The problem with the latest copyright directive

There are some digital directives coming from the European Union that improved the rights of the EU citizens and the internet as a whole, for example the latest General Data Protection Regulation - GDPR. On the other hand, there are some directives that are based on a complete misunderstanding of how the internet and technologies work. In the best case, they don’t improve nor destroy anything and only result in annoying the internet users. One such example is the directive that requires websites to ask users if they approve any usage of browser cookies. The only result of this is that we learned to quickly close windows that pop-up on the bottom of the screen without even reading their text.

Unfortunately, this example didn’t warn the legislators and there is a new law coming with potentially terrible consequences for businesses, which can also violate free speech on the internet.

There are two problematic parts (Articles 11 and 13) of the new copyright directive that are, broadly speaking, trying to solve the same problem. It is believed that big internet companies (e.g. Google, Facebook, etc.) are harming certain segments of our industry or society and, therefore, they should be penalised for this. While this is a valid point, it would be wrong to make everybody else in the industry to suffer and, at the same time, let the big tech companies to get away with it. And this is precisely what is about to happen.

Article 11

Article 11 is trying to protect European journalists by introducing a new form of copyright. With the new directive, citing even a small part of a website should be subject to a licence which needs to be negotiated and paid for, if necessary. What does “a small part” really mean is left to the implementation of national governments, and it can be as little as just the title of the website. In practice this is introducing a link tax.

The justification for this is that search engines and news aggregators are making money from ads whils journalists are struggling to get by. However, this reasoning is simply short-sighted. The same idea has been tried before in Germany and Spain and it had the opposite effect. Newspapers were immediately hit by this when the number of their visitors drastically dropped. As a consequence, the larger newspapers allowed the big internet companies to use their content for free and the smaller newspapers, that is, the less important for big tech giants, continued to suffer.

Article 13

Similarly to Article 11, Article 13 is hoping to help artists and prevent violations of their copyrights on the internet. There are already existing mechanisms in place but Article 13 goes over the top and introduces some brutal measures. In essence, it is requiring internet platforms (such as Facebook, Youtube, Instagram, etc.) to check if the content uploaded by their users is not violating copyrights of anybody anywhere on the internet. A failure to do so would be punished by huge fines.

The problem with this is that every internet user is a potential rightsholder. And so Article 13 requires internet platforms to check against everything ever published online. This legislative is simply put impossible to get right. You can’t keep track of copyright contracts between 3 000 000 000+ internet users and millions of companies operating unlike.

Internet platforms are effectively being forced to implement automated censorship mechanism that would remove any potentially copyrighted material. Moreover, because the fines are so huge, internet companies are also being forced to rather preventively overblock than to worry about the consequences.

It seems to me that those who drafted and negotiated the legislation don’t realise how bad the tech companies currently are at preventing violence or pornography being uploaded to their platform. Now imagine how it would land if we pushed Facebook or Youtube to censor even more, despite that they are already failing at this.

There is more to say about Articles 11 and 13 but I leave it for now. See the references below for more in-depth explanations.

It is tempting to play on the revenge note and simply just hope to punish Google and Facebook. However, it is not as simple. When approving a piece of legislation, one should always ask:

  1. Who is going to be hurt by the law?
  2. Who is going to benefit from it?

I tried to answer 1) above. Those who will suffer the most are going to be small newspapers, businesses that can’t afford to implement automated censorship systems, artists and creative users who are uploading content onto the internet platforms, and everyday internet users too.

When answering 2) it seems to me that we might be accidentally creating another new evil player (alongside Google, Facebook, etc.). It is no secret that many of the intellectual property companies/large copyright holders lobbied for the new copyright directive and it’s them who’s going to benefit from it the most. They often present themselves as those who are defending artists but they never mention that there are many who don’t want to be represented by them.

Given that the large copyright holders all around Europe already tyrannise organisers of wedding, small concerts, owners of small shops, etc., and act as though they were both the prosecutors and judges, it does not make sense to award such immoral behaviour by giving them even more power.

Closing words

There have been many warnings from hundreds of internet companies, scientists, petitions signed in millions, demonstrations all around Europe and still the proposed directive is holding up. If an intended law is meant to hurt big companies, that’s okay but how about doing it without breaking the internet?

References

  • The European Copyright Directive: What Is It, and Why Has It Drawn More Controversy Than Any Other Directive In EU History? [eff.org]

  • Artists against Article 13: when Big Tech and Big Content make a meal of creators, it doesn’t matter who gets the bigger piece, [boingboing.net] and [eff.org]

  • More than 130 European businesses reject the copyright directive [eff.org], as well the Internet’s top technical experts, largest sport leagues and film studios and more [eff.org]

  • Martin Kretschmer: “The EU would lose little if it simply rejected the directive” [irights.info]

  • Julia Reda: The text of Article 13 and the EU Copyright Directive has just been finalised, [juliareda.eu], and her 3 minute summary

  • Wikipedia disapproves the directive as well, [wikimedia.org]

  • A petition to stop the directive can be found on change.org. It reached more than 5 million signatures, making it the largest petition in European history.

  • Why Does MEP Axel Voss Keep Lying About Article 13? [techdirt.com]

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