EU Parliament Puts Out Utter Nonsense Defending Copyright Directive

from the oh-come-on dept

The Legislative Affairs Committee (JURI) in the EU Parliament, who are in charge of pushing through the EU Copyright Directive put out a "Q and A" page about the Copyright Directive in the lead up to the next round of trilogue negotiations between the Parliament, the EU Council and the EU Commission. As you may recall, when we left things, everything was at a standstill with no one willing to agree on anything. Some are suggesting even worse proposals than have been seen before. The record labels and movie studios are threatening to drop their support of the bill if the EU actually gives incredibly minor "safe harbors" for internet platforms. The whole thing is a mess, and the easiest thing to do would be to just drop Articles 11 and 13 and focus on cleaning up the rest of the Directive. But that's not what's happening.

Negotiations have continued in the background, and where things stand now, the EU is going to fundamentally change how the internet works and not in a good way. They have basically agreed that internet companies will be liable for what users post -- in direct contradiction of current EU law found in the E-Commerce Directive. This will mean filters will become effectively mandatory (in a bit of hilarious theater, the agreement says it does not require filters... but there is literally no way to comply with the law without filters). Very, very, very, very limited safe harbors are still being negotiated over, and are "at risk" of being dropped altogether. Ditto a provision that will make the rules not apply to smaller platforms. Also, still on the table is a "notice and staydown" proposal that says if something does get through, platforms can never let it through again (how this will handle situations where one copy is infringing and another is non-infringing is ignored entirely).

So, as the push moves into the final rounds, JURI has decided that if it can't win this argument on facts, it's just going to flat out lie to the public. Let's dive in:

The proposed "Directive on copyright in the Digital Single Market" seeks to ensure that artists (especially small ones, for example musicians), and news publishers and journalists benefit from the online world and the internet as they do from the offline world.

What? There are more "small" musicians and journalists (waves hands!) making money today thanks to the internet, and these plans will completely kill the internet for us. There are more people making music today than ever before. Nothing in this bill is designed to actually help musicians or journalists. It is designed to help lock down the internet for a few giant record labels and news publishers.

Currently, due to outdated copyright rules, online platforms and news aggregators are reaping all the rewards while artists, news publishers and journalists see their work circulate freely, at best receiving very little remuneration for it. This makes it very difficult for artists and media professionals to earn a decent living.

This is utter nonsense. The proposal (Article 11) for online journalists (really: publishers) has already been tried in Germany and in Spain, and it failed in both places (in fact, in Spain, a study showed that it did a lot of harm to smaller publications).

As for musicians, it's never been a better time to be a musician. There are all sorts of ways to monetize, including on services like Kickstarter and Patreon, or on Spotify or Apple Music. Building audiences online has helped numerous musicians build up strong followings, and even created new opportunities for touring. There is no evidence at all that "online platforms and news aggregators are reaping all the rewards." That is a complete and total myth. What JURI is really talking about are exactly two platforms: Google News and YouTube. Google News doesn't run any ads in most locations, so it's not "reaping all the benefits," it's sending lots of traffic to news sites. For free. YouTube, meanwhile, is paying out tons of money to artists who choose to put their music on the site, and has already instituted the most advanced filter of its kind to stop infringement (and it's terrible).

So, how exactly do these laws make anything better? Snippet taxes have already been shown not to work, and the one platform that musicians are upset about, already has the most sophisticated filter on the planet, and it still sucks and causes a ton of collateral damage.

Can anyone at JURI explain how any of this helps small musicians and artists in a manner that doesn't involve "and then we wave the magic wand and Google just forks over cash"?

It is important to point out that the draft directive does not create any new rights for artists and journalists. It merely ensures that their existing rights are better enforced.

This is so misleading that it's extremely close to being an outright lie. It does not create any new rights for "artists and journalists." But it absolutely does create massive new rights for "record labels and news publishers." Notice how that's different? This is a pretty amazing scam by JURI, though, to first argue this is about helping artists and journalists, then claiming it creates no new rights for them, while ignoring that it does create those new rights for the gatekeepers who have a long history of screwing over musicians and journalists.

Nor does the draft directive create new obligations for online platforms or news aggregators. It merely ensures that existing obligations are better respected.

This is an outright lie. It creates massive new obligations for online platforms -- including having to license works that their users upload (which has never been required before) or to install expensive, faulty, censorship filters. There is nothing in there about "better respecting obligations." It is creating huge new obligations. Obligations that will be impossible for nearly every internet platform to meet.

What is currently legal and permitted to share will remain legal and permitted to share.

This, too, is incredibly malicious and deceptive. Yes, what is currently legal for users to share will remain legal. But no online platform will allow for it, because of the massive legal liabilities created by this Directive.

Notice how this JURI defense of Articles 11 and 13 keep shifting who they're talking about. There are multiple parties at stake here: end users, content creators, the legacy middlemen (publishers, record labels, film studios, etc.), and internet platforms. The Q&A conveniently keeps switching between them to try to make points about one while pretending it's debunking claims about others. People are concerned about it creating new rights? Just say it doesn't for artists and journalists (ignoring that it is creating those rights for publishers and labels). People are concerned about being able to share memes? Just say those things are still legal (ignoring that platforms will be required to block them all or face crippling fines).

The draft directive intends to oblige giant internet platforms and news aggregators (like YouTube or GoogleNews) to pay content creators (artists/musicians/actors and journalists) what they truly owe them;

Hey JURI: Literally two sentences earlier you insisted there were no new obligations for online platforms or news aggregators. Then two sentences later you flat out say that the directive "intends to oblige giant internet platforms" to do something they haven't done before. YOUR OWN DEBUNKING DEBUNKS ITSELF.

Furthermore "pay content creators what they truly owe them"? According to whom? And, again, with Article 11 we already know that it created no new revenue in Spain and Germany, so why lie and pretend this will make any difference there?

No new rights or obligations are being created.

Guys. Literally in the previous sentence you admitted to new obligations on internet giants. Remember that? Who is writing this propaganda?

The draft directive does not target the ordinary user.

There's that switcheroo again. Of course it doesn't target the ordinary user. It just will have a massive impact on the internet they rely on for all kinds of community and conversation.

By contrast, the draft directive will impact large online platforms and news aggregators like Google's YouTube, Google News or Facebook, making it essential for them to correctly remunerate artists and journalists whose work they monetise

And it will do this by stopping "ordinary users" from sharing the kind of content they're used to sharing. This is such an obnoxiously disingenuous tap dance by JURI. EU Citizens should be up in arms about this.

Large online platforms and news aggregators will have more reason than currently is the case to strike fair remuneration (licensing) agreements with artists and media houses who would have identified themselves beforehand as the owners of a piece of work.

Why? There is nothing in the directive that says that. Most platforms will have less incentive to do anything in the EU at all.

A platform or news aggregator will be further incentivised to strike such agreements because, in the absence of them, it would be directly liable if it hosts a piece of work with an unpaid licence fee.

Right. That's why it will censor the fuck out of their platforms. Because you are putting new obligations on those platforms, something you keep denying (while admitting it in the next breath).

The expectation is that the draft directive will push the online platforms/news aggregators to finally roll out a policy to fairly remunerate all those from whose work they make their money.

Again, this has been tried with Article 11. And it didn't work. Why is there this expectation that something you tried twice already and failed with will magically work the third time?

Freedom on the internet, as in the real world, will continue to exist as long as the exercise of this freedom does not restrict the rights of others, or is illegal. This means that a user will be able to continue uploading content to internet platforms and that these platforms/news aggregators will be able to continue hosting such uploads, as long as the platforms respect the creators’ right to fair remuneration.

Except that "fair remuneration" is a concept that you are making up. There is already fair remuneration. That's why more people are making more money from music today than ever before. It's why my own damn company exists. "Fair" remuneration is what the market says is fair. What this is attempting to do is not "fair" at all.

Currently, the online platforms/news aggregators remunerate creators on a voluntary basis and only to a very limited degree.

WHAT?!? This is utter nonsense, and if folks running JURI believe this, they are far more disconnected from reality than before. It is not at all "voluntary." All of the big platforms pay as required by law already. They have negotiated contracts and they all work to block infringing content.

The draft directive will not be the source of censorship. By increasing legal liability, the draft directive will increase pressure on internet platforms/news aggregators to conclude fair remuneration deals with the creators of work through which the platforms make money. This is not censorship.

This, again, is nonsense. Yes, it is censorship. Anyone who claims that "increased pressure" on platforms by making them liable for content on those platforms doesn't lead to censorship knows literally nothing about how online intermediary liability works, and all of the censorship it has already created. Again, JURI doesn't know what it's talking about or is lying. This is bad.

The draft directive sets a goal to be achieved - An online platform/news aggregator must not earn money from material created by people without compensating them. Therefore, a platform/news aggregator is legally liable if there is content on its site for which it has not properly paid the creator. This means that those whose work is used illegally can sue the platform/news aggregator. The draft directive however does not specify or list what tools, human resources or infrastructure may be needed to prevent unremunerated material appearing on the site. There is therefore no requirement for upload filters.

Once again, this is utter bullshit. You can't let anything infringing on your platform... but we don't say you need to use a filter. Um. How do you block infringing content if you don't have a filter? Who knows? It's "up to you."

However, if large platforms/news aggregators do not come up with any innovative solutions, they may end up opting for filters. Such filters are already used by the big companies!

Wait. Earlier in this Q&A you said that this was all about getting the large platforms to meet these new obligations. Now you... point to the fact that they already are as proof that... there's no new obligation? What? And... if I'm reading this correctly, you make it sound like this is actually targeting smaller platforms that don't have these filters. And, yet you expect them to come up with magical mystical "innovative solutions" if they don't want to filter.

Oh, and here's the real kicker:

The criticism that these sometimes filter out legitimate content may at times be valid. However, this criticism should be directed towards the platforms/news aggregators designing and implementing them, not to the legislator who is setting out a goal to be achieved

Got that? We're demanding that companies do the impossible, even though the most sophisticated attempt at this already shows that it's impossible, don't blame us, the regulators, for demanding the impossible. We're just "setting out a goal to be achieved." What kind of regulator thinks it's appropriate to require the impossible, and, when people point out it's impossible, to shrug your shoulders and blame those who can't achieve the impossible?

A meme falls under the generic rights of ‘citation/quotation’ and ‘parody’. The citation and parody rights are not covered by the draft directive. The draft directive deals with the liability of platforms for works protected by copyright.

This is more disingenuous nonsense. There is no way for a filter or any other magical solution to determine that something is a meme or parody. It will get blocked. There are no exceptions in the directive for "citation/quotation." Indeed, the latest draft still has the possibility of "notice and staydown," meaning that even if it was used for parody of "citation/quotation" platforms wouldn't be allowed to host it without facing massive liability (or licensing work that legally doesn't need to be licensed).

The draft directive has been the subject of intense campaigning. Indeed, some statistics inside the European Parliament show that MEPs have rarely or even never been subject to a similar degree of lobbying before (such as telephone calls, emails etc.). The companies to be most affected by the directive have multi-billion dollar yearly revenues (for example Google’s revenue for 2017 was $110 billion and Facebook’s was $40.7 billion). Such wide-ranging campaigning generally does lead to impressive claims snowballing; there are claims that the draft directive risks “breaking the internet", or "killing the internet". Since the draft directive does not confer any new rights on creators, nor impose new obligations on internet platforms/news aggregators, such claims seem excessive.

This is also bullshit. We went through the stats ourselves last month, and it showed that over 80% of the lobbying on the Copyright Directive came from legacy copyright industries such as the big entertainment companies and publishers. To claim that the pushback on these plans is due to an aggressive lobbying campaign from Google and Facebook is pure propaganda with no basis in reality. The public is pissed because the public knows how they use the internet, and they know what this law will do to their ability to use it the way they want.

Although the draft directive is aimed at helping all creators have a stronger bargaining position on how their work is used by online platforms, the main beneficiaries will be the smaller players. Larger players often have law firms to safeguard their rights, whereas smaller ones currently have little means to support them.

The smaller players only exist because of the open internet. These bills will literally kill smaller internet platforms in Europe too, because it will be impossible to comply, and the fines will be unsustainable. Meanwhile, again, the internet has enabled so many creators to create and make money... and it did so by enabling all of these different platforms that are about to be body slammed by this ridiculous bill pushed for by cynical opportunists and internet-illiterate policy makers.

It has been claimed that the directive will have a profoundly negative impact on the livelihood of hundreds of thousands of people... The contrary is more likely to be the case: the draft directive’s intention is to help provide numerous people with the livelihood they deserve for their work, and which they require to continue creating. The draft directive intends to ensure that more money goes to artists and journalists rather than Google’s shareholders, a transfer of resources that is always beneficial to jobs.

Again, this makes no sense and is literally contrary to what has happened when the Google tax was tried in Spain.

Is Article 11 going to create a tax - to be more precise a tax payable when a news article is shared? No. The EP wants to ensure that some money goes from multi-billion dollar news aggregators to the journalist who has done all the hard work writing up an article. These articles, it should be stressed, often dig up the truth and contribute enormously to upholding a democratic system. This cannot be considered a tax.

Again, this did not ensure that money went from Google to journalists in Germany or Spain, and it says nothing about journalists. If the link tax is paid, then it goes to the publishers, not the journalists doing "all the hard work." In the meantime, some journalists (waves hand!) want sites like Google News and Facebook to promote our stuff. I don't need them to pay me. I want them to drive traffic. It's MY responsibility to figure out how to make money off of that traffic.

Besides if -- as in Spain -- this leads Google News to leave the EU, then how the hell does that "help" journalists?

This entire thing is utter nonsense. It's either outright lies or deceitful misrepresentations. This is a Trumpian level of propaganda and bullshit, being pushed by the EU Parliament on behalf of the legacy copyright industries. The people of the EU should not stand for this kind of thing from their elected officials. Remember, nearly all of the lobbying on this issue has come from one side -- and it's not the side that JURI claims is pushing the narrative. Don't let Hollywood get away with this nonsense.

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Filed Under: article 11, article 13, censorship, copyright, eu copyright directive, eu parliament, filters, google tax, intermediary liability, juri, link tax