EU Copyright Directive: A dark day for internet freedom?

EU Copyright Directive: A darkday for internet freedom?

The controversial EU Copyright Directive has been approved by the European Parliament following a 348 to 274 vote.

The EU parliament voted to adopt the reform in September of last year. The texts for the controversial articles 11 and 13 were agreed in February.

Ben Wodecki reports

What’s in the texts?

In the agreed text of article 11 (now 15), the reproduction of more than single words or very short extracts of a news story would require a licence. This would cover snippets of news that appear alongside links.

No exceptions will be made for this, meaning individuals, small companies and non-profits will be affected.

Article 13 (now 17)’s finalised text will see content platforms and apps like YouTube, Facebook and Twitter requiring individual licences from rights holders in order for users to post material.

Under article 13, sites would be found directly liable for copyright infringement if infringing content uploaded by a user is found to be on it.

Filters

Speaking in the debate before the vote, the EU’s copyright rapporteur Axel Voss claimed that the centre of this debate is lost and that the reform “will not restrict reasonable freedom of expression”.

He accused online platforms, such as Google, YouTube, and other major platforms of engaging in “a misinformation campaign”.

Referring to the multitude of online petitions against the reforms, he said: “It is easy to use young people as a tool, [but] what is at stake is our democracy. This is a fundamental rights issue and is about fair remuneration for rights holders.”

Much of the outcry has been against supposed filters which would likely be implemented as a result of article 13. In an exclusive interview with IPPro, Voss said that all that all measures that “might look like a filter” had been removed after failure in the first plenary vote.

Many have spoken out against the reform, including Google, YouTube and German data privacy commissioner, Ulrich Kelber. Both YouTube and Google ran ad campaigns on their platforms warning users that the site may be drastically changed under article 13.

Responding to the outcome of the vote, a Google spokesperson said: “The Copyright Directive is improved but will still lead to legal uncertainty and will hurt Europe’s creative and digital economies. The details matter, and we look forward to working with policymakers, publishers, creators and rights holders as EU member states move to implement these new rules.”

Voss did not respond to a request for comment.

Those in favour

A number of European publishers had expressed their support for the reform, particularly article 11.

Following the vote, the president of European Newspaper Publishers’ Association, Carlo Perrone, said: “This is an historic vote for Europe’s soul and culture”.

“After more than two years of debate and scrutiny, fairness has prevailed in the form of a copyright reform that will be essential for the future of press publishing and professional journalism.”

“Thanks to this directive, web users are now guaranteed a pluralist and democratic internet in the years to come.”

Xavier Bouckaert president of the European Magazine Media Association said that the vote was “against content theft”.

He added: “Publishers of all sizes and other creators will now have the right to set terms and conditions for others to re-use their content commercially, as is only fair and appropriate.”

Christian Van Thillo, chairman of the European Publishers Council claimed that the text “modernises copyright without stifling digital innovation”.

Thillo continued: “This text modernises copyright without stifling digital innovation”.

“As press publishers, we would like to thank Europe’s regulators for adopting this important directive that acknowledges the value of the press to society and the need for fair remuneration for the commercial re-use of our IP.”

Fernando de Yarza Lopez Madrazo, president of News Media Europe, concluded: “This directive will help forge a healthier working relationship between creators and platforms and will help news publishers continue to invest in the creation of fact-checked, professional content to enrich the internet and benefit consumers.”

Those opposed

There has been a gargantuan outcry from those opposed to the reforms, including an anti-article 13 petition that reached over four million signatures and protests from thousands in the EU the week before the vote. But on the whole, this opposition didn’t seem to be enough to sway individual members sentiments in the European Parliament, although a few minor edits were made to some areas of the reforms that were deemed unpalatable.

Pirate party MEP and outspoken critic of the reforms, Julia Reda said that the vote was “a dark day for internet freedom”.

She claimed that the new law, in is current form “threatens a free internet as we know it. Algorithms cannot distinguish between actual copyright infringements and the perfectly legal re-use of content for purposes such as parody. Obliging platforms to use upload filters will lead to more frequent blocking of legal uploads and make life difficult for smaller platforms that cannot afford expensive filter software. Voss and the majority of MEPs today missed the opportunity to give the EU a modern copyright law that protects both artists and users. We will continue to fight against upload filters and against this new European law.”

Ska Keller, president of the Greens/EFA Group in the European Parliament and lead candidate of the European Green Party for the European elections, commented: “This is a lose-lose deal. This agreement is bad for artists, authors and small publishers and bad for internet users. The deal will end up further entrenching the dominant tech and media giants and lead to less diversity online. We strongly support the goal of fair remuneration for artists and creators of culture, but this deal helps neither creators nor internet users. Now it is up to the governments of the EU Member States to take into consideration the millions of people who stood up against this law and vote against the agreement in council.”

Raegan MacDonald, Mozilla’s head of EU public policy said there was “nothing to celebrate today. With a chance to bring copyright rules into the 21st century the EU institutions have squandered the progress made by innovators and creators to imagine new content and share it with people across the world, and have instead handed the power back to large US-owned record labels, film studios and big tech. People online everywhere will feel the impact of this disastrous vote and we fully expect copyright to return to the political stage. Until then, we will do our best to minimise the negative impact of this law on Europeans’ internet experience and the ability of European companies to compete in the digital marketplace.”

Ghost debate?

The Federal Chair of German Association of Journalists, Frank Überall, criticised the overheated debate regarding the copyright directive, arguing that it was a “ghost debate”.

“As far as the protection of authors or serious concerns of users is concerned, but rather the defence of the privileges of large Internet corporations goes”.

He argued that it has “nothing to do with censorship of the internet” and that anyone who confuses this “has not understood the freedom of expression”.

“The draft directive does not foresee anything like that.”

The legal view

Kathy Berry, senior lawyer at Linklaters highlighted that the majority of the controversy surrounding the debate is “Hollywood v Silicon Valley tension between content creators that want a high level of copyright protection based on traditional models, and the tech industry that wants to clear the path for new and innovative ways to use and share content”.

Berry recognised article 13’s “noble aims” but added that in its current form “it functions as little more than a set of ideals”.

She added: “[Article 13 has] very little guidance on exactly which service providers will be caught by it or what steps will be sufficient to comply.”

“This is likely to result in an ongoing lack of legal and commercial certainty until the scope of the Directive is fleshed out by either the Commission’s proposed guidance or by European jurisprudence.”

Berry remarked that the deadline for implementation of the directive is expected to be in May 2021, which “may fall after the date on which the UK leaves the EU”.

“If that is the case, the UK is unlikely to be required to implement its provisions. However, UK businesses providing their services in the EU will still have to comply, and it is at least conceivable that the UK will choose to implement it regardless.”