On Tuesday March 26th, the European Parliament made sweeping changes to EU copyright law, by passing the new Copyright Directive in a 348 to 274 vote. The Copyright Directive has received ample criticism, in particular because of two provisions, commonly referred to as the "link tax" (article 11) and the "upload filter" (article 13).

Article 11 provides copyright protections for news publishers against the re-use of their stories by internet companies. It forces platforms to pay for linking to news sites by creating a non-waivable right to license any links from a for-profit service.

Article 13 greatly increases the responsibility of internet companies to prevent their platforms being used for copyright infringement, and forces the development of content "filters".

These articles - called "a catastrophe for free expression and competition" by the EFF, represent another example of a vote by a European Parliament that seems to misunderstand how the Internet works, and shows blatant disregard for the far-reaching implications this legislation will have for the open Internet, free speech, and the competitive position of European businesses.

Before the final vote on the directive on Tuesday, European Parliament members were able to vote on whether to allow a last set of amendments. If that vote had passed, a separate vote on articles 11 and 13 would have been held, allowing MEPs to vote to remove the controversial clauses from the final directive. It was pretty much the last chance to kill these provisions... and the European Parliament messed it up.

The vote on whether to allow the batch of amendments failed by five votes, 312 to 317. But shortly after, in the European parliament’s official voting record, 13 (!) MEPs asked for their vote to be recorded differently: 10 said they meant to support it, two meant to oppose it, and 1 meant to abstain. The amended voting record can be found here.

Apparently, the voting order was changed last minute, leading to confusion amongst MEPs. If the votes would have been issued as intended by the MEPs, the result would have gone the other way. And just in case you thought that democracy requires that the vote follows the actual intent of the voting parties: wrong. Despite the updated vote record, the result is final and stands.

A very inconvenient truth about the #copyright vote: after corrections of votes (allowed for the record but without changing the outcome of the vote) there would have been a majority for voting for or against 11&13. History is a dime on its side ↘️ (P. 51) https://t.co/S1DhXBcqAo — Marietje Schaake (@MarietjeSchaake) March 26, 2019

To be clear: no vote was held on the specific amendments due to this error, so there is no way to know whether the European Parliament would have voted to remove the controversial provisions. But the thought that these provisions, which in no way serve the interests of European citizens, were let to pass by accident, is mind-boggling, and calls into question the legitimacy of these provisions. Maybe the European Parliament should consider resorting to paper-based voting: clearly, some additional training is required before the MEP's can responsibly use the digital tools that they are so happy to legislate.

Image: https://xkcd.com/