[French translation available at Framablog]

The Article 13 cliffhanger continues. Disagreements between France and Germany over exemptions from the requirement to use upload filters halted progress on finalising the new legislation, and offered hope Article 13’s deep damage to the Internet might be avoided at the last minute. But the two countries appear to have reached a compromise that is arguably worse than the original text. It implies that in practice, even the smallest sites will be forced to seek licences, and accept whatever terms are offered to them. This is a recipe for even more abuse from the copyright industry, and will drive digital startups away from the EU.

But alongside this incredibly foolish proposal from France and Germany, there’s an interesting comment from Luigi Di Maio, the Italian Deputy Prime Minister and Minister of Economic Development (original in Italian), which has been largely overlooked:

The priority is modifying Articles 11 and 13, which deal with the link tax and content filtering. These are hectic days on the Copyright Directive front. The signs coming to us from Brussels are not encouraging, but I am confident one can find a solution that protects the rights of Web users while guaranteeing at the same time the rights of authors.

What’s significant there is the mention of users’ rights. Discussions about them have been conspicuous by their absence most of the time the EU’s Copyright Directive has been under development. That is truly scandalous, and highlights just how one-sided the proposed legislation is. It is all about giving yet more rights to the copyright industry, with no regard for the negative impact on everyone else. That overriding consideration is so extreme that the dire consequences Article 13 will have on the Internet in the EU were first denied, and then ignored.

One of the most obvious manifestations of that indifference to the facts, and contempt for EU citizens, concerns memes. As we explained some months back, it is not true that memes will be unaffected by Article 13, as many politicians have insisted. There is no EU-wide copyright exception for memes: in some countries memes would be covered by some of the existing exceptions, in others not.

Currently, Article 5 of the 2001 Copyright Directive says that “Member States may provide for exceptions or limitations”, including “for the purpose of caricature, parody or pastiche”, which could cover memes, depending on how a judge interpreted it when it came to a court case. If EU politicians cared even the slightest about ordinary users of the Internet, the least they would do would be to make those exceptions mandatory so as to provide a well-defined legal space for memes. This is precisely what MEP Reda proposed in her 2015 report for the European Parliament evaluating the current 2001 Copyright Directive. She wrote:

The parody, caricature & pastiche exception should apply regardless of the derivative work’s purpose. It should not be constrained by a right holder’s copyright, but only by the moral rights of the author.

She also proposed a much broader recognition of users’ rights, allowing them to exploit digital technology, particularly mobile phones, to create new works based on elements from their daily lives – photos, videos, and audio – together with material they encounter on the Internet:

Copyright legislation should not stand in the way of this unprecedented wave of emerging creative expression and should recognise new creators as valid cultural actors and stakeholders.

A truly modern copyright law would embrace this exciting new dimension. For example, Article 29.21 of the Canadian Copyright Act has a wide-ranging exception for user-generated content. Its existence demonstrates that the inclusion of something similar in EU law is not an unreasonable request, and is compatible with international treaties governing copyright. And yet the proposed Copyright Directive ignores this aspect completely – and with it, the needs and aspirations of hundreds of millions of EU citizens whose lives have been enriched through online self-expression. Instead, there has been little more than lip-service to the concerns of this key stakeholder group. Here, for example, in a recent “non-paper” – the very name betrays its marginal nature – the European Commission suggests a tiny concession for users:

the co-legislators could provide that minor uses of content by amateur uploaders should not be automatically blocked… nor trigger the liability of the uploader.

But there is no explanation of how that will happen – by magic, perhaps. Instead of these vague words, we need a concrete exception that recognises the reality of how most people use the Internet these days – to share elements of copyright material for non-commercial purposes, for the entertainment and edification of family and friends.

If it’s too much to hope for a full and proper exception for user-generated content that forward-thinking countries like Canada have introduced, there is an alternative that even timorous lawmakers should be able to accept. Article 10.2 of the Berne Convention, the overarching framework for copyright laws around the world, reads as follows:

It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice.

Why not create a general exception to EU copyright for such “illustrations”, which would apply beyond educational establishments, to general members of the public re-using materials for the limited purpose of “illustrating” a thought or a comment? After all, it could be argued that such a use is, indeed, a new kind of “teaching”, in the sense that it imparts knowledge and opinions about the world, drawing on the possibilities opened up by modern technology. It’s not the best solution, but it’s better than nothing. It would at least show that the European Commission, Member States, and MEPs are aware of the public’s existence, and are prepared to throw a tiny crumb in its general direction.

In fact, for a short while recently, the proposed text for the Copyright Directive included such language in a section on user-generated content. This was initially proposed under the Austrian Presidency in December 2018, asked for by the Germans in their non-paper from January 2019, and initially picked-up by the Romanian Presidency. However, the Romanian Presidency then took it out after complaints from some EU countries (most likely the French). Maybe Italy should get it put back again.

Featured image by epicantus.