In July, a committee for the European Parliament voted to move forward with new copyright legislation that would totally overhaul the way the internet works and threaten the existence of everything from encyclopedias to memes. On Wednesday, amendments will come up for a vote, and the future of the world wide web is at stake.
The EU Copyright Directive was originally a much more timid set of reforms, said Julia Reda, a member of European Parliament from Germany. This past spring, the legislation became extremely controversial when Articles 11 and 13 were introduced. Critics say these two misguided proposals would stifle innovation, give more power to big monopolies, harm the flow of information, and generally turn the web into a pretty boring place. Over 70 of the most prominent tech experts in the world (including Tim-Berners Lee, the inventor of the world wide web) condemned the copyright directive in a group statement in June. It will apply to so many countries and be so complicated that there’s reason to believe it would simply become the de facto standard for the world.
In June, the EU’s Legislative Committee decided to move forward with debate and a full vote from parliament, but public outcry and street protests ensured that amendments would be inevitable. More recent protests were sparsely attended, and there’s a fear that public awareness has dwindled. Unfortunately, Reda told Gizmodo in a phone interview, this thing is likely to get passed in one way or another—it’s just a matter of how disruptive it will be for everyone.
“The Link Tax”
Article 11 is primarily the result of pressure from large press publishers lobbying for legislation to force major platforms like Google and Facebook to pay for the privilege of linking to a news organisation. These publishers have seen a drop in readers as the public has gradually moved to search engines and social media to find news rather than visiting an outlet’s homepage. This piece of the copyright directive has also been called a link tax or snippet tax. It would give copyright protections to the publisher, not the author of the piece, that would prohibit a website from using a quote or headline from an article, or even linking out to it, unless that site pays for a link license. Proceeds from the license fees would go to the publishers and make up for revenue losses that have come with the information age.
News spreads through aggregation, social media links, hot takes, and search results these days—the era of picking up the paper at the newsstand has plateaued. But some publishers think they can put the genie back in the bottle. Reda told us that those in favour of the link tax misunderstand platforms like Google’s core priorities. “They make their money through advertisements that are usually more attractive next to personal postings or searches about products than about news,” she said. “So the result would be that these platforms would simply stop linking.” In fact, a similar law in Germany was considered a failure; when it was tried in Spain, it resulted in the shuttering of Google News; and a study commissioned by the EU found “little evidence that declining newspaper revenues have anything do with the activities of news aggregators or search engines.”
Obviously, it’s bad enough that Article 11 will likely harm publishers and hobble the spread of current events and the public’s easy access to information, but there’s a further threat to the freedom of information when it comes to non-profit outlets like Wikipedia. Reda told Gizmodo that if this measure is adopted, “Wikipedia would have to go through all the existing articles and check where they are linking to news articles as a form of proof and whether they’re still allowed to do that.” This threat to Wikipedia has been a particular thorn in the side of people who support the copyright directive, and public outcry has resulted in specific exceptions being made for online encyclopedias. But critics argue the legal language in that carveout is inadequate and still leaves encyclopedias vulnerable to penalties.
Lots of different amendments and exceptions are floating around that range from protecting companies like eBay and Dropbox to excluding any site that brings in less than €2 million worth of revenue per year. Reda believes that all of the exemptions “are a little bit risky.” She points to one blind spot in the fact that Wikipedia relies on Wikimedia Commons for the media it embeds, and that service wouldn’t be covered under any exemptions—which brings us to the other dangerous piece of this legislation.
While Article 11 threatens the free flow of information, Article 13 proposes a potentially ruinous system of copyright-protection requirements that would be a disaster for fair use, memes, art, privacy, fandom, and dumbass vlogs. Essentially, Article 13 asks websites to prevent the illegal upload of any copyrighted material. It does so by requiring sites to implement a content ID system that would be similar to the one YouTube spends millions of dollars to develop and maintain. In fact, the EU could potentially require something even better than what YouTube has.
Stiff penalties could be leveraged against a platform for allowing the upload of copyrighted content even if it’s coming from a user. While YouTube relies on a system that often prevents unauthorised uploads, it also inadvertently lets some copyrighted content through its filters. In those cases, it removes the content upon request from the copyright holder. Under the EU copyright directive, a site could be in violation for that failure to catch the content before it went live.
This is the EU believing that some sort of magical technology exists that no one has invented yet. YouTube’s content ID system sucks. It regularly misidentifies work as being the property of music labels or succumbs to copyright trolls claiming ownership of everything from educational videos to white noise to birds chirping. “This happens all the time because these upload filters are not capable of understanding context, understanding copyright exceptions like parody or quotation, and they don’t understand the public domain,” Reda said.
A factor that further complicates these requirements is that a content ID system isn’t clearly defined in the legislation. Article 13 merely suggests the use of “effective content recognition technologies” to prevent a website from running afoul of the law. Some believe that a centralised database will be created for all the platforms that can’t afford their own in-house system. This would allow copyright holders to submit their claims of ownership and new uploads would be checked against those claims. The problem is that there are no penalties included to prevent someone from making fraudulent copyright claims, and each site would have to make individual judgements on whether it is worth the risk of going to court over a claim. So when someone says they own the collected works of Shakespeare, a site would have to ask themselves if this person is willing to take it to court. The quickest solution would simply be to let the filter do its work and second guess nothing.
This whole proposal has wide implications for virtually everything on the internet. If you make a funny video at the club, that music in the background is a copyright violation. Repurpose an image for a meme and suddenly you’re violating copyright. Take a selfie while wearing a Metallica shirt and you could see it vanish before it hits Instagram. Say goodbye to mashups, remixes, and fan fiction because fair use would be a thing of the past. In this mess of copyright-filtering dystopia, if the algorithm picks up that one sampled snippet of music that’s part of your rich original tapestry, it can be taken down until a dispute is resolved—if a dispute is resolved at all. J.K. Rowling may have registered her ownership of Harry Potter on the database, and your Hogwarts slash fic has to go. Reda even pointed out that some countries don’t allow people to photograph public buildings because of image rights that are extended to architects. In response, more than half a million people have signed a petition to make such photography legal across the EU.
What Happens Next
On Wednesday, members of parliament will gather for the first reading of the proposal for the full chamber. That doesn’t mean that Wednesday will bring a final decision; debates will begin, and further parliamentary procedures will be in order. But Reda holds no illusions that we’ll see Articles 11 and 13 killed off completely. She told us that even though small publishers oppose the directive, some powerful outlets really want it. “We have European elections coming up in May, and nobody wants to be on the bad side of their local news organisation,” she said. Reda sees this as an inevitability that has to be fixed as best as possible before it’s too late.
There are 751 members of the European Parliament that all might have their own ideas for what needs to be done. Reda has outlined some counterproposals on her website that she thinks are reasonable. She said she’s attempting to focus on getting copyright holders what they want while removing the worst parts of the legislation. For instance, she suggests that a publisher can ask a website for a license agreement if they reprint an entire article or paragraphs from an article without permission. That would leave snippets, links, and headlines up for fair use.
For Article 13, she wants to deviate further from the proposal and give creators more negotiating power against platforms like YouTube. “So it would basically say a platform that actively intervenes in the user-uploaded content by monetising it would have to get a license for that content,” she said. That would put more responsibility on the tech giants that are reaping huge profits and mostly keep in place the status quo for smaller platforms that aren’t monetising individual pieces of content through methods like advertising pre-roll on video.
The Wikimedia Foundation has assembled a list of amendments that it approves of and is asking citizens to urge their MEPs to support them. It’s also pushing for specific safeguards on content that’s in the public domain, as well as text and data-mining exemptions for researchers.
The worst case scenario is a worldwide reorganisation of the online space we love to hate. But even if this proposal only ends up affecting countries in the EU, we’re still talking about a dangerous compartmentalisation of significant chunk of the web. Europeans are encouraged to contact their representatives to put their opinions on the record. For the rest of the world, we’ll just wait and see.