The European Union’s proposed reform of copyright law has reached a critical stage as the one of its key legislative measures approaches its European Parliament vote of approval.
The first major update to copyright legislation in almost 20 years, the intention of the Directive on Copyright in the Digital Single Market is to modernise and make it fit for the digital age. But some very problematic provisions have entered the draft text and been recently approved by the European parliamentary legal affairs committee. Which means that the current proposal, with all its problems, has a good chance of becoming law very soon, depending on the final plenary European Parliament vote on July 5.
Although the Directive is being sold as an attempt to modernize copyright law in Europe, it is an ill-conceived policy that will hurt consumers and stifle innovation. Here are the top five reasons to oppose this legislation.
1. It will censor online speech
As it stands, Article 13 of the Copyright Directive will mandate internet platforms to implement automated filtering systems in order to identify copyrighted content. By delegating online censorship responsibilities to computer algorithms, this legislation poses serious issues for free speech. Computers do not have the sophistication necessary to understand context and serve as judge, jury, and executioner when it comes to copyright violations.
Copyright law in Europe and the United States understands that the mere use of copyrighted work does not necessarily and automatically amount to a copyright violation. Adaptations, parody, and quotations are all protected speech. These kinds of legal free speech will likely beinadvertently blocked by computer systems, which may be unable to distinguish between a legally permissible derivative work of political satire and an improper reproduction.
This is why everyone from academics to meme creators fears that this proposal could destroy the vibrancy of the modern internet. Computers regulating speech sounds more like the premise of an Orwellian novel than sound policy for a free and fair society.
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2. It will harm competition by solidifying the power of dominant platforms
In 2016 alone, Google invested over $60 million dollars into Content ID, its copyright detection system. And, by the way, not even Google’s Content ID would meet the highly invasive threshold outlined in Article 13. Those financial and technological resources are just unavailable for startups.
User-uploaded content is the beating heart of the current internet landscape. Whether it be a song on Soundcloud or a meme on Twitter, the requirement of an automated filtration system would squash competition and smother the Twitters, Facebooks, and YouTubes of the future. The Copyright Directive will solidify the dominance of internet giants at the cost of users, free expression, and entrepreneurs.
3. It will harm information sharing
Unless reformed, Article 11 of the Copyright Directive will grant press publishers the exclusive rights to their work “so that they may obtain fair and proportionate remuneration for the digital use of their press publications by information society service providers.” In theory, this sounds like a noble aim. In practice, it will impair modern news consumption as we know it and likely backfire, harming those it is designed to help.
Consider the purpose of news aggregation websites: to get users to the information they want or are interested in. Oftentimes, this involves directing users to websites containing relevant information. Today, if someone searched “LeBron James,” one of the first results would be a Cosmopolitan article titled, “Chrissy Teigen Accurately Predicted Lebron James Joining the Lakers, Is a Legend.” Sounds intriguing, right? With this new legislation, search engines would be unable to show that result on their search feed, unless the company negotiated a licensing contract with press publishers. Even something as simple as a preview phrase or sentence would be subject to this licensing requirement.
Anyone who uses the internet knows that these links are a main source of traffic for press publishers. By requiring licensing, the European Union is throwing a wrench into the heart of a mutually beneficial relationship. But lawmakers considering this legislation need not rely on speculative predictions, because similar legislation has been enacted before in Europe and the results speak for themselves.
4. It’s a tried-and-failed approach to helping journalism
Spain and Germany have both enacted legislation reminiscent of Article 11. Both initiatives created market failures and led to worse experiences for consumers, news aggregators, and press publishers alike.
In Spain, compulsory licensing was required. After enacting the legislation despite widespread criticism, the Spanish online news ecosystem quickly crumbled. Almost immediately, Google News in Spain was shut down. Because Google News is a free service that does not generate revenue, Google announced that it was not financially feasible to continue the practice. The law was considered a failure by almost all stakeholders.
In Germany, the licensing was not compulsory. As a result, press publishers were able to pick and choose who they would issue exemptions to. Sold by proponents as a de facto tax on tech titans, this legislation was anything but; unsurprisingly, publishers gave Google a free pass, literally citing the company’s “overwhelming market power.” On the other hand, small to mid-level entrepreneurial businesses were stuck footing the bill.
The German and the Spanish example demonstrate that there are many possible unintended consequences of the implementation of a link-tax. And such a tax may do more to enrich media companies by promoting click-maximizing extreme content rather than quality journalism. To save journalism, policymakers should focus on helping journalists, not the media industry.
5. It threatens innovation
Article 3 threatens non-academic research-oriented uses of text-and-data mining. Essential to the development of both Siri and autonomous cars, text and data mining processes empower startups, journalists, independent researchers, hobbyists, and technology companies with the tools necessary to innovate and make a positive change in a 21st-century economy.
European copyright law is already extremely restrictive in the area of text-and-data mining. While this Directive would carve out copyrighted data usage exemptions for research organizations and specific public-private partnerships, it fails to extend the exemption to commercial entities, independent researchers, journalists, and hobbyists. As a result, start-ups and other actors reliant upon these high-level data analytics methods will be effectively barred from using these tools to create solutions.
Conclusion: The EU should protect free speech and competition online
Given the economic and political relevance of the European Union, it is fundamental that the European Parliament and the European Council amend the Copyright Directive proposal and save freedom of expression online.
Many countries take European legislation as a gold standard, and companies might prefer to simply comply with European law for their global operations. If passed, the Copyright Directive would be both a dangerous example and a harmful global baseline for free speech. We urge the European Parliament to ensure that European copyright legislation represents the interests of the people in Europe and abroad -- and not just profit-maximizing and short-sighted copyright holders.
