Before the summer, the European Parliament decided to rethink its position on EU copyright reform plans, including upload filters and a “link tax”, after massive protests.

Refusing to address the problems of his proposals in meaningful ways, rapporteur Axel Voss ( EPP ) failed to build broad consensus around an alternative plan. Consequently, over 200 individual proposals for changes were filed. MEPs will vote on all of them on Wednesday, September 12.

Below, I am publishing the alternatives MEPs will choose from. Call your MEP today and urge them to choose one of the options that avoids filtering uploads or restricting links!

Article 13: Upload filters?

Rejected proposal [Link] Platforms are liable for all copyright infringements by users

Platforms must use upload filters

Exceptions for Wikipedia, GitHub and some others EPP group [Download] Would still result in upload filters, but: Narrowed down to platforms that host “significant amounts” of uploads and “promote” them

Exception for small/micro enterprises ALDE group (MEP Cavada) [Download] Would still result in upload filters, but: Focuses on using filtering to prevent repeat uploads of previously-identified infringements

Rightholders are liable for unjustified takedowns

Human, third-party review of complaints MEP Schaake together with individual members of EPP, S&D , ECR & ALDE [Download] When it comes to videos or music , active and commercial platforms are liable for copyright infringements by users

, active and commercial platforms are liable for copyright infringements by users Platforms will be incentivised to filter to avoid liability, but Member States are required to prevent that – how, remains unclear S&D MEPs Wölken, Stihler, Weidenholzer together with individual members [Download] Active platforms must conduct fair license agreements

Platforms must provide rightholders with access to automatically inspect publicly accessible uploads and request either removal or monetisation

and request either removal or monetisation Uploaders have 48 hours to contest removal requests before they are honoured, during which their uploads stay online, but may be removed from search results

No liability, but once identified, all earned revenue must go to rightholders IMCO & LIBE Committees, Greens/EFA group [Download] Active platforms must conduct fair license agreements

Clear distinction between platforms that treat authors unfairly and those who cannot prevent uploads of infringing material, but in no way encourage it

Ban on laws and contracts that prescribe upload filters EFDD & GUE groups Delete Article 13: Make no changes to existing law

Upload filters with limited exceptions remain upload filters: Expensive, yet error-prone censorship infrastructure that will over-block legal posts, because it can’t tell allowed uses of copyrighted material (like parodies) from infringement. The safeguards proposed by Voss and Cavada are not enough to address the concerns raised by academics, internet experts, civil rights defenders and many others.

Limiting the scope of legal liability to music and video hosting sites is a step in the right direction, saving a lot of other platforms (forums, public chats, source code repositories, etc.) from negative consequences.

“Outsourcing” the inspection of published content to rightholders via an API – and with a fair process in place – is an interesting idea, and certainly much better than general liability. However, it would still be challenging for startups to implement.

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Article 11: A “link tax”?

Rejected proposal [Link] Even shortest snippets of news articles (including individual words) must be licensed – such as commonly used in links. EPP group [Download] Like rejected proposal, but: Links are allowed to contain “individual words” of the article ALDE group (MEP Cavada) [Download] Like rejected proposal, but: Exception for “very short excerpts” and factual information MEP Schaake together with individual members of EPP, S&D, ECR & ALDE [Download] Simplify licensing and copyright enforcement for press publishers

and copyright enforcement for press publishers Platforms must honour how (and whether) news sites want their articles to be displayed according to the Robots.txt protocol Greens/EFA group (originally by EPP MEP Comodini) [Download] Simplify licensing and copyright enforcement for press publishers EFDD group Delete Article 11: Make no changes to existing law

With their proposals, Voss and Cavada are finally admitting that my warnings were well-founded, after trying to deny it for so long: The new right established by Article 11 would indeed significantly threaten the hyperlink, a core building block of the internet.

Allowing links to include “individual words” of the linked-to article is almost worse than the rejected text, though: It implies that using the whole title of an article in a link is NOT allowed. That, of course, is common practice on the internet today – and it causes no harm whatsoever to news publishers. Cavada’s exception for “very short excerpts” simply copy/pastes the approach of the failed German neighbouring right, where courts have been debating for five years what “very short” means, without coming to any conclusion. Publishers have lost millions in court costs in the process and innovative news startups have gone out of business. With both of these proposals, most of the criticisms voiced by 169 copyright academics about creating such a new right still stand.

The reasonable alternative remains the so called “presumption rule” that simplifies how press publishers handle copyright issues, without touching your freedom to link.

Forcing platforms to give press publishers full control over how their articles are displayed (using Robots.txt) privileges one interest group over any other for no clear reason, but at least it would avoid the significant collateral damage to the freedom to link that a new exclusive right would cause.

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Article 3: Text and data mining

Rejected proposal [Link] Data mining allowed for research organisations and for the purposes of scientific research only

Member States can voluntarily go further and allow TDM for other groups, if not explicitly reserved Greens/EFA group (originally a proposal for compromise by MEP Voss, later retracted) [Download] Data mining allowed where either… …not explicitly reserved

…conducted for non-profit research by research organisations and cultural heritage institutions

…licenses exist that allow extractions and reproductions MEP Schaake together with individual members of EPP, S&D, ECR & ALDE [Download] Data mining allowed where there is lawful access: “The right to read is the right to mine”

The Text and Data Mining issue has received less public attention – but if left unfixed, it will limit how individuals, journalists, startups and many others can work with data and thwart Europe’s ambitions to become a leader in the AI industry.

While us Greens have always supported “the right to read is the right to mine”, we decided to also introduce MEP Voss’ original compromise proposal, which he later withdrew, because it may have better chances of getting a majority. (If neither of the alternative proposals does, the original text still stands.)

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The “better copyright” package

I’ve tabled several further amendments to fix some bad decisions narrowly made by the Legal Affairs Committee [Download]:

Add a copyright exception for user-generated content (tabled with the ALDE, GUE and EFDD groups as well as over 50 individual MEPs from across the political spectrum) – previously rejected in the Legal Affairs Committee by a single vote Add a copyright exception for freedom of panorama (tabled with GUE and 50 individual MEPs) – previously narrowly rejected in the Legal Affairs Committee Clarify that links aren’t copyright infringement – previously rejected in the Legal Affairs Committee by a single vote Remove the proposed extra copyright for sports event organizers – previously narrowly added by the Legal Affairs Committee Revert the Legal Affairs Committee’s harmful change to Article 6, which currently says that you cannot use a copy made under one copyright exception for another copyright exception. For example, university libraries would not be allowed to use copies of books initially made for preservation purposes for education.

Update 6 September 2018: The full list of amendments is now available here.

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This vote is our best chance to prevent EU copyright reform from causing lasting harm to the open internet. All of you helped earned us this second chance by protesting against upload filters and a link tax before the summer – together, we made history.

Now we must follow through: Call your MEP today and urge them to choose one of the options that avoids filtering uploads or restricting links!

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