Post Copyright Reform Global Proposed EU Copyright Directive Poses Risks to Free Expression, Consumer Privacy, and Competition

Learn more about the June 12 EU Day of Action to delete Article 13 at SaveYourInternet.eu.

EU Copyright Directive

On June 20-21, the European Parliament will vote on the European Commission’s update of the Copyright Directive. The Directive aims to modernize the EU’s copyright rules to handle problems posed by the evolving digital world, with the stated goal of creating legislation that will unify Europe’s “Digital Single Market.” It has been the subject of international scrutiny, as European technology policy changes often spark global changes.

The directive is a threat to free speech online worldwide. European digital rights groups are mobilizing against it, scholars are questioning its legality, and academics are warning that it could “threaten open science.” This post examines the two most controversial sections of the copyright directive, Article 11 and 13, and explains why the EU parliament should oppose this directive.

Automated Upload Filtering

Article 13 would mandate internet platforms adopt automated filtering systems in order to identify copyrighted content. These systems would monitor all content uploaded to the internet, including songs, video clips, newspaper articles, and academic papers. Advocates of Article 13 argue that this is an important step in closing the value gap, the difference between what copyright holders make and what they perceive they should make.

But the mandate to monitor all uploaded content has serious privacy, freedom of speech, and competition implications. This legislation would change the internet as we know it: Soundcloud, Twitter, and Scribd are just a few examples of user upload services with communities that derive their vibrancy and value from users who feel comfortable uploading their content to reliable services. An adoption of the new directive will put those trusting relationships in jeopardy.

Copyright law is too nuanced for a computer system to adequately understand the subtleties between copyright violations and perfectly legitimate reasons to share copyrighted content, such as adaptations, quotations, and parody. A 2012 EU court case, Sabam v. Netlog, highlights this point. Europe’s highest court found that a similar proposed automated filtering technology could trigger unlawful censorship and harm free speech, which would violate freedom of information principles at the core of a free and fair society.

Another important concern is privacy. By necessity, these systems must have the ability to see exactly what is being posted and exactly who is posting it. In Sabam, the court also found that because these systems would be identifying, analyzing, and processing content which could be linked to specific users, they were in violation of the EU’s Charter of Fundamental Rights.

Entrepreneurs would also be negatively affected. Automated filtering technologies are expensive and unaffordable for startups and mid-level businesses. In 2016 alone Google invested $60 million updating its automated filtering technology, Content ID. And yet, even this program would not meet the threshold necessary for compliance. In practice, this policy would likely entrench the biggest players in the industry while shutting out innovators and potential disruptors who cannot afford to invest in such elaborate systems.

In short, computer systems serving as the internet's police force would be damaging for both consumers and businesses.

The “Link Tax”

Dubbed the “link tax” by critics, Article 11 would fundamentally change the way news is digested on services such as Google News, Twitter, and Facebook, to name just a few. The biggest threat is to the hyperlink. News aggregation services often provide a brief preview of publisher content, such as a headline or the first sentence, as a means of telling the reader what an article, video, or song is about. Even those small lead-ins, used as a hook by publishers to generate views, would be subject to this invasive licensing fee.

A Spanish policy, which similarly required compulsory payments, was passed in 2014. Almost immediately, Google News pulled its service from Spain. Citing the licensing mandate as the reason for its withdrawal, Google noted that its news platform is a free service and thus forcing it to pay publishers was not a sustainable practice. The law was widely considered a failure.

In Germany, the payments were optional. This system also quickly devolved. Citing “overwhelming market power,” publishers largely opted out from paying services with large user bases while requiring the licensing from everyone else. As a result, dominant players, such as Google News, were unaffected by the very tax that sought to target them, while small to mid-level services had to pay the burdensome licensing fees.

These burdensome licensing regulations have been proven to cause market failures. Additionally, as we have explained in another blog post on the current state of the media, allowing only a few pay-to-play services to offer a comprehensive news experience raises antitrust concerns which have serious implications for free expression.

Action Steps

As has been seen with the the EU’s General Data Protection Regulation, EU technology legislation often serves as a linchpin for global policy changes. The world is watching. There are less than two weeks before the European Parliament takes another decisive vote for the future of the internet. Visit SaveYourInternet.eu and SaveTheLink.org to learn more and, if you are European, make your voice heard.