As we are heading into the final phases of the discussion on article 13 in both the European Parliament and the Council the issue that article 13 has the potential to do substantial damage to the European digital economy is getting more attention from lawmakers. So far the answer to this problem by the proponents of Article 13 is to exempt more and more types of online platforms from the filtering and or licensing requirements established by Article 13. By now the list of services to be excluded contains “Non-for profit online encyclopaedia“, “educational or scientific repositories, where the content is uploaded by the rightholder“, “providers of cloud services for individual use which do not provide access to the public“, “online market places whose main activity is online retail of physical goods” (European Parliament draft), “non-for-profit open source software developing platforms” and “internet access service providers” (Council compromise proposal).
Generally speaking it is a good indication that a policy is bad if there is a need to make a large number of exceptions to prevent it from doing lots of unintended harm. This principle is on full display in the discussion about article 13. As we (and many others) have argued before, article 13 is broken so badly that it cannot be fixed and should be deleted. The key problem with article 13 is that the music industry is employing its old weapon of choice (copyright law) in an attempt to reign in behaviour of a very small group of online platforms that is perceived as problematic by the music industry. By using copyright law as a trigger for the licensing and filtering obligations contained in article 13, the article inevitably effects every other online platform that deals with copyrighted contents (i.e pretty much all online platforms).
It is not surprising that other platforms that operate in completely different markets (like GitHub which has nothing to do with uploading music) have started to realise that article 13 is a threat to their businesses and are demanding to be excluded from the scope of article 13. While excluding such platforms seems like an obvious choice to prevent some of the worst side effects of the provisions contained in article 13, it will not fix the underlying problem: In an age where copyright touches almost every online business model, copyright law is not a suitable regulatory instrument to adjust the bargaining positions of specific industries anymore. In order to make sure that article 13 has no negative side effects it would need to come with a list of exceptions that excludes every single business model that it is not targeted at.
Even if it was possible to draw up such a list, the result would still be hugely problematic as such an approach would simply lock into place the existing situation. Online services and/or business models that have have not been invented yet cannot be added to such a list and, as a result, would be affected by the obligations established by article 13. This would turn article 13 into another barrier to further development of the European Digital Economy and make any new service that so much as touches copyrighted material dependent on the fiat of organised rightsholders.
All of this reconfirms our conviction that article 13 is a bad idea, that there is no way to fix it and that it should be deleted. If the European legislator wants to address what is perceived by some to be an unequal distribution of the value generated from the online use of cultural goods then we need to find better instruments to do so. To prevent unintended harm in other sectors of the digital economy such instruments should be targeted specifically at the types of platforms they are intended to regulate (for example by describing the type of service offered, the specific sorts of copyrighted materials that would need to be licensed or specific elements of the business models in question).
Of course targeting specific companies or business models is tricky, but it is much better than dressing this intention into a set of broad changes to copyright legislation that will cause substantial collateral damage. If EU lawmakers want to prevent a future where Europeans don’t have access to open online platforms anymore, they should reject the urges of the music industry to limit the liability protections for online intermediaries and to further expand the ability of rightsholders to limit how users can express themselves online.