With Articles 11 and 13, the EU is threatening free speech online and losing its credibility as an informed regulator of the tech industry.
Most of you will have heard of the landmark European data privacy legislation – the General Data Protection Regulation, more commonly referred to as the GDPR. Whether your inbox was flooded with privacy statement updates or you’ve been accepting cookie notices on websites since March of this year, the GDPR’s changes to data privacy laws in the EU have been very visible. The legislation was thoroughly covered by the media and discussion over its merits extended far beyond the usual technology policy circles.
Regardless of whether you agree with the finer details of the GDPR and its implementation, it led to a productive and urgently needed conversation on updating data privacy norms. To the majority of the tech policy and digital rights community, it also confirmed what had been long suspected – the European Parliament will lead the way in regulating technology companies and take necessary steps that the U.S. government is unwilling to take. However, the same European Parliament passed a Copyright Directive in September that contains two highly controversial Articles, 11 and 13. One will inhibit the free flow of news stories on the internet. The other will censor creative content on internet platforms. Compared to the GDPR, this development has received minimal attention yet it stands to alter the free and open internet in far more radical ways, and not for the better.
It is not entirely clear why public reaction has been subdued. Perhaps copyright issues are not as mainstream yet as data privacy ones. Or perhaps, it has to do with the fact that this Copyright update has evolved as a result of very deliberate lobbying efforts from the European media, music and news industries — the same news industry that is now staying notably silent as their corporate lobbyists continue to promote this controversial legislation. Needless to say, this has been disheartening to watch and the discrepancy between values being upheld in the GDPR versus the Copyright Directive sends a very inconsistent message from the EU on how they will regulate tech.
Under Articles 11 and 13, the memes, parodies, satirical pieces, lip syncs, mashups and even news article links that populate your online experience will all be under threat from new copyright monitoring practices. Article 11, also known as the “link tax”, gives news publishers the right to decide who may quote and link to their stories, and demand a licensing fee every time an online platform or news aggregator does so using a snippet of the article. Over the years, aggregators such as Google News have become the middlemen for sharing and distributing media content. Large media publishers have felt the pinch as their classified ads revenue has diminished and online platforms (think Facebook and Google) have reaped the benefits of using online news content to drive traffic to their own sites. Some of Europe’s biggest media houses, like Axel Springer, have been the biggest proponents of this law. Yet, the apparent targets (large tech companies) are the only ones with the resources to pay these licensing fees, and even they may find it financially difficult. On the other hand, smaller news sites and non profit organizations who rely heavily on news aggregators to share their stories widely will most certainly suffer. Some exemptions are made in the Directive for private and non-commercial online actors (in other words, you as an individual will still be able to freely share news articles), but there is ambiguity over who qualifies as a commercial actor. When a similar law was enacted solely in Spain a few years ago, Google News chose to shut down their operations rather than pay the taxes. Studies conducted after the Spanish law was implemented found that daily visits to news outlets decreased by 14% and small news publishers were particularly harmed. Clearly, this does not bode well for Article 11.
Article 13 places an obligation on all large internet platforms to screen user-generated content for potential copyright infringements. If the content does not pass the copyright test, it will not be uploaded. Until now, the laws in both Europe and the U.S. have stated that a company like Facebook is not responsible for actively monitoring user content for copyright infringement, and is only required to take an upload down when notified of a violation. This is referred to as the “notice-and-takedown” method, which Article 13 will reverse. Entertainment industry advocates claim that artists are unfairly paid by internet platforms like YouTube; this will go some of the way to remedy that. Even big names like Paul McCartney have gotten involved on this side of the debate. However, the only technically feasible way to actively and continually monitor user content is by using filtering algorithms which, in their current state, are inaccurate and expensive. They will frequently flag parodies, memes, music remixes and content from upcoming creators as infringing, which is why Article 13 is also referred to as the “meme ban” and can easily turn into censorship. Moreover, these algorithms will match uploads with a crowdsourced database of copyrighted works that anyone across the world can add to. There is huge opportunity to abuse this system as there is no requirement to prove copyright ownership when submitting works to the database.
Since the Copyright Directive passed the parliamentary vote, YouTube’s CEO and head of music have both publicly warned of the detrimental effects these laws will have on the music community and stated that “YouTube does not have the technical or financial capabilities to enforce the kind of copyright restriction the European Union is seeking.” Typically, only companies as large as YouTube are able to build algorithms required for copyright detection in-house (their current Content-ID system cost $60 million to build) so if even they are able to plausibly argue that these regulations are cumbersome, then it is hard to imagine how small and medium tech businesses will begin to comply. Instead, they are much more likely to see the high cost of creating copyright filters as a barrier to entry and avoid entering the industry altogether, concentrating market power with larger companies. Just like Article 13, this law ultimately rules in favor of the very companies it is supposedly targeting.
At face value, these developments do not seem out of character for the European Parliament which in recent years has become known as a “regulatory superpower” especially when it comes to the digital sector. From hefty fines levied on companies for tax evasion to the GDPR, the message has always been that Europe will no longer stand by as technology companies operate with little to no oversight over their business models and in turn, strives towards a safer and more robust internet for its citizens. After the Copyright Directive, the message remains that the EU will heavily regulate, but whether this will be done in an informed way, based on a consistent set of principles, is now up for debate.
When the Copyright Directive was first proposed by the European Commission, Germany was the only member state explicitly supporting it. Over the period of a few months, almost all other EU countries switched their stance. Although there are many factors at play here, large German publishing houses almost certainly created some of this conversion through very concerted lobbying efforts. From its inception in the European Commission through its many amendments, the Directive text has always been influenced by the media industry promoting its own interests. Regular internet users or those actively protecting an open internet have not had enough of a voice in the drafting process.
There is no doubt that the Directive, and Article 13 in particular, will have global consequences that extend far beyond the EU. Even the internet’s original architects have heavily criticized it. The internet is predicated on the free flow of information across borders and so censorship in one part of the world necessarily amounts to some censorship in other parts too. The Electronic Frontier Foundation points out the key challenge with these laws – how will internet platforms selectively block parts of online conversations, filled with memes, audio, text and so on, only for their EU users? The most worrying answer to this question would be for companies such as Twitter and Facebook to extend EU standards to their entire user base for ease and convenience. As Daphne Keller of Stanford’s Center for Internet and Society has pointed out, we should be very concerned about internet laws from one country or region being exported globally.The risk of this happening after the EU’s Copyright Directive, and spreading Article 13’s censorship practices internationally, poses frightening consequences worldwide.
We are also already seeing spillover effects of the Copyright Directive into other industries. In a recent ruling on autonomous vehicle regulation, the European People’s Party, which avidly supports the Copyright Directive, voted down the law that ensures data generated by self-driving cars is not considered creative content and therefore does not warrant copyright protections. Now, instead of being publicly available to those advocating for autonomous vehicle safety, this data will likely belong to car manufacturers who will dictate its use and availability. The Copyright Directive could be setting dangerous precedents for other industries that we have yet to learn of.
Articles 11 and 13 have made it far in the legislative process but not without opposition. The Articles failed to pass the first vote in the European Parliament and the entire Directive was only passed in a second vote after numerous amendments. Although we have not reached an optimal version of the text, each act of opposition has seen a new clause or allowance added which furthers the free internet’s cause. For instance, exemptions have been made for Wikipedia whose service wouldn’t survive if it had to pay licensing fees for every hyperlinked news piece. Wikipedia, however, is fortunate to have the clout and resources to make noise. Others who will be affected by Articles 11 and 13 do not, and so we must keep speaking up on their behalf.
We know that copyright laws need to be updated. The current laws date from a time when YouTube and SoundCloud did not exist and memes, mashups and parodies did not dominate our online experiences. But all of these things have also enriched the internet and reinforced its role in upholding free speech. Getting rid of them is not the answer to copyright issues.
For now, Articles 11 and 13 have only proven that the European Parliament is not living up to its promise as the body that will intelligently hold tech companies accountable and if anything, is subject to the same lobbying forces which prevent regulation in the U.S. The EU has failed to demonstrate a commitment to protecting freedom of expression online and has instead bolstered the arguments of those who criticise them for a heavy-handed approach to digital regulation. To regain any credibility amongst the tech and digital rights community, the EU will have to course correct. If not, this new Copyright Directive will open the door to more regulation that threatens an open internet.
European citizens, speak up!
The Copyright Directive is currently in its final stage – the trilogue negotiations. This is when representatives from the member states work with the European Parliament, Commission and Council to write a bill that can be implemented in each EU country.
Typically, this stage is simply about finalising language and bureaucratic details, but since the Articles in question are so divisive, there is potential to change substantive elements of the Directive text. A leaked document from the trilogues show that progress has been minimal so far.
Internet users in Italy have already shown that by speaking up, they were able to change the stance of their national representatives who can most directly influence the direction of the Directive. If you are an EU citizen, here is what you can do:
- Sign this petition with over 4 million other Europeans
- Contact your MEP and trilogue reps – saveyourinternet.eu is a good place to start
- Reach out to your national government’s ministry of copyright
- Follow @Fixit_EU on Twitter for updates
- Follow MEP Julia Reda who has been campaigning actively against Articles 11 and 13
- Read more at dontwreckthe.net, an alliance of nonprofits and advocacy organizations fighting the proposed changes and who have come up with very specific revisions that would improve the existing language of Articles 11 and 13.
Special thanks to Cory Doctorow, advisor and former European Director at the Electronic Frontier Foundation and co-editor of Boing Boing, for reviewing this piece.
Damini Satija is an MPA student at Columbia’s School of International and Public Affairs (SIPA) where she is specializing in technology policy and digital governance. She is President of the Digital and Cyber group at SIPA and has a background in tech, working specifically on data and software solutions for the public sector. This past summer she was a Google Public Policy Fellow at Engine Advocacy in Washington D.C.