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The EU’s disastrous Copyright Reform, explained

The EU’s disastrous Copyright Reform, explained

The EU’s extremely controversial Copyright Reform — which might introduce upload filters, ancillary copyright, and restrictions on text and data mining — will finally go to a vote on June 20.

It’s not certain how the vote will go as members of the European Parliament (MEPs) are still split on key articles of the reform, but whatever the conclusion will be, it’s certain that it’ll greatly affect the future of the internet in the EU and beyond. The result will form the EU Parliament’s stance on copyright and will have huge implications for the final stage of the law making process.

TNW spoke the most fervent supporters and opponents of the bill, both inside and outside the EU to better understand what’s at stake on June 20.

Background — What you need to know about the Copyright Reform

The EU’s current copyright law is from 2001, pretty much predating the real internet era. That’s why everyone involved — businesses, politicians, citizens — agreed that the new Copyright Reform was needed to make it work for the digital age. However, settling on a final version has proven difficult.

The most contested parts of the Copyright Reform are — and always have been articles 11 and 13; the former concerns ancillary copyright and link tax, while the latter deals with uploading filters and censorship machines. Also 3, but for the sake of brevity we won’t be discussing it in this article; you can read about its disastrous effect on AI startups here and here.

Article 11, a.k.a. link tax, would force anyone using snippets of journalistic online content to get a license for the publisher first — essentially outlawing current business models of most aggregators and news apps.

Article 13, a.k.a. censorship machines, will make platforms responsible for monitoring user behavior to stop copyright infringements, but basically means only huge platforms will have the resources to let users comment or share content.

Unlucky number 13

“I think article 13 is the biggest threat to the internet as we know it right now,” Raegan MacDonald, Senior Policy Manager and EU Principal at Mozilla, told TNW. For her, the severity of how badly the articles will impact our internet is in reverse order: 13, 11, and 3.

Article 13 will hold platforms responsible for any content that their users upload, meaning that the platform is liable if there’s copyright infringement. For MacDonald, this threatens the continuation of a healthy and open internet, partly because how broad the definition is in the proposal.

“The way this article is drafted, it kind of assumes that it’s being specific while it’s being extremely broad. So it’s not just about audio/visual content, it’s about all types and forms of copyright. It would be including lots of type of different content, even code sharing.”

MacDonald says because all platforms will be legally liable for the actions of their users, it will force them to create incredibly sophisticated upload filters (or ‘censorship machines’) because it would be the only way to completely prevent possible copyright infringement. MacDonald explains that this is an impossible request.

“Even Content ID — YouTube’s automated filtering that they have made themselves with cutting edge machine learning technology and have honed and improved over the last 11 years — is still utterly imperfect. It’s still incredibly flawed when it comes to perfectly detecting copyright infringement.”

It won’t go unnoticed by people if article 13 ends up becoming law, according to MacDonald. There isn’t a clear fair use clause in the reform so MacDonald fears that parody, satire, and even protest videos at risk as they could get caught up in and removed by such filters. Therefore we might see a lot of legitimate speech censored.

“Article 13 will be the most tangible change for citizens. What the average internet user will see is a lot of changes in the way their open platforms function — on comment sections, on coding platforms, on basically everything where copyrighted content could be,” says MacDonald.

She adds that this will particularly affect smaller platforms who’ll have a harder time meeting the new criteria. But does that mean that the reform might end up mostly benefiting big corporations?

I’d say ‘yes.’ This is one of the most frustrating aspects because in Brussels, in the midst of this ‘techlash’ where policy makers are increasingly concerned about the amount of power and of control that a handful of large platforms have over our data, over the ability of other companies to enter the market, etc.

This copyright reform would give even more control to these handful of platforms. And I think because of the legal liability — that essentially every open platform would now have to shoulder — we’ll get way fewer platforms. The biggest companies, which have an army of lawyers and are able to bear some legal risk, will be the only able to run these type of platforms.

Article 11’s link tax is also worrying because — just as article 13’s censorship machines — it would make market entry and competition more difficult in MacDonald’s mind. Article 11 is also problematic due to its vagueness and the inclusion of a clause that allows member states to make their own adjustments to it.

“I think there would be a whole lot of confusion. I think there’ll probably be a lot of negative implications that we haven’t even thought of right now because the system is so confusing and so ill thought out. There’s no upside to it. I think we’ll see a lot of damaging effects there.”

Article 11 was presented as  a way to help publishers fight back against tech giants and news aggregators, basically forcing companies like Google and Facebook to pay publishers for the content that draws people to their platform. This might seem like lofty goals, but MacDonald believes that copyright is being used in a proxy battle over the internet and that European politicians don’t truly understand what copyright is about:

Copyright is supposed to stimulate and support creators, it’s supposed to encourage innovation, and benefit the public good. But what this proposal and article 11 and 13 in particular has been about is a complete misunderstanding of what copyright does.

It is not supposed to be for a narrow part of an industry to control a handful of platforms, or to regain 100 percent of the market access and distribution of copyrighted content. It is not to turn back the time.

MacDonald is incredibly surprised by the EU’s approach, especially considering that similar legislation utterly failed in Spain and Germany.

Why is the EU going down this path?