New EU Internet Copyright Bill, Articles 11 and 13

The infosphere is aflame with a new battle in an old war: how copyright should be handled on the Internet.

The Guardian has background:

It is an argument that has drawn in the likes of Paul McCartney, Plácido Domingo and the Vienna Philharmonic, as well as pioneers of the internet from Tim Berners-Lee to the founder of Wikipedia, Jimmy Wales.

Fought with hashtags, mailshots, open letters and celebrity endorsements, the battle over the European Union’s draft directive on copyright heads for a showdown this week.

After two years of debate, members of the European parliament will vote on Wednesday on the legislation, which could change the balance of power between producers of music, news and film and the dominant websites that host their work.

[…]

Critics claim the proposal will destroy the internet, spelling the end of sharing holiday snaps or memes on Facebook. Proponents are exasperated by such claims, described by German Christian Democrat Axel Voss as “totally wrong” and “fake news”.

Two sections in particular are controversial: Articles 11 and 13. Both sides (both sides!) are being very hyperbolic about these. The gist is that groups like the Electronic Frontier Foundation and people like Cory Doctorow say these are “internet-destroying regulations,” and the proponents’ response (from what I’ve seen on Twitter) is to paint all opponents as paid industry shills who hate artists. I’ve attempted here to come up with what I hope is an even-handed summary. I Am Not A Lawyer, so please tell me what I’ve gotten wrong.

This is a bit long, so click through if you’re interested. Note of course that these are EU laws, but so is the GDPR, and we’ve all experienced the effects of that.


Article 11

In brief, Article 11 would give news organizations copyrights over ‘snippets’ of their articles, including the headline, lede, and thumbnail presentation. For example, the Guardian would have the right to charge Google News for this aggregation:

 

Supporters say (perhaps naively) that this would help news producers get paid for their content. Opponents deride it (definitely disingenuously) as a “link tax” that will destroy sites like Wikipedia. I found what seems like a decent analysis from anti-plagiarism activist/expert Jonathan Bailey, who says:

Paragraph 1 of Article 11 simply reads as follows:

Member States shall provide publishers of press publications with the rights provided for in Article 2 and Article 3(2) of Directive 2001/29/EC so that they may obtain fair and proportionate remuneration for the digital use of their press publications by information society service providers.

Article 2 and 3 referred to in the paragraph are simply the reproduction right and the right to communicate a work to the public.

However, the definition of “information society service providers” is a bit thornier to get through. That definition is found in this directive, which describes it as “any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.”

What is and is not considered such a service gets extremely complex quickly (with many exceptions carved out). However, key examples include “Web shops and marketplaces, search engines, online advertising, video sharing sites, blogs, hosting, video-on-demand, online consultancy, online marketplaces, social networking, etc.”

[…] exemptions do not include a fair use or fair dealing.

Such laws have been tried in Spain and Germany. In Germany, Google made News opt-in: if you wanted to be included in their aggregations, you had to let them do it, and for free. The result was that most sites opted in. This wasn’t an option under the Spanish law, so Google simply shut down their Spanish news site. According to a study commissioned by Spanish publishers,

[I]n the short-term, the study found, the law will cost publishers €10 million, or about $10.9 million, which would fall disproportionately on smaller publishers. Consumers would experience a smaller variety of content, and the law “impedes the ability of innovation to enter the market.”

The study concludes that there’s no “theoretical or empirical justification” for the fee.

It might also make links and excerpts such as the ones I’ve provided here illegal without licenses.


Article 13

Currently, the burden of not posting something copyrighted on a platform like YouTube falls on the user. If a user does publish such a thing, they can be penalized under laws like the still-controversial Digital Millennium Copyright Act and forced to take the content down. (Obviously this is an American law, but that’s the context I’m familiar with.) Article 13 would shift that burden to the platform. YouTube and sites like it would become responsible for any copyrighted material published by their users.

You may be familiar with the debate over what, exactly, a ‘platform’ like YouTube or Twitter is. Are they more like a newspaper or a community bulletin board? Article 13 gets right to the heart of this, with a clear answer: they’re responsible for their users’ content; they’re definitely not a corkboard in the quad. Bailey again has a good summary of this, but it’s fairly complex stuff with a lot of carve-outs, and I’d recommend reading through that link. (Notably, it excludes things like blog comment sections, which is good, since sometimes people excerpt entire articles.)

It really comes down to this:

The larger impact is the shift from filtering as a tool of expediency to an obligation.

Sites like YouTube already use automated filters to find and report/remove copyrighted content. (This can have hilarious effects like removing video lectures on fair use.) However, they use these filters voluntarily, to reduce the volume of incoming complaints. Article 13 would, most likely, result in pre-filtering of user content. Opponents deride this as a “censorship machine” and “meme-killer,” saying that it would automatically tag remixes, or things like not-sure-if Fry, as copyrighted material, and prevent them from going up.

This is probably not true! But any filter, automated or not, is going to have false positives; making such filters obligations will increase the false-positive rate, since suddenly a false negative would have a penalty, and that is how filters generally work. So really, it’s a question of what kind of filters we want, when we want them used, by whom, and at what cost.


Tricky stuff! But I thought I’d bring it to everybody’s attention. Anybody care to weigh in? I usually fall on the same side as the EFF but it seems like they’re being very over-the-top here. Article 13 may just be a proxy war between big production studios and Google.

(cross-posted from Balloon-Juice)

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