JURI, European Parliament's legal affairs committee, voted today to approve article 11 of the EU Directive on Copyright in the Digital Single Market, which allows news publishers to seek payment for reuse of snippets of articles, in a narrow 13:12 vote.

It also voted to back a more controversial measure, article 13 of the same directive. This article plugs the user-generated content (UGC) loophole Google-owned YouTube and similar websites enjoy – a loophole that allows Google et al to avoid punishment when their users infringe copyright by tackling repeat offenders.

The committee's decisions are not final, they can be challenged by MEPs, and will be mulled during a plenary session on July 2 before further action is taken.

"The publisher's right will afford publishers the same related rights as already enjoyed by music, film and software program producers, whose collective works are copyrighted in their entirety, giving them the legal entitlement to decide how and where their content is made available," trade association News Media Europe said in a statement welcoming the vote.

The two moves are the final part of a raft of carrot-and-stick changes proposed by the European Commission in 2015, intended to improve the EU's Digital Single Market. The sticks included new exceptions for data mining and requirements for cross-border media portability. A new neighbouring right for publishers emerged last year.

Plugging the UGC loophole was backed by Apple, Spotify, and other tech giants, because the loophole gave outfits like Google a unique advantage. While Apple and Spotify need to sit down and negotiate a licence first before they distribute material, by claiming the UGC exception, Google can maintain an unlicensed supply chain.

Essentially, music trade groups convinced the commission that "takedowns" had to become "staydowns", and the likes of Google should implement filters that proactively scan all user uploads for potentially pirated stuff, and block it, rather than remove media once it has been reported.

YouTube's Content ID system polices uploads on behalf of qualifying copyright owners, however, it is not as comprehensive as what has been proposed: submitted text, video, music, images, and so, which must be filtered by websites.

The proposals sparked opposition online, with pleas to "save the internet", stop the "censoring machines" aka the content filters, and block a link tax*. Critics believe the automatic filtering all of content would present a barrier to the exchange of information and pictures – with some complaining it would "transform the internet into a tool for surveillance and control".

#Article13, the #CensorshipMachines, has been adopted by @EP_Legal with a 15:10 majority. Again: We will take this fight to plenary and still hope to #SaveYourInternet pic.twitter.com/BLguxmHCWs — Julia Reda (@Senficon) June 20, 2018

Yet more critics on the same side feared the tortuous compromises had actually inadvertently opened new safe harbours for Silicon Valley tech giants.

In the build-up to the vote, Allied for Startups interviewed the Google-sponsored** Electronic Frontier Foundation to explain the proposed changes.

Both the EFF and Alliance for Startups [sic] receive Google cash

Small businesses do enjoy a specific carve-out, allowing them to avoid having to implement and deploy content filters.

SMEs were specifically given an exemption, along with source code repositories, trading sites, and encyclopaedias. Click to enlarge (source PDF)

Respected telecomms company Analysys Mason also warned of dangers for SMEs – in an independent report it disclosed was commissioned with a contribution from Google.

The content filtering proposal excludes storage services, not-for-profit source code repositories, trading websites like eBay, and Wikipedia.

Both supporters and critics of article 13 we spoke to this week thought the move clumsy. Platform liabilities are enshrined in the e-commerce directive, which some want revisited, and given that the only major abuser of the UGC loophole critics ever cite is Google, it could be argued that could be dealt with under competition law rather than lumping everyone in with the US ads giant. But here we are. ®

Bootnotes

* The right gives publishers the ability to bring Google to the table to discuss compensation for using article snippets, but it does not compel the giant to give publishers any money. In Germany and Spain, Google responded to complaints of infringement by removing from Google News publishers who dared ask for more gruel. The High Court in England ruled to protect witty headlines such as this one...

... but the ruling was overturned by the Supreme Court.

Read Article 11 – "Protection of press publications concerning digital uses" – and 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" - here.

** The EFF maintains its work is independent of its donors.