Twenty-one months of debate are coming to a point. In less than 24 hours, the Legal Affairs Committee of the European Parliament will decide which of these two proposals will go ahead:

The Oettinger/Voss plans for a link tax and censorship machines, which will restrict how you can participate online all for the benefit of large media companies’ special interests. [Download Voss plans as PDF] The common-sense alternatives I am putting to the vote – the Reda compromises, if you will – which fairly balance the interests of different groups without compromising on fundamental rights. [Download the Reda compromises on Article 11 and Article 13 as PDF]

The internet after Voss

On “the internet after Axel Voss”, you will increasingly run into errors when attempting to express yourself on the web just like you do every day today: Chances are, a lot of your links and uploads will be rejected.

“No snippet license found for your region”, “Chance of copyright infringement detected”, “Please wait while we compare your holiday snapshots with all stock photos ever made”, and “Sorry, we’ve had to suspend service to customers in the European Union”: That’s what participating online may come to feel like.

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Article 11: News sites

Commission proposal Voss proposal Reda compromise Even shortest snippets of news articles must be licensed

Applies to links everywhere

20 year term Even shortest snippets of news articles must be licensed

Applies to links on web platforms

5 year term Simplify licensing and copyright enforcement for press publishers (“Presumption rule”)

Today, people make their friends aware of the news of the day and discuss current events by posting links to articles on web platforms. These pointers are routinely illustrated with short snippets meant to inform readers about where they lead: At the very least, they almost always include the article’s headline.

Under the Oettinger/Voss proposals, such snippets would require licensing, including even short and purely factual headlines like “Angela Merkel meets Theresa May”. (This is because a “neighbouring right”, unlike a copyright, does not require originality to protect something. The exception Voss added for “acts of hyperlinking” added does not cover such snippets.)

Platforms unable or unwilling to pay licensing fees would need to shut down or disallow users from sharing links with snippets. Restricting linking, whether the Oettinger way or the Voss way, restricts freedom of speech and access to information online.

Voss himself has conceded that this new right “may not be the best idea”, but is forging ahead regardless. According to 169 independent academics, it “would likely impede the free flow of information that is of vital importance to democracy.”

The Reda compromise: A fair alternative

The “presumption rule” I am bringing to a vote instead would simplify how press publishers handle copyright issues, which today can be complex, because the copyright is held by the individual authors of articles. It establishes the default legal assumption that publishers have the right to license and enforce the copyright of articles they publish. But it does not touch your freedom to link.

This idea was championed by the former JURI rapporteur on this file, MEP Therese Comodini Cachia ( EPP ), and the former Estonian Council presidency. According to independent academic experts it “offers the most workable basis for progress because it was based on wide and transparent consultation, taking into account scientific evidence.”

While funding for quality journalism faces an uncertain future, this is a larger issue not caused by copyright law. Copyright reform cannot bring back lost jobs and ad revenues.

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Article 13: Content sharing platforms

Commission proposal Voss proposal Reda compromise Platforms must deploy upload filters

Applies to any platform that makes “large amounts” of user uploads publicly available Platforms are liable for copyright infringements by users

Platforms must deploy upload filters anyway

Applies to any platform that makes user uploads publicly available, except for Wikipedia, Github and a few others Active platforms must conduct fair license agreements

Ban on upload filters

Today, internet platforms are obligated to take down copyright-infringing works uploaded by their users when they gain knowledge of them. Upload filters turn this concept on its head, requiring platforms to automatically reject uploads that could possibly be infringing before they even appear online.

In a radical move that goes beyond the Commission proposal, Voss proposes making platforms directly liable for copyright infringements by users. In order to comply with the law, they would need to preemptively get licenses for all copyright-protected works in the world – an impossible feat. Accordingly, they need to deploy upload filters (although not even that frees them from liability).

Filters can’t tell allowed uses of copyrighted material like parodies from infringement. Platforms will have a strong incentive to “err on the side of blocking”. Users and independent creators will find many of their legitimate uploads rejected. They will be “guilty until proven innocent”, having to put up a fight to restore each of their works. Meanwhile, companies making false copyright claims will face no punishment. This asymmetry makes the rule vulnerable to abuse by anyone seeking to take certain content offline.

Internet memes, which usually build on prior works, are one striking (but by far not the only) example of popular content that automated filters would be likely to remove.

Direct liability places an impossible burden on small platforms, which may shut down or withdraw from the EU market. Google and Facebook will gain an advantage over the competition because only they have the necessary filtering technology in place today.

Voss has admitted being unable to predict which platforms would fall under his proposal. The inventor of the World Wide Web, Tim Berners-Lee, called upload filters “an unprecedented step towards … automated surveillance and control”. The UN Special Rapporteur on freedom of opinion and expression, David Kaye, expressed concern that the Voss proposal “subjects users to restrictions on freedom of expression” with “prior censorship” inconsistent with the International Covenant on Civil and Political Rights.

The Reda compromise: A fair alternative

My alternative compromise focuses on fair remuneration of authors and rejects upload filters as an unacceptable measure. It clearly distinguishes between platforms that treat authors unfairly and those who cannot prevent uploads of infringing material, but in no way encourage it.

This approach matches the opinion of the Internal Market Committee and the Civil Liberties Committee, where it was first introduced by EPP rapporteur Michał Boni.

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Public interest is snowballing. Videos discussing the reform have accumulated over 5 million views. More than 450,000 people have signed petitions against the Oettinger/Voss plans. Over 50,000 tweets have mentioned #SaveYourInternet in just the past week. The phones in MEPs’ offices won’t stop ringing. Who will MEPs listen to tomorrow?

You have one final chance to influence this particular vote: Pick up your phone right now and use SaveYourInternet to reach out to your MEP. Ask them to support the Reda compromises on Articles 11 and 13. And then check back tomorrow for the results.

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