International and Economics, Giles Derrington, said:

Far from advancing the European digital economy through the Digital Single Market, the proposals adopted by the European Parliament today will lead to significant additional burdens on companies seeking to serve the European market. It is bad news, not just for UK digital businesses, but also for the general public who now risk seeing their freedoms online being restricted.

While the aims of the Copyright directive proposals were understandable, the method that has been adopted will not achieve the stated objectives. Requirements for platforms to filter all user uploaded content will likely result in a reduced user experience and the over-removal of legitimate content. The creation of a new neighbouring right for press publishers will make sharing news articles online more difficult, making it harder for the public to find good quality journalism online. Today was also a lost opportunity to make Europe a more attractive place for Artificial Intelligence development. Instead, fragmented rules across the EU will mean a confusing picture on where text and data mining technologies are allowed.

The rules will now move on through the next stages of the approval process, which will include a final vote in January, which looks set to see the rules passed. EU member states will then choose how to enforce the directive in national law.

There's also the question of what the UK’s position will be, post-Brexit. Derrington noted it's another unwelcome factor to be considered:

To be clear, the UK leaving the European Union will not protect UK businesses from these new requirements. Any UK business seeking to serve the EU market will have to comply with the directive which, given the size and importance of the EU market to UK businesses, will be a significant barrier to market entry.

My take

I said back in July when the European Parliament sent an earlier version of these proposals back to the drawing board that it was only a battle won, not the war. And I stated:

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.

Nothing that happened yesterday has made me change my mind. The tweaks to the proposals that managed to push it through the European Parliament are just that - tweaks.

If it comes down to who I trust on this subject, Sir TIm Berners-Lee who created the WWW “for everyone” or a career politician like Ansip, who’s demonstrated his digital shortcomings on many occasions, there’s no real choice...

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