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Reform or censorship? - The definitive guide to the EU's Copyright Directive final vote

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BREAKING: On March 26, 2019, the European Parliament adopted the proposal for a directive on copyright in the Digital Single Market.

Probably on April 15, the Member States will have to make their final votes. There is a little uncertainty about the German voting. The German coalition agreement rejects an obligation for platforms to use upload filters.

Update: The final version of the proposal document has renumbered Article 13 as Article 17.

Since 2016, the EU has been working on an update to its copyright laws, in order to make them more adequate to the digital age. The proposed directive, which has been the subject of acerbic public debate, aggressive lobbying and massive grassroots campaigns, is approaching the final vote in the plenary of the European Parliament on the 25-28 March.

While supporters of the bill point to its benefits for European artists and journalists, critics have argued that the proposed laws leave ample room for abuse and would result in sweeping censorship. Articles 11 and 13 of the new directive are the most contentious.

Article 11 would mandate that aggregation websites, like search engine Google or link sharing platform Reddit, will have to pay licences for each piece of copyrighted content that they link to, if said link is accompanied by a quote from the copyright-protected work. Dubbed the ‘link tax’, Article 11 has been lambasted on the grounds that it is unrealistic to require platforms to acquire licences to every possible work that a user or algorithm might link to. Furthermore, there is doubt that copyright can even extend to short illustrative quotes. The result could be a decrease in diversity on the Web. Nonetheless, supporters of the measure believe that it will lead to fair remuneration for journalists, whose work is indirectly exploited for profit by Internet platforms at no cost to themselves.

Article 13 would obligate the owners of Internet platforms where content is user-submitted, like YouTube, Facebook or Wikipedia, to install mechanisms that prevent copyright infringing material from appearing on their platforms. Owing to the bill’s wording, it is widely held that the way to achieve this is likely automated upload filters. That is software which scans each uploaded document for copyright infringing material, and, if it detects any, it does not allow the material to be published. Because accurate, reliable content filtering software is far from being reality, it is likely that internet platforms will choose to err on the side of caution to minimize risks to themselves. Hence, they might overfilter rather than underfilter, thus preventing some legal material from seeing the light of day as collateral damage. Parodies, memes, remixes and illustrative fragments would likely be the first victims, since even the most advanced algorithms have great difficulty in distinguishing between such legitimate uses of copyrighted material and infringement. This effect has been called a “censorship machine” by activists who oppose the directive. It has also been pointed out that this approach is vulnerable to abuse by malicious actors wishing to censor others’ speech by means of copyright claims. However, media groups and some artists have argued that Article 13 is a proportionate measure against infringement, which is rampant on the Internet and tedious to fight against.

Upload filters also signal a fundamental shift in philosophy for internet legislation. Presently, online platform owners cannot be held liable for infringing content posted by users on their platforms, if they comply with requests from the copyright holders to delete the infringing content. With upload filters, however, the approach changes to a “guilty until proven innocent” model where all uploads are seen as potentially illegal from the start, and cannot go public until they get approval.

A less headline-grabbing, but potentially problematic section of the directive has been the part regulating text and data mining, which critics say impedes scientific research, particularly into artificial intelligence.

Media and publishing groups have been remarkably split on the issue of the proposed copyright directive. Organizations such as Discovery, Warner Music Group, the European Writer’s Council and the European Federation of Journalists, as well as invididuals like musicians Paul McCartney and James Blunt, have come out in support of the directive. A petition in support of the copyright directive has been signed by 165 filmmakers at the Venice Film Festival. On the other side, dissident voices opposing the proposal include media company Bertelsmann, actor Stephen Fry, writer Neil Gaiman and journalist Cory Doctorow.

Backlash against the proposal has been severe across Europe. An open letter declaring that “Article 13 threatens the Internet” has been signed by over 70 experts, including Internet Protocol co-creator Vint Cerf, World Wide Web inventor Tim Berners-Lee, Wikipedia founder Jimmy Wales and internet governance expert Tim Wu. The office of the high commissioner on human rights for the UN has expressed concern with the free speech implications of Article 13. Companies opposing it include Reddit, Qwant, Patreon and Kickstarter. Among civil society groups and NGOs who are against the directive are the Electronic Frontier Foundation, EDRi, the Wikimedia Foundation, Creative Commons, Chaos Computer Club and La Quadrature du Net. Almost 5 million individuals have signed a record-breaking petition demanding Articles 11 and 13 be scrapped.

Public discourse surrounding the issue has been highly polarized and emotionally charged. Some against the law have claimed that it will destroy the Internet and end all memes. Also, both sides have claimed that the other side is being manipulated by corporate actors and lobbying.

This last assertion does in fact have some merit. Just last week, it was discovered that a fiasco video released by the European Parliament, which was criticized for its lack of impartiality, had been produced by the Parliament’s contractor Agence France Presse (AFP). As MEP Julia Reda, who uncovered the fact, explains in this video, AFP had a fundamental conflict of interest in the material’s creation, since it has been a longtime supporter of the Directive and had an obvious incentive to sway public opinion.

On the other side, there are equally obvious incentives for Big Tech to evade this type of regulation, and companies like Google and Facebook have raised their voices in opposition to the Directive. Reddit has occasionally shown banners opposing the Directive on their extremely popular home page. However, the issue here is made more complex by another fact. As critics have long pointed out, only very large companies can afford to develop the sophisticated filters of copyrighted content which Article 13 make necessary. This would make the new law a barrier to entry which consolidates current big technology platforms’ market positions. Also, since smaller platforms would have to pay the larger ones for access to the filtering technology, this could prove a boon to Big Tech’s business. For this reason, Google-owned YouTube has lobbied both against and in favour of the Directive.

After lengthy negotiations and exhausting public tumult, the EU Copyright Directive for the Digital Single Market has jumped through most of the procedural hoops and is heading for the final vote in the European Parliament plenary some time between March 25-28. The result of the vote will have ramifications well outside Europe, owing to the Brussels Effect (it is cheaper for companies to comply with the EU’s stringent regulations everywhere, rather than split their business into EU and non-EU branches) and to the Internet’s transnational nature.

With such high stakes and the European Parliament elections less than two months away, it is unsurprising that both lobbying and grassroots campaigns have intensified on this final stretch. Europe-wide protests are announced for the last week leading up to the plenary meeting. As of the writing of this, 106 out of 751 MEPs have taken a pledge to vote against Article 13.

The final text of the law which the European Parliament will vote on on March 25-28 can be found at this link.

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