Politics is full of plot twists and we have witnessed that today during the IMCO Committee vote on its opinion regarding the copyright directive proposal. The new rights for publishers that seemed to be red line for so many Parliamentarians have made their comeback. The upload filtering provisions have been removed—despite some MEPs’ efforts to make them even stronger. If the reform package was actually a coherent vision instead of a wish list of shortsighted interventions, we could be celebrating an entirely different vote.
The upload filter is gone, the e-commerce Directive is intact
In a surprising move, the Committee adopted the EPP proposal to include Article 13 as drafted by LIBE rapporteur Michal Boni into IMCO’s opinion. IMCO rapporteur Catherine Stihler supported these amendments over the compromise she had made with other Parliamentary groups: S&D, ECR, ALDE, GREENS and GUE. Since it was quite clear that the deletion suggested by some Committee Members is not an option for this article, it is seems like one of the best possible outcomes that MEP Boni’s proposal has been picked up by IMCO.
Rapporteur Boni’s take on how platforms should cooperate with rightholders offers a rational distinction between entities falling under the scope of Article 13 and those protected by the e-commerce directive exemptions. It also steers clear of content recognition and technological measures as the go-to solutions for shaping that cooperation regarding MEP Stihler’s compromise amendment.
Red line? What red line?
The big surprise of the IMCO vote is the U-turn it took on the issue of new rights for press publishers (a.k.a “the link tax”). Rapporteur Stihler proposal to delete all of Article 11 had gained some traction in the Committee, which resulted in about a dozen other IMCO Parliamentarians also tabling provisions to remove it. In the vote, however, the amendments to delete were almost entirely rejected. The Commission’s version of Article 11 has been adopted with some tweaks: hyperlinking would not fall under the new right, and the new law would not be applied retroactively.
We were hoping that the Committee on Civil Liberties, Justice and Home Affairs (LIBE) rapporteur Michal Boni would make use of the Committee mandate to suggest deletion of entire article 13 from the proposed Directive on Copyright in Digital Single Market. That didn’t happen. The justification of the report reflects a hope that the idea to regulate agreements between platforms and rightholders can be sustained while respecting fundamental rights of users. But do the LIBE amendments meet that goal?
Looking beyond technology
The very good news is that Rapporteur Boni proposes to remove content recognition and all references to the use of technology as a default option from the directive. MEP Boni also explicitly says in his report that the implementation of the agreements should not impose any general monitoring obligations.
Here the report builds nicely on theapproach paved by the JURI’s rapporteur MEP Comodini in her report. The removal of references to technology opens the path to looking for a variety of solutions in negotiating the division of revenues between service providers and rightholders. No doubt that technologies will be employed to verify if content is uploaded legally. But the EU copyright legislation should not require a direct connection between the business discussion on who the revenue should go to and the surveillance of users uploading stuff on a platform. Continue reading
The concept of content filtering has been making quite a career. Not only did it land in the copyright directive proposal, but also it has been introduced into the draft of the Audiovisual Media Service Directive (AVMSD) that is currently making its way through the European Parliament. In the context of the AVMSD, filtering of uploads by video-sharing platforms would serve to prevent legal audiovisual content that could harm children. As important as protecting children may be, the CULT Committee has just voted against that idea. This was the right thing to do.
A seemingly quick solution to filter whatever the decision makers don’t want users to see is a very dangerous tool in any context. It is an arbitrary approach to the flow if information online and as such it can be used as a censorship machine. This “automatized conscience” will operate on a very abstract definitions of content that could impair children’s “physical, mental or moral development” or incitement to terrorism, violence and hatred. Humans often argue about what constitutes such incitement with many cases finding their finale in court. How could we trust algorithms with such a dispute?
Fortunately, 17 members of the CULT Committee understood that. Nine of them either do not see the danger or have an unwavering faith in the potency of technology to solve complex societal problems. Hopefully, the AVMSD debate helped CULT Committee see both the danger and the pointlessness of content filtering and they will take a similar decision for a better copyright. After all, in the context of copyright, putting the interest of rightholders before the interest of the public is an even worse reason to employ algorithms as censors.
Now that most of the committees have published their draft opinions on the Commission’s Directive on Copyright in the Digital Single Market, it’s time to hear their members presenting their initial views. JURI hosted a meeting on 22 March where MEPs voiced a range of opinions on various aspects of the copyright reform proposal. The divide between the MEPs seems to run deeper than mere disagreements on definitions; instead, they underscore a fundamental schism in the MEPs’ understanding of the world we live in.
Some MEPs reacted to the copyright reform proposal using a 20th century ordering of the world, where mass-scale creative industries emerged and eventually were consolidated. For MEPS such as Jean-Marie Cavada (ALDE, France) or Angelika Niebler (EPP, Germany) the world has not changed all that much in terms of where important stuff happens. Cavada and Niebler think publishers and other rightsholders produce all the real value, while the internet and new sharing technologies is like a portable TV that that main purpose of is to constantly rip them off.
Seeing the world like that, it’s no wonder that they mostly approve of the European Commission’s original proposal, and oppose reforms that champion users’ rights, which for the most part they see as legitimizing tech-enabled theft. There is no coincidence that many of those creative industry backers are from France and Germany, countries that built their considerable entertainment industries well before the digital era.
Again we are witnessing an attempt to make the Frankenstein’s monster, article 13, a bit prettier as the Legal Affairs Committee’s (JURI) report has been officially published. Instead of killing it altogether with its recitals, MEP Therese Comodini Cachia tries to save the numbering of the proposal and at the same time to diffuse the bomb the European Commission set against users’ rights.
Filtering is kind of gone
The reading of the proposed article 13 text leaves no doubt that the intent is to remove the upload filter. The reference to “preventing the availability” of content uploaded by users who have no ownership over it is gone from article 13 paragraph 1. The emphasis is on effective and proportionate measures that the information society service providers need to take to ensure that the agreements they conclude with rightsholders are functioning well.
At first sight the amendments proposed for article 13 seem good. What kind of measures should be carried out is left open. It can be really anything that parties decide would work for them, be it some compensation or a share in the revenues the content users upload generates when there are ads on display. Unfortunately, looking into the recitals, it gets more complicated. Ms Comodini proposes no rewrite to recital 39 that would change the fact that the content recognition remains a go-to technology in terms of assessing the rights to uploaded content.
What are the consequences of that? It means that effectively the ISSPs and rightsholders are not encouraged to look beyond tech solutions to address any perceived disparities of income. Rather, the directive legally validates the existing market practice of employing tech such as Content ID to sort out ownership of the content. With her concept Ms Comodini may have closed the gate to filtering uploads but she left the path leading to it basically intact.
Another consequence is that if article 13 had ever meant to make Youtube weaker, by constant relying on tech solutions in settling human disputes, it equips the tech giant with an enormous competitive advantage. After all they already have Content ID.
It is great that ITRE Rapporteur Zdzisław Krasnodębski joined IMCO Rapporteur Catherine Stihler in thinking that the right to read is the right to mine. As we explained in detail, his draft proposal opens up the TDM exception to anyone and makes sure any safeguarding measures won’t stand in the way of applying the technology. As progressive as it is, however, the fact that ITRE’s Rapporteur focused only on TDM and proposed a minor tweak of article 14 is also a statement. What is not mentioned is as significant as the changes that are proposed.
The fact that the most controversial articles are not a subject to any improvement by the ITRE draft opinion may of course indicate how the Rapporteur perceives the Commission’s mandate to propose input on copyright. Naturally, the TDM exception would provide an enormous opportunity for the European industry to expand their R&D without looking for an academic partner to benefit from the exception. But is that really all there is in the directive proposal that could benefit the realms of Industry, Research and Energy?
Better education makes better economy
In the information economy, modern accessible education is a cornerstone. Now that across all industries there is an enormous demand for workers that can keep up with developments in technology and knowledge, lifelong learning becomes an inseparable element of any professional career.
Wouldn’t we all want to know how the copyright reform proposal gained its current shape? Was it at a roundtable of sages? Did someone knock Commissioner Günther Oettinger’s head and the proposal sprung out? We have filed an access to documents request (FOIA) to find out what the EC legal services’ opinion was in this process.
Chances are we will not have full clarity on the evidence that substantiated the proposed directive on copyright in the digital single market. After European Digital Rights filed a request to access the correspondence between Commissioners, cabinets and services on the proposal for a copyright Directive in October 2016, the recent response was that there is 1 (ONE!) email that meets the criteria. It would seem that the Commission have a strong oral tradition and excellent collective memory if this is really the only recorded evidence to attest to the quality of the process.
To make things worse, the email cannot be revealed because “the disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure”. We believe that the public interest in knowing how absurdities such as new rights for publishers or the upload filter found its way to the proposal is indeed overriding the secrecy of the only email that has ever been exchanged on the topic. Obviously EDRi has filed a confirmatory application to review the handling of the request that is yet to be considered by the EC.
To learn more about the legality of the most problematic parts of the proposal, Centrum Cyfrowe, COMMUNIA member, filed a FOIA to access the European Commission’s legal service opinion(s) on the drafts of the proposal on February 13, 2017. With the two processes, the Commission has a chance to make the right choice and spill the beans on their intel and sources. If the European Commission decides otherwise, we will be left wondering if the proposal is a result of some intense industry lobbying, or perhaps of unpreparedness of DG Connect to properly address challenges of the 21st century.
Refusal will give a bad name to the EC legal services that could have let out a really bad piece of lawmaking that contradicts existing regulation as well as the EU case law. Moreover, the Commission will prove again that it is one of the least transparent European institutions while keeping its finger on the trigger of change that will shape our digital lives for many years to come.
Coincidence has written a postscript to our yesterday’s post Good news! Quality journalism doesn’t need the snippet levy. A recent tariff on how much linking will be charged for revealed by the Spanish Reproduction Rights Centre (CEDRO) shows that publishers’ appetites are great and likely to ruin online access to content we need and like.
CEDRO decided that per each active user per day it wants to charge a daily rate of € 0,05044854. We can endlessly discuss if this arbitrary rate is a lot or not much per user-day. But this is where the economy of scale of 5 cents is pivotal – Menéame, a Spanish aggregator has an average of 139 thousand unique users accessing their site per day. So 5 cents scales up to a quite substantial 7+ thousand euro per day and that to an astronomic 2,56 million euro per year.
The problem is that this is 20 times as much as Menéame’s annual turnover (125 thousand euro). In short, a piece of legislation aimed at Google chokeholds smaller enterprises while reinforcing the giant’s dominant position.
What is perhaps worse, we have landed in this mess based on false assumptions: whatever affects the traffic to news content (could it be the decreasing quality of the news and proliferation of meaningless clickbait? Hmmm…) it is not the aggregators. As research shows they in fact assist users in optimizing their attention economy and in result sustain the traffic.
Based on these false assumptions the publishers want to racket sums that have nothing to do with the economic situation or the scale of operations of the aggregators in a strive to compensate an imaginary loss by ripping off those who in fact help news readership. By doing so the rightsholders resemble thugs that raid a bar and extort payments only because the bar is in their neighborhood.
Say no to the racketeer tax in EU!
Now, thanks to the European Commission’s copyright directive proposal we are facing the danger of that mess spilling all over Europe. If you feel you’d like to do something about this, write an email to Members of the European Parliament from your country to kick off article 11 from the copyright directive proposal. There is still time to stop this nonsense.
As we vocally oppose the proposed new rights for press publishers, we’re often asked what could be done instead to ensure the quality of journalism in the digital era. The good news is there are examples of how good journalism could be assisted. The even better news is that these solutions do not require such level of protectionism as the European Commission seem to think they do.
Scaling up a horrible idea
To recap the issue: the new rights for publishers, called also the ancillary copyright or the snippet levy, would require online services to pay for linking to articles that are up to twenty years old. Almost every news link with an explanatory extract (a snippet) placed in a search engine would be subject to a fee. This measure included in the proposed directive on copyright in the digital single market, despite a spectacular failure of similar mechanisms in Spain in Germany, is heavily backed by powerful media outlets. Their argument: aggregators such as Google news make money on ads placed by the content they aggregate, while the newspapers suffer from the disruption technology brought.
In January 2017 we know better than ever that we need quality journalism as one of driving forces behind democratic debate and choices people make casting election ballots. And we all know it costs. But the assumption that the snippet levy will work if enough countries are bullied into adopting it through a European directive is the textbook example of insanity – it is employing the method that had already failed and expecting a different result. Instead, we should be looking into other European countries where non-regulatory measures improving business models are adopted, and search for an inspiration from places where that level of public interventionism does not happen and publishers have to adapt to the digital age in other ways.
Today we are publishing the fifth in a series of position papers dealing with the various parts of the European Commission’s proposal for a Directive on Copyright in the Digital Single Market (the previous papers dealt with the education exception, text and data mining, the press publisher’s right and freedom of panorama). The paper deals with article 13 of the Commission’s proposal which introduces a filtering obligation on online platforms that allow users to upload content (such as facebook, youtube flickr and many other online services). The proposal fails to establish clear rules for internet users that make it clear how they can share and remix content legally. Instead it introduces a filtering requirement for online platforms that can potentially serve as a censorship machine and will violate users’ fundamental rights and distort the existing legal framework. From our perspective article 13 and the related recitals should be deleted from the proposal (You can download a pdf version of the position paper here).
Position paper: Use of Protected Content by Information Society Service Providers
Article 13 of the European Commission’s proposal for a Directive on Copyright in the Digital Single Market attempts to address the disparity in revenues generated for rightsholders and platforms from online uses of protected content. The proposed article attempts this by introducing an obligation for “Information society service providers that store and provide to the public access to large amounts of works” to filter user uploads. It would also require these providers to set up licensing agreements with rightsholders.
These proposed measures, however, do not address the issue adequately; instead, they violate fundamental rights of users, contradict the E-Commerce Directive, and go against CJEU case law.
The measures proposed in the Commission’s proposal stem from an unbalanced vision of copyright as an issue between rightsholders and ‘infringers’. The proposal chooses to ignore limitations and exceptions to copyright, fundamental freedoms, and existing users’ practices. In addition, the proposal fails to establish clear rules with regard to how citizens can use protected works in transformative ways—such as remixes and other forms of so-called “user-generated content” (UGC). As a result, a system of this kind would greatly restrict the way Europeans create, share, and communicate online.