26 March 2019
By Matthew
Lesh
Today's approval of the
European Copyright Directive is the end of the internet as we know it
The EU's copyright
directive represents everything that’s wrong with its policymaking process
YouTube have
warned that they would have to block videos viewed 90 billion times a month in
Europe because of uncertain copyright
The European Parliament’s approval
of the Copyright Directive today is the end of the internet as we know it. This
new regulation creates substantial new controls on what we can share online
which threaten freedom of expression, undermine creativity, and cement the
dominance of technology giants.
The Copyright Directive will
create two internets. The first, a heavily censored version for European users,
including filters to prevent you from uploading content. The second, a free
internet where creativity is encouraged, for everyone else.
The directive represents
everything that’s wrong with the EU’s policymaking process. It was written at a
substantial distance from Europeans, heavily influenced by lobbyists and
national compromises. There is a serious lack of accountability.
The opposition to the
directive was substantial, but it didn’t seem to matter. Over 200 intellectual
property academics have warned that the directive serves “narrow sectional
interests”. Even substantial parts of the European music industry
have raised concerns about the scheme. The Change.org petition opposing the directive has reached
over 5.1 million signatories, the most in the website’s history. Last weekend –
while some Brits were marching to stay in the EU – thousands of Europeans took
to the street in Save the Internet marches.
There are two particularly
concerning sections of the law.
Article 11 prevents news
aggregators, such as search engines and social media companies, from linking
and providing snippets of news articles without paying a “link tax”. This is
clearly absurd. There is no reason why websites should have to pay for what is,
in fact, doing news organisations a favour by linking people to their content.
It is the responsibility of news organisations to monetise their content
through advertisements or paywalls, not attempt to siphon revenues from more
successful technology companies.
In practice, this will
concentrate power in the hands of large news sites, who are most likely to
reach deals to licence the right to link to each other and other sites. A German study found
almost two-thirds of revenue will go to a single publisher, and just 1 per cent
to smaller publishers. It’s therefore no surprise that the multinational
publishing industry lobbyists pushed the directive.
The internet was supposed to
democratise access to information. This article will decrease access to online
news. It will be much simpler for most websites to block links than go through
the effort and expense of reaching licence deals. In 2014, Google shut down Google News in Spain to avoid legal
liability in response to a similar domestic law. It was not worth operating a
free service that brings in little revenue at the cost of paying for links.
Article 13 makes platforms
(like Google, Facebook, Twitter, Tumblr, and web forums) proactively liable for
breaking copyright. It reverses the onus, assuming user-generated content
breaks copyright unless proven otherwise. This undermines the essential
internet principle that platforms should not be legally responsible for the
content produced by their users. Platforms are like libraries. When a book
breaks copyright or is defamatory it is removed. But you do not sue a library
for what authors write, you go straight to the source. While they must remove
content on request if it breaks the law, internet platforms should not be
liable for everything people say.
Copyright is often unclear and
contested. Because they will be legally liable, Facebook, YouTube and other
platforms will need to use automated systems to prevent users posting swaths of
content from images, videos, and music through to humorous GIFs and memes. In
practice, this means new, complex upload filters. This is a serious threat to
freedom of expression and online creativity, which often involves mixing
together various creative sources. It’ll also often result in false positives,
and, to avoid paying fines, substantial limiting of content where copyright is
uncertain.
YouTube have pointed to the example of Despacito by Luis Fonsi and
Daddy Yankee, which has been viewed almost 6 billion times:
“This video contains multiple copyrights,
ranging from sound recording to publishing rights. Although YouTube has
agreements with multiple entities to license and pay for the video, some of the
rights holders remain unknown. That uncertainty means we might have to block videos
like this to avoid liability under article 13. Multiply that risk with the
scale of YouTube, where more than 400 hours of video are uploaded every minute,
and the potential liabilities could be so large that no company could take on
such a financial risk.”
YouTube have warned that they
would block access to videos viewed 90 billion times a month in Europe because
of uncertain copyright.
While this will all be an
expensive pain, Article 13 is a gift to the largest platforms in some ways.
Only the largest companies will be able to afford to comply with the
legislation by creating automated copyright assessment and licencing with
owners. Newer and smaller platforms will not be able to compete. This locks in
place the largest companies.
The fight for internet freedom
does not end here.
First, the directive must now
be transposed into domestic laws. If Britain leaves the EU without a deal,
there is no reason the controversial law should be adopted uncritically or
without a proper domestic debate. If taking back control means anything, it
must mean the ability to diverge from this sort of ridiculous EU overstep.
(Though, notably, this will mean fighting back against British creative
industry which supported the directive.)
Second, there are fights still
to be won. It emerged last weekend that the Conservative Government is planning
a new “Ofweb” regulator – an iPlod. The new regulator would have
the power to enforce a strict online harm code of conduct, and levy huge fines
on social media companies, web forums such as Mumsnet, and even media websites
like The Times and Telegraph which have comments sections.
This is press regulation by the back door. It would create extraordinary system
of censorship by giving the state the power to decide what we can view online.
We may have lost this battle,
but the war for a free internet must continue.
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