The European Union is trying to make its copyright rules fit for the digital age - but the negotiations about the EU Commission's proposal for reforming the EU Copyright Directive are proving difficult: there is still no agreement on controversial key articles, which could have significant consequences for freedom of expression and the way we interact online.

At the same time, a third wave of intense lobbying aimed at MEPs, heads of state and the general public is taking place, which will likely continue to intensify up until the final Parliamentary plenary vote, scheduled for early 2019. Facing off against each other are on one side the cash-rich tech platforms led by Google and tech trade associations, and on the other side, culturally and nationally important collecting societies (organisations created to manage copyright payments), creative industries and publishers that seem to have hyped up anti-US tech sentiment to push through their own lobby goals.

This is the continuation of the battle that took over the European Parliament this summer, where accusations of deceptive and unfair lobbying, including tactics like astroturfing and spambots, played a decisive role. The voices of civil society organisations, small platforms, libraries, academics, citizens and even the UN Special Rapporteur on Freedom of Opinion and Expression were the collateral damage of the dispute between competing big business lobbies. Lobbyists and groups with a vested interest dominated the debate, while citizens’ opinions and interests were crowded out of the discussion.

This lobby battle over copyright is one key example of how aggressive lobbying by competing industries often crowds out other voices and successfully distorts the public debate. Confusion reigned throughout about who was lobbying and for what, once again highlighting the urgent need to reform lobby transparency rules which are not working properly.

Hot summer in the European Parliament

In discussions on copyright there seems to be only one agreement amongst all sides of the argument: speedy technological developments and the borderless nature of the internet have changed the way that citizens consume and interact with copyrighted material. Whether that be streaming TV, downloading music, reading and sharing news online, or remixing content, the current patchwork of EU and national copyright rules are no longer fit to regulate this new era.

Lobbying on copyright has been intense for years, even as Gunther Oettinger, then Commissioner for Digital Economy and Society, led discussions on how to update copyright laws. It became worse once the Commission’s proposal was finally published in September 2016. The text from the Commission contained two highly controversial measures, which have been at the centre of the discussions for the past two years:

Article 11 establishes a ‘neighbouring right’ for press publishers. Also called the ancillary right, while some critics have called it a link tax, this right adds an extra layer to publishers’ copyright of news content. It would expand the current copyright to cover the reproduction of even small parts of online content, including the little snippets that allow users to see the title and first lines of an article before clicking on them (see box 1);

Article 13 makes online services legally liable for unlawfully making content available and explicitly requires such platforms to use content-filtering technology to scan uploads done by users (see box 2).

Once the proposal was published, it was time for the European Parliament to start developing its own position. This work was originally led by Maltese Conservative Member of the European Parliament Therese Comodini, for the Legal Affairs Committee (JURI), with additional input from the Internal Market, Industry, and Culture Committees.

In March 2017, Comodini published her report. Hailed by many as an improvement, Comodini’s proposal suggested deleting the proposed ‘neighbouring right’ for publishers. On Article 13, it heavily reduced the need for content-filtering technology and instead focused on licensing agreements between the online platforms and the rights holders. However before the work was complete Comodini returned to national politics, taking up a seat in the Maltese Parliament.

The Christian Democrat political group (EPP) then nominated Axel Voss MEP to take up her role in the copyright negotiations. This marked a turning point for the Parliament’s position and internal discussions. At the time, Voss reportedly claimed that he would keep working off the version drafted by Comodini, yet he also quickly made clear his disagreement regarding the key questions around Article 11 and 13. Voss already had a reputation in the Parliament as a bulldog, acting on behalf of the publishing industry, for example on the ePrivacy rules which are also being debated right now. At one point, Voss likened his pro-privacy opponents in the Civil Rights (LIBE) Committee to “Iran’s religious watchdog” for their views.

What is Article 11? Article 11 – Protection of press publications concerning digital uses The objective behind creating a ‘neighbouring right’ is clear: to ensure that publishers are compensated by news aggregators such as Google News, or social media platforms such as Facebook, for the advertising revenue they generate with their content. However, there are many points of contention regarding the effectiveness of such an approach, and the potential collateral damage to the way users can access independent news content, as well as to smaller platforms. Similar schemes which were trialled in Spain and Germany were considered a failure. In Germany, the first country to approve such a measure, Google refused to pay and instead chose to stop listing the outlets that did not enter into a direct agreement with it. In Spain, after the measure was approved, Google News simply shut down. Associations for press publishers like the European Newspapers Publishers’ Association (ENPA), European Magazine Media Association and European Publishers’ Council (representing national associations and big players in EU publishing like Axel Springer, Hubert Media etc) now say that creating such a right at the EU level would give them more leverage to force Google News to pay. Academics are sceptical of this claim. For instance, 169 academics pointed out that “there is no indication whatsoever that the proposed right will produce the positive results it is supposed to”. Even worse, they fear that it may in fact lead to “further strengthening the power of media conglomerates and of global platforms to the detriment of smaller players”. This is thus a dangerous gamble, as it essentially adds an extra layer of copyright to a patchwork of rules that might actually make it harder to access and share journalistic content. This criticism is supported by others, including European Research Centres, independent journalists like the Organized Crime and Corruption Reporting Project and the association of smaller outlets, European Innovative Media Publishers. Pirate Party MEP Julia Reda has also raised concerns that depending on how ‘snippet’ is defined, the proposal could affect hyperlinks as they are often accompanied by a small description that allows people to know what they are visiting in advance.

What followed was an intense political and lobby battle that peaked between the July vote in the Legal Affairs Committee and the final vote in plenary in September 2018. By the end, a new report drafted by Voss, which included a full ‘neighbouring right’ for press contents with a five year validity, was adopted. The new proposal from Voss has a minimal exception for the words within links. However, that would still mean that the short snippets we often see online, which include the title of an article and first two lines could be covered by an additional layer of copyright (also known as “ancillary copyright”), making it harder for platforms such as Google News but also reddit and similar ones to offer previews of articles. Back in again, was an Article 13 stronger than Comodini’s, but that does not explicitly mention content filtering technology, instead focusing on the legal liability of online services. Critics argue that in practice, due to the immense amount of content, the liability means filters would still be used.

This is the negotiating position the Parliament is now discussing with the Council.

Accusations of lobbying essential to secure Parliament result

The issue of lobbying, and specifically of deceptive, high-spending lobbying by Google, was hotly debated during the discussion in the Parliament over the summer of 2018, and was likely key in achieving this outcome. In July, for instance, at a press conference on the copyright directive hosted by Axel Voss, along with French S&D MEPs Pervanche Béres and Virginia Roziére, ALDE’s Jean Marie Cavada and the Greens’ Helga Trupel, one of the key issues raised was the intense lobbying undertaken by Google, Facebook and Amazon. In a press release, MEP Voss stated that: “I am very glad that despite the very strong lobbying campaign by the internet giants, there is now a majority in the full house backing the need to protect the principle of fair pay for European creatives.”

This was one of the sticking points during the latter months of the discussion, with a succession of headlines highlighting “The fierce lobby of Gafa against copyright” or “Google funds website that spams for its causes”. Other articles picked up on claims that Google had spent 30 million euros on copyright lobbying (also here).

Yet this does not reflect the full picture of the lobbying that actually took place.

Box 2: What is Article 13? Article 13 - Use of protected content by information society service providers storing and giving access to large amounts of works and other subject-matter uploaded by their users Article 13 has arguably been the most contentious in the Copyright Directive. As per the Commission proposal, this article puts responsibility on the internet service provider (i.e. Google, Facebook, etc, but also smaller players) to ensure that copyrighted content is not shared by its users without licence. Rights holders, collecting societies and creative industries want such provisions adopted to address what they see as the ‘value gap’, the difference between the revenue online services gain from creative content and what the creators are paid. The International Federation of the Phonographic Industry (IFPI), for instance, says that “the Directive’s primary purpose is to level the playing field for right holders and online services who exploit copyright protected works”. Collective societies lobbying seems to mainly target Google’s Youtube. Yet, the key question in this debate has been how users’ content can be monitored for copyright infringements. The volume of work published by users is so immense that the only effective way for online services to guarantee that they are not breaking copyright would be to implement a filter that would “scan” every single piece of content and compare it against a database of copyrighted material. The Commission and Council proposals explicitly require such filtering technology. Critics have pointed out that this sort of filtering machine would stand in the way of freedom of expression online, with fears that algorithms would block even content that is not copyrighted, preventing it from being uploaded and shared. In some EU countries, it could even lead to limits on parody content such as memes, because not all countries have recognised parody exceptions to copyright law. A key concern has also been that algorithms will be unable to recognise subtleties, like context and parody. Do algorithms have a sense of humour? Here also the directive could backfire. As the European Copyright Society, a network of independent academics, has pointed out, a filtering obligation would “privilege large incumbent platforms that have already successfully implemented such measures (such as YouTube), whereas entry to this market for newcomers may become all but impossible. The unforeseen effect of the provision may therefore, be locking in YouTube’s dominance in the EU”. The UN Special Rapporteur on Freedom of Opinion and Expression, David Kaye, also joined the discussion, arguing that laws or rules that demand the filtering of content are “inconsistent with the right to privacy and likely to amount to pre-publication censorship.”, adding that “automated filtering may be ill-equipped to perform assessments of context in the application of complex areas of law, such as copyright”.

But who was actually lobbying the EU institutions on copyright?

One of the easiest ways to see who is lobbying the EU Institutions is to find out who is having meetings with EU civil servants and MEPs. Unfortunately, to this day there is still no overarching rule obliging them to make their full list of meetings available to the public. However, the Juncker Commission has adopted a rule that all Commissioners, cabinet members and director generals are required to publish a list of all of their lobby meetings.

Since November 2014 there were 765 declared encounters between lobbyists and the Commission with “copyright” as a subject Over 93% of these were with corporate interests, but the list of main actors might be quite surprising: the lobbyists with the highest access were in fact not big tech, but the collecting societies, creative industries (including big film and music studios) and press publishers (see Table 1).

The most frequently listed names are: IFPI - Representing recording industry worldwide (37 meetings) whose members include Sony Music and Warner Music, followed by the Federation of European Publishers (27) which represents national associations of book publishers, and GESAC - the European lobby for collecting societies (25), whose members include big EU collecting societies such as PRS for Music, the US giant recording label Universal Music Group International (22), and the Society of Audiovisual Authors (22), which represents national collecting societies.

Of the top 20 lobbyists by meetings, only two represented tech interests – Google, ranking number seven, and one of the trade associations it belongs to, DIGITALEUROPE, ranking 18th – while one sole NGO, the independent consumer organisation BEUC, ranked 12th.

The Parliament unfortunately does not have any rules in place obliging Members of the European Parliament or their staff to divulge their lobby meetings, though some MEPs and groups do so voluntarily, which gives us at least some insight into who was lobbying the Parliament.

Showing laudable practice, for instance, MEP Comodini attached a legislative footprint to her report on copyright. It listed over 100 organisations that she met with to discuss the Parliament’s position on the Copyright Directive (see page 54), but unfortunately the listing does not say how many times she met with each organisation.

Another resource is the list of lobby meetings held by UK Conservative MEPs which has been published since 2009 . In their listing it can also be seen that the collecting societies and publishers again got the greatest amount of access, although naturally there was a clearer national angle. The top 20 lobbyists who met with UK Conservative MEPs is made up almost entirely of big collecting societies (IFPI- representing the recorded industry worldwide, British Recorded Music Industry, PRS for Music) and publishers (European Media Magazine Association, Axel Springer). By comparison, of the big tech companies and their trade associations, four actors are in the top 20 (DIGITALEUROPE, the Computer & Communications Industry Association – CCIA, EdiMA and Google). The list of lobby meetings also reveals a curious meeting with German publisher Hubert Burda, who was accompanied by a former MEP Carole Tongue. Not a single NGO made it to the top 20 organisations met by UK Conservatives on Copyright (see Table 2).

The last resource for meetings data which is publicly available comes from the Green MEPs , whose meetings reflected a better balance of views, a bigger presence of small organisations, and many more NGOs. In spite of this, however, the top 20 still contains eight collecting societies and publishers organisations (see Table 3).

The list from the Green MEPs is particularly interesting because it is regularly updated by them, and it reveals that Google has increased its lobbying on copyright, and indeed counts as one of the actors with the most meetings with the Greens (5 in total). However, three of these took place in November 2018, after the main vote in the Parliament.

Overall, the limited information which is available about lobby meetings shows the intense level of lobbying taking place on the Copyright Directive, but it also interestingly exposes that the biggest lobbies were not in fact big tech companies and their associates, as many headlines claimed, but the publishers, creative industries and collecting societies.

MEPs under intense pressure

One to one lobby meetings are merely one way that influence can take place. Corporate Europe Observatory wrote to MEPs from the Legal Affairs Committee the main committee responsible for the portfolio in the Parliament, to get their impression of the process.

A Cabinet member of MEP Marinho e Pinto, Portuguese MEP from ALDE, for instance, told us that “All parties were extremely active since 2016” and “we got infograms, studies, surveys and invitations for seminars, etc”. However, what they called “the lobbyists against the reform (...) were aggressive as to spam mailboxes with thousands of e-mails per day, hacking Mr. Marinho e Pinto social media as well as the Wikipedia page.” The MEP supported Article 11 and 13 and that put him as the focus for online trolling in Portugal which included having a vulnerability of his wordpress blog being used to send out embarassing tweets from his personal social media account. This is obviously concerning and counter-productive but unlikely the result of a coordinated lobby effort.

According to Pirate Party MEP Julia Reda, who has followed these discussions closely from the beginning, the lobbying by the creative industries and publishers was in her assessment “much more spread out over time, very involved with the proposal from the start and they have a lot of power in terms of connections to the highest level. And the lobbying against the proposal, I think, with a few exceptions of maybe small civil society groups, has been much more concentrated at the end. Some organisations and also some companies, like Github for example, have woken up to the fact that this might create a problem to their business model relatively late in the process, and then were able to activate some of their communities and fans.”

Cabinet members of Green MEP Max Andersson told us that this was the “most intense lobby effort so far” during his mandate and estimated that “leading up to the votes, both the one in JURI in June and the two in the plenary, the contacts were quite frequent. From May to September we estimate that we got over 3,000 emails.”

They also referred us to the torrent of material his office received from publishers, collecting societies and publishers. These included an empty CD, a blank letter and pamphlets claiming that “Culture is under attack”. Europe For Creators also sent a letter entitled ‘Let’s play safe’ which included a condom with the phrase “We love tech giants, we love protection too”!

Europe For Creators is a coalition of national level collecting societies such as PRS for Music and SABAM, which is run by GESAC, the European lobby group of collecting societies. Yet, these pamphlets do not mention anywhere who is behind them, and Europe for Creators is not a registered coalition on the EU lobby transparency register.

Europe For Creators material

One particularly extravagant lobby resource that was sent to MEPs took the form of a full newspaper, with a headline that read “Copyright: the Voice of the Independent Press” (see picture 3). Across its ‘front page’ the bold title “Europe’s independent press needs Article 11” is followed by an enlarged picture of a journalist being shot in Syria. The caption reads:

“AFP reporter Sammy Ketz, hits the ground as a Syrian soldier runs past during sniper fire in the ancient Christian Syrian town of Maalula, on September 18, 2013. Journalists in Syria have been killed by snipers, accused of spying, and kidnapped by gunmen, and with the threats growing, many say the conflict is now too dangerous to cover. Media watchdog Reporters Without Borders (RSF) says at least 25 professional journalists have been killed in the conflict’.

Below the picture is a call to MEPs to “reject any attempt to delete Article 11 from the European Commission’s proposed Copyright Directive”. Inside is an editorial, which is really a lobby letter, signed by 18 European News Agencies, as well as a text from AFP Baghdad Bureau Chief Sammy Ketz (pictured in the emotive image used on the front cover). Ketz’s text appeals to MEPs to support Article 11, directly linking it with his experiences of reporting from the war front and arguing that Article 11 would help to secure revenue so that the media can continue to run expensive foreign news operations.

Copyright: the voice of the independent press

This is a powerful call for support, yet many doubts remain as to whether Article 11 would actually increase revenue for media and thus provide more protection to quality journalism. As mentioned, similar ‘neighbouring rights’ were brought in in Spain and Germany at the domestic level, but they have not led to increased revenue to journalists. In both cases, what was at times called a ‘Google tax’ was actually successfully avoided by Google, but negatively affected the much smaller news aggregators that directly compete with the internet giant. Academics seem unconvinced that the result will be any different at EU level (see Box 1).

Ensuring that independent quality journalism has enough funds to flourish is essential to ensuring the quality of our democracy, and it is necessary to discuss how to achieve this, including supporting alternative media business models, but also redistributive taxation of the tech giants. However, Article 11 as it is drafted does not seem like it will achieve that outcome, and it might even actually lead to the opposite consequence of increasing the power of services like Google News.

Publishers’ power and access

The press publishers have played an important role in the debate on the Copyright Directive from the start. Back in February 2017, Politico Europe (a newspaper owned by Axel Springer publishers) pointed out the role of the German press in pushing for a ‘neighbouring right’, which they claimed had been “aggressively championed” by Gunther Oettinger for two years. The German press played a similarly important role in fighting the exceptions created in the Marrakesh Treaty to increase access for blind and visually impaired people.

From the lobby meetings lists referred to earlier, several actors stand out, including German public-service broadcasters ZDF and ARD and publisher Axel Springer. The latter company, and especially its CEO, Mathias Döpfner, seem to have been crucial in the copyright discussion, as the publishing company is a vocal critic of the power of big US tech (GAFA - Google, Apple, Facebook and Amazon), with whom they compete for the online advertising market.

The news publisher is influential in Germany and Europe. In Berlin, it is close to the governing German Christian Democrats (CDU/CSU), to whom it is linked through party donations but also personal relationships. When the extra ‘neighbouring right’ for publishers was approved in Germany in 2013, Springer quickly made an agreement with Google News to ensure that it wouldn’t be de-listed and thus lose visibility.

In Brussels, Springer plays a very prominent role within the publishers’ associations, such as the European Newspapers Publishers Association, the European Media Magazine Association and the European Publishers Council. The first two associations even share offices with Axel Springer.

Throughout the entire Copyright process in the EU the publisher enjoyed a very high level of access to policy-makers, as a result of its status as a key German publisher and friend of the CDU/CSU. Back in 2016, in a speech for the Federal Association of German Newspaper Publishers, headed of course by Döpfner, Commissioner Oettinger, loudly told the German publishers to get their journalists to stop criticising the Copyright directive.

Springer’s links with the CDU/CSU were also useful when MEP Voss was nominated to take over from Comodini as the lead MEP on copyright. At that time, Voss had a meeting with Oettinger, who by that stage had already moved to a different Commission portfolio but was still following the discussions, and Matthias Döpfner, Springer’s CEO. According to Oettingers briefing notes, at the meeting Döpfner was expected to “raise questions about the Commission’s position regarding Ms Comodini’s draft report”, the one that had deleted the 'neighbouring right', and Oettinger was prepared to say that they continued to expect the same level of ambition from MEPs as the Commission had shown.

A meeting between a Parliament Rapporteur, the Commissioner formerly in charge for a policy issue, and a key lobbyist is highly unusual.

Publishing lobby strategy concentrates on GAFA/Google lobbying

The press publishers were also pioneers in hyping up GAFA lobbying in order to push through their own lobby goals. Already, in the discussions on improving the protection of personal data in ePrivacy, Döpfner had accused Google and Facebook of pushing for higher standards of data privacy just to crush their competition. That claim was easily dismissed by everyone, as it was clear that Facebook was as interested as the publishers in saving its surveillance-based advertising business model and thus opposed a tougher data privacy law.

In the copyright discussion, claims that GAFA, and particularly Google, were behind all opposition to Article 11 and 13 were again a strong message from publishers, and harder to counter. For instance, in the lobby newspaper produced by the news agencies, both the text from AFP’s editor Katz, and the ‘editorial’, mention what they call deceptive lobbying. Katz wrote that the “reform has been fiercely opposed by Facebook and Google, who have campaigned on a complete fabrication: a supposed threat to people’s free access to the internet”. He even declared that “I am convinced that the members of parliament who have been misled by deceptive lobbying now understand that non-paying access to the internet is not at risk.”

How much money did Google actually spend on copyright lobbying?

Over-hyping the level of lobbying from Google, and painting everyone on the other side with the same brush was part of a lobby strategy. As Music:ally, an information website for the music industry, described it:

“From the music side, this week’s lobbying is focused around two points: convincing politicians of Article 13’s necessity on one hand, and criticising Google’s lobbying on the other.”

That same week, immediately before the JURI committee vote, the UK Music Industry body published a press release stating that “figures show Google’s €31m EU lobbying bid” on copyright. UK Music simply took the entire lobby budget declared by Google in 2017, €6 million, and added to that the budgets of all the organisations and think tanks it is a member of, declaring that the “The combined value of Google’s indirect lobbying of the EU amounts to €25.5m”.

This is a highly problematic and flawed interpretation of the Transparency Register. Google’s entire self-declared lobby budget does make it one of the EU’s highest spending lobby groups. However, only a portion of the declared €6 million would likely be spent on copyright, especially as Google is also fighting several other significant lobby battles in the EU (for example on the anti-trust law cases being brought against Android, digital tax, terrorist content, fake news etc). According to available meeting data, it looks like most of Google's lobby meetings were in fact on other issues from the Copyright Directive, so it appears that this is not their priority at the moment.

The €31 million figure also assumes that all the associations and think tanks of which Google is a member focused their entire declared EU lobby spending on copyright in 2017. That would include, for example, BusinessEurope, the EU employers’ lobby, which are not necessarily active on the Copyright Directive, and if they are would only spend a marginal part of their budget on this issue. In most cases these groups (such as Friends of Europe, Konrad Adenauer-Stiftung, Bruegel etc) did little or nothing at all on the Copyright Directive, so these amounts should clearly not be included in the calculations.

Unfortunately, it is almost impossible to know exactly how much money Google did spend on lobbying on copyright. The EU’s lobby transparency rules only oblige lobby groups to declare the entire amount of money spent on influencing the EU institutions in the closed financial year. This means that we will have to wait almost a year to find out exactly how much these groups spent on lobbying the EU in 2018. And even then, lobby groups only have to declare their entire budget without any issue-wise breakdown, so it will be impossible to tell how much any of these groups spent specifically on copyright, or any other issue.

With better EU lobby transparency rules it would be possible to have a properly informed debate. In the US, which has a mandatory lobby transparency system, companies are required to disclose how much they spend on lobbying on specific laws and to report every three months, so the information is up-to-date.

Measures in the field of 'legislative footprint' would also help to clarify what is going on in terms of lobbying on the Copyright Directive. Lobbyists could, for instance, be required to submit policy papers and other lobbying documents to a publicly accessible online database.

Does that mean that Google did not lobby on copyright?

To put it bluntly, no. Of course Google did lobby, but apparently not quite as significantly as those on the other side of the debate implied. Google has a clear interest in stopping or shaping parts of the legislation, as the ‘neighbouring right’ threatens its Google News services and Article 13’s legal liability for platforms would include its subsidiary, Youtube. However, Google (and Facebook) also already use content-filtering technology, and Google has even developed its own Content ID which it could sell to smaller players if they were required to filter content.

Google held a total of 22 meetings with high-level Commission staff specifically on copyright. In 2016, they were already publicly lobbying for a solution to Article 13 that included filtering. See for instance this tweet from Vice-President of the EU Commission Ansip:

“Talking # platforms and # copyright with Caroline Atkinson from @ Google, Content ID – big step towards fighting # piracy.”

Atkinson is the head lobbyist for Google and a former Deputy National Security Advisor for International Economics to former US President Obama.

During the Parliament discussions, Google’s most visible lobby face seems to have been the trade organisations it belongs to. This may have been because both Google and Facebook decided that their unpopularity meant that lobbying in their own name would be counter-productive. One of the most active of these trade associations was EdiMA, which representa online platforms and other platform-related businesses. EdiMA’s board members include representatives of Google, Facebook, Amazon, Mozilla and Oath (formerly Yahoo), among others.

Its director Siada El Ramly told Corporate Europe Observatory that the Copyright Directive is one of the key lobbying issues for EDiMA (alongside others like the New Deal for Consumers and ePrivacy). Their work in the area began under the previous Commission, and they have also lobbied the Commission in recent years as the directive was being discussed.

Towards the Parliament they have taken the approach of building wider outreach, including to key policy-makers, but also coordinated outreach to other potential stakeholders, including discussions attended by organisations like Allied for Startups, ETNO (the telecommunications lobby), EACA (the advertisers lobby), other individual companies like eBay and Bosch, and “the odd time we would have someone from civil society”. According to EDiMA these discussions were “really gathering a plurality of different views with similar concerns. Sometimes not with similar concerns, to share information.” However EDiMA also launched an intense outreach campaign targetting MEPs, initially only those directly involved in the file, but later all 750 MEPs. (See an illustration)

EDiMA may have caught decision-makers’ attention with its public outreach stunts. These included a letter to MEPs with the contents blacked out, which claimed that the introduction of filtering technology as per Article 13 would be equivalent to the military censorship which took place in 1918. This angered at least MEP Marc Joulard who tweeted:

“I received this scandalous letter equating the supporters of #copyright with the censors of the Great War. There are limits to lobbying, exploiting the memory of the dead is a red line. Will we then be called collaborators? More than ever I support Article 13.”

But the public stunts did not end there. Just before the July committee vote, anyone passing the European Parliament in Brussels could not have avoided seeing the vans with strong messages against filtering. These vans kept driving around Place Luxembourg, and were photographed and published by many newspapers as the face of GAFA’s attempts to divert the copyright process. Other stunts included serving filtered coffee, with the motto “Filters for coffee, not the Internet”, and setting up a copyright twitter account which looked for copyright infringement by MEPs and called them out on it, to highlight how frequent copyright infringements are.

Vans from EDIMA

All of these actions were clearly labelled as EdIMA’s, but were in fact designed by the public affairs consultancy Red Flag, which declared receiving at least €100,000 in 2017 for such work. EdiMA itself declared a lobby budget of €300,000 - €399,999 for 2016-2017, but this does not reflect what they actually spent lobbying on copyright so far. Those numbers will be updated only in next year’s lobby declaration, and they will likely increase.

Beyond EdiMA, another very active trade association was lobbying on copyright on Google’s behalf: the Computer and Communications Industry Association (CCIA). This trade association is one the main EU representatives for tech companies like Google, Facebook, Amazon, Uber, eBay and Oath (formerly Yahoo). According to Lobbyfacts data, in 2016 it spent at least €400,000 lobbying the EU.

Copyright is one of the issues that CCIA lobbies on; Integritywatch shows that of the 46 meetings they had with the Commission since 2014, only five of them were explicitly on copyright. But the CCIA’s role in the copyright discussion was more significant because of its participation in, and funding of, the coalition Copyright for Creativity (C4C).

Copyright for Creativity and accusations of ‘astro-turfing’

Copyright for Creativity describes itself as “a broad-based coalition that seeks an informed debate on how copyright can more effectively promote innovation, access, and creativity.” According to its coordinator, Caroline De Cock, the coalition was set up in 2010 in Geneva, and originally connected the tech industry and public libraries, as they had a common goal on the copyright reform discussions.

The coalition was then run by the CCIA itself, up until 2013, when they decided to externalise the coordination due to the workload, but also to change focus from Geneva to Brussels. De Cock, who by then had already started her own lobby consultancy, N-Square consultancy (focused on telecoms and internet issues), was then hired via an open call for consultants .

She has been running the C4C coalition since then, full-time for the past two years. In recent years they have also expanded their reach: the C4C declaration is supported by 42 signatories, most of which are not for profit organisations, public organisations, research bodies and libraries. The declaration is based on the need to to harmonise the exceptions (eg science, research, parody) to copyright at EU level.

According to Lobbyfacts data, in 2017 the coalition spent at least €50,000 lobbying the EU Institutions. De Cock told Corporate Europe Observatory that two thirds of their funding is still provided by CCIA via grants, which Copyright for Creativity has to reapply for annually. She claimed that the applications for these grants did not require sending or coordinating plans with the CCIA. The other funding for the coalition comes from the Open Society Foundation .

This coalition coordinated the Save Your Internet campaign, which brought up the threat of web filters and their potential consequences for freedom of expression. Once the discussion on web filters became more intense, C4C was accused of being an astro-turf organisation for the tech lobby and particularly for Google. For instance, in August, the Frankfurter Allgemeine published a long comment article entitled “Anatomy of a Political Hack” which claimed that “American companies from the internet industry are funding substantial parts of a campaign in Europe to influence EU legislation. The campaign should look like a grass-roots movement to the outside world, but it is only astro-turf.” This long comment piece was authored by Volker Rieck*, the owner of File Defense, a company fighting online piracy, according to Rieck, the company limits "the visibility of works on illegal platforms"* (edited 18 December 2018). He wrote two other opinion pieces in the Frankfurter Allgemeine attacking the NGOs and citizen involvement in the anti-filter discussions, even publishing an English translation on his blog, which was then shared by the Federation of European Publishers and others.

But, the website of C4C and its lobby register entry make explicit their signatories and funders. All members have veto power in the coalition, which of course includes the CCIA, but also the other signatories like the NGOs that have constantly fought against big tech giants on other issues, including the European Digital Rights organisation (EDRi) and the EU’s consumer rights organisation BEUC.

One can certainly criticise the participation of the CCIA in the campaign because it would clearly seek to protect the business interests of its own members, but it is far-fetched to accuse these independent, pro-privacy, pro-digital rights organisations of being pawns of big tech, when they are in fact often their main opponents in the regulatory process on issues from ePrivacy to trade, or how to handle mis-information. Up to this point, the evidence does not back up claims of astro-turfing.

Spambots, astro-turf and DDOs – what does it even mean?

Before the summer vote in the JURI committee, C4C launched an Email Your MEP campaign that provided supporters with the tools to get in touch with their representatives and state why they opposed content-filtering as per Article 13. The campaign was more popular than expected, with tens of thousands of emails being sent.

Harsh words were thrown at the C4C mailing tools, from arguing that they were nothing but spambots, to it being called a denial-of-service attack (DDOS) - a tactic often used by hackers to shut down websites. For example, see again the comment piece which Volker Rieck* penned for the Frankfurter Allgemeine. He wrote that parliamentarians were “being bombarded with emails and calls from allegedly concerned citizens. But the truth is another story”.

Email your MEP campaigns are a common tool used by civil society organisations who mobilise their communities and supporters to exercise their democratic rights to engage with their elected representatives. Identity verification standards vary according to the tool used, but in this case, it seems that the campaign did not require email verification. That means that technically speaking, people could lie and change their identity in those emails.

De Cock explained that when they started the campaign they did not expect that so many people would participate, and so they themselves were surprised by the strength and impact of the campaign. But even then, can it really be labelled a denial of service attack? Such attacks are generally quite hostile, and aim to shut a website down completely. This is a remarkably different objective from that of an Email Your MEP campaign, which aims to ensure that MEPs are aware that there is popular support for certain causes and issues.

Astoundingly, ALDE MEP Jean Marie Cavada even said in an interview:

“After having analyzed the platform from which all emails come, I realized that it does not require a valid email address from the “users” to send emails. Thus, as sometimes we receive dozens of emails per minute, we can conceive that it is actually robots that send all these emails, which luckily makes this movement lose credibility.”

Many MEPs simply wrote back to the senders to confirm their identity. De Cock, for instance, was then forwarded several of these exchanges between MEPs and their constituents. It seems Mr Cavada did not write back to the people who had contacted him.

It is worth noting that PRS for Music also created a tool to email MEPs in advance of the vote, with the call to action: “PRS Member – Take 90 seconds to influence the vote”. This tool did not even include a return address, and yet there were no claims that these emails were sent by bots. It is interesting that C4C seem to have been criticised simply because of the volume of emails, which arguably simply indicates the level of concern from constituents on the issue. However, both the C4C and PRS can be criticised for the loose use of internet tools to email MEPs.

Publishers and collecting societies behind criticism of #SaveYourInternet campaign

Cavada’s interview was published in Netopia, a website and “idea forum” that deserves a second look. This website became very visible during the copyright discussions, especially on social media, as it seemed to be an aggregator of the criticism aimed at those sceptical of the Copyright Directive.

A particularly stark example of their tactics is their work (in collaboration with the previously mentioned Volker Rieck*) to produce an infographic that makes it look as if Google financing was behind the entire #SaveYourInternet campaign, and all the different organisations that were critical of the directive.

Yet, Netopia is itself not an independent website. Its spokesperson is Per Strömbäck, a lobbyist for the Swedish gaming industry, and it is supported by publishers and creative industry lobby groups including the European Publishers Council, the Federation of European Publishers, IFPI and the Motion Picture Association. The list of supporters is visible in Netopia’s website, but it is unclear how much each contribute to it. We do know that at least some of the groups have a keen interest in the website, as the public agenda from the Federation of European Publishers shows that they attend Netopia’s steering group meetings.

It is especially questionable for publishers to support an organisation spreading unsubstantiated claims.

Even though this organisation directly attempts to influence the EU institutions, Netopia is not registered as an EU lobbyist. The lobby firm MSL Brussels does declare the website to be one of its lobby clients. According to MSL's website, Netopia hired them to “enhance the impact of the creative industries [...] among EU institutions and Brussels-based stakeholders.” MSL runs the secretariat of Netopia and put together a range of lobbying activities which they claim were sucessful in increasing Netopia’s profile in EU institutional events and in EU media. MSL even says that the “EU recently adopted legislation that takes into consideration the copyright model supported by the creative industry.” According to MSL’s declaration, Netopia paid them at least €50,000 in 2017.

Corporate Europe Observatory has submitted an alert to the Transparency Register that Netopia should be registered and its membership should be clarified.

Lumping in big industry players like Google with every other critical voice, such as NGOs and activists, and then tarnishing them both, was a successful strategy in this debate. Using this approach, all criticism, regardless of where it came from or what it focused on, could simply be dismissed. This was not just done by marginal figures like Netopia, but was also replicated by the established lobby actors. For example the Chief Executive of collecting society PRS for Music wrote a long blog on Linkedin in July 2018 where he criticised “the internet giants and the consumer organisations they fund” for spreading lies to safeguard GAFA’s profits. One of the pamphlets from Europe For Creators also made a point of stating: "We are people, not bots".

Such comments had an impact on how NGOs and activists were treated. MEP Reda, for instance, recalled that in September during a visit to Brussels by young activists from her party, one participant told her “that he was standing outside the Parliament with a home-made sign against Article 13 and he said some MEPs came up to him and gave him the finger and said he was a tool paid by Google”.

Youtube joins the game, late but with firepower

Ultimately, the Parliament approved Voss’ text which includes ‘neighbouring rights’ for press publishers with a minimal exception covering the words within links, and an Article 13 that places legal liability for users’ copyright infringements on the platforms, but does not explicitly mention content-filtering.

During this period, in the background, the Council of the EU (member states) was also deciding its own negotiating position. It also supported a version of Article 11 that includes ‘neighbouring rights’, but on Article 13 its position includes liability for platforms only if they do not use the best filters available. This seems to be in line with what Google and Facebook actually want (see for instance the emails from Facebook to the European Commission).

Under the Council proposal, Youtube would in fact be able to continue exactly the way it has so far, and it is likely that creators would not receive extra payment. Now that the Parliament and Council are hammering out their differences, Google is increasing its lobbying to fight the Parliament’s version of Article 13, supposedly so that the Council position can be adopted. In an email to MEPs after a lobby dinner held by Youtube, its CEO Susan Wojcicki declared its support for the “goals of Article 13”, that they “want to protect rights holders” but also that there is a need to “provide liability protections for platforms like YouTube”. In the end, the company is clear that it supports using content-filtering technology, like Content ID.

The meeting data also shows that Google started becoming more active after the peak summer lobbying in the Parliament, and they took on more public activities since then. In September, for instance, Youtube/Google arranged for musician Wyclef Jean to address a public hearing in Strasbourg, arguing for the role of platforms in creating income for artists. This hearing was set up by EU40, an unofficial intergroup in the Parliament that brings together MEPs under the age of 40,which is sponsored by companies including Google.

Quite controversially, Youtube is also currently running pop-up ads on Youtube videos and recruiting their own popular Youtubers to make videos alerting their audiences to the dangers of Article 13, including claiming that Article 13’s liability would lead to some videos being blocked. A string of videos claiming that the Copyright Directive would end their channel have since then been made by influential Youtubers with millions of followers, once again stirring up the discussion on the benefits of the Directive.

Now, it has started its public offensive against Article 11, with Google News' Vice President, Richard Gingras, publishing a blog clarifying that their goal is that the directive includes the right for publishers to decide whether "to waive the need for a commercial license for their content." This is being matched with a round of media work where Gingras is refusing to say the company won't close the service if the measure is approved.

We expect that this lobbying battle will continue intensifying all the up until the final plenary vote in early 2019.

Lessons for the EU’s lobby transparency rules This case is a stark example of how the current EU Transparency Register is still failing to bring to light who is lobbying on what, and with what budgets. The fact that even MEPs themselves could be confused by the flurry of lobbying targetting them should be a call to arms to significantly reform our lobby regulation. A few lessons can be learned: We need a genuinely mandatory lobby register based on laws which can force all actors seeking to influence the EU Institutions to declare their activities. In case of non-compliance, these rules should include sanctions.

Registered organisations should be required to update their lobby declarations every quarter and to indicate specifically how much money they dedicate to each individual issue.

NGOs and think thanks should have to declare their main streams of income.

EU civil servants and MEPs should not meet with unregistered lobbyists, and they should list their lobby meetings online.

Beyond that, EU Institutions should adopt ‘legislative footprints’ for each file, which could include lists of everyone they met to discuss that specific issue, but also force lobby organisations to submit their policy papers and other lobbying documents in a central publicly accessible online database. Members of the European Parliament are currently discussing an amendment to the Rules of Procedure that would oblige Rapporteurs, Shadow Rapporteurs and Committee chairs to proactively list their lobby meetings. Corporate Europe Observatory fully supports this change which, had it been in place during the copyright discussions, would have helped to expose who was lobbying MEPs on this complex issue. To learn more about this and other reforms which are required for the EU’s lobby transparency rules, visit the Alliance for Lobby Transparency and Ethics Regulation in the EU (ALTER-EU).

The limits of the EU’s current lobby regulation

The copyright vote clearly illustrates the weaknesses of the EU’s current lobby transparency rules - it is still nearly impossible for citizens to adequately assess who is actually lobbying on what issue and with what budgets, in real time. And now we face additional lobby tactics such as misinformation campaigns based on confusing technical language to discredit authentic criticism, as well as the power of big tech who have their own platforms which they can use to push their own policy goals.

It is clear that these significant business lobbies representing big tech, publishers and collecting societies have completely taken over the public discussion on the merits and pitfalls of the Copyright Directive. As collateral damage of these lobby strategies, the criticism of the Copyright Directive from civil society organisations working on human rights, consumer rights and open access to knowledge, libraries, the inventor of the World Wide Web Tim Berners-Lee, input from academics, the UN Rapporteur for Freedom of Expression, and now almost 4 million citizens who signed a petition against content-filtering, have simply been ignored or dismissed.

Regardless of whether the trilogue’s outcome favours collecting societies, publishers or big platforms, this is not an effective nor accountable policy process, and it seems clear that in the midst of the intense lobby battle the public interest has been all but ignored.

* Edited 18 December 2018 to correct the spelling of the name Volker Rieck and correct the activities performed by the company File Defense Services. The previous version incorrectly stated that it was “a company that helps clients to receive copyright remuneration for their work”.

Volker Rieck contacted Corporate Europe Observatory to state the Article 13 in copyright directive does not, in any way, affect his company and he is “not a benefiter if the directive comes or not”.