Latest EU Copyright Directive Still Demands Internet Companies Wave Magic Wands

from the this-is-not-how-you-regulate dept

The EU Copyright Directive continues to be a total and complete disaster. It's so bad that neither of the two main groups lobbying around it -- the legacy entertainment industry and the big tech companies (with the vast majority of the lobbying coming from the copyright sector) are both unhappy with the bill (though for opposite reasons). And yet, despite all of this, the EU continues to soldier forward with a new proposal and a new draft that still requires that internet companies do the impossible:

The new text by the Romanians requires platforms to prevent uploads of copyrighted works, but requires next to no cooperation from rightholders! How is that supposed to work? #Article13 #SaveYourInternet pic.twitter.com/8LaEoDTiui — Julia Reda (@Senficon) January 17, 2019

The specific suggestions being pushed in the revised Copyright Directive suggests that whoever is putting this stuff together still has no idea what they're talking about. There's an attempt at fixing Article 11 (the snippet tax) not by actually fixing it, but at least making sure that it doesn't apply to "individual words or very short extracts."

The rights referred to in the first subparagraph shall not apply in respect of uses of individual words or very short extracts of a press publication.

What does "very short extracts of a press publication" mean? Well, we'll have to see what courts think of it after extensive litigation, I guess.

More importantly, Article 13 remains an utter mess where they still think that internet companies can just wave a magic wand and suddenly they will stop all infringement without also taking down non-infringing content. The text still pushes for online platforms to have to take out licenses for everything -- and on the question of takedowns of stuff that isn't actually infringing, it just says "don't do that":

The steps taken by the online content sharing service providers should be without prejudice to the application of exceptions and limitations to copyright, including in particular those which guarantee the freedom of expression of users. Users should not be prevented from uploading and making available content that they have produced and that contains existing works or other protected subject matter for specific purposes of illustration or parody when these uses do not create significant harm to rightholders.

First of all... how is that even possible to do these things without running afoul of the other parts of the law? The bureaucrats don't say because they don't understand any of this. Second, this new text basically only says that this applies to "parody" or when the uses "do not create significant harm to rightsholders." But, who determines that? We've seen rightsholders go nuts over all sorts of uses that wouldn't create actual harm (in some cases that would lead to more revenue). All of this is just left up to the idea that internet companies will magically figure out what's okay and what's not.

As the EFF notes in a thorough post, so much of Article 13 is really the EU putting out vague statements about what should be allowed and what should not be allowed, without any notion of how that'll work and then saying you two giant industries figure this mess out. Indeed, as scholar Annemarie Bridy pointed out recently in a wonderful (if terrifying) tweet storm, the entire Article 13 appears to be based on a model of the world that isn't accurate -- one where there are just a few internet companies negotiating with just a few content companies:

It's almost comical (if it weren't tragic) to think policy makers believe that this is all operationally feasible and no big deal. Just negotiate licenses with like a few million rightholders for every possible kind of copyrighted content that users upload, and it'll all be good. — Annemarie Bridy (@AnnemarieBridy) January 15, 2019 And, btw, be sure not to run afoul of any fair dealing exceptions when you deploy your magical technologies. (We'll leave it up to you to make sure they're magical *enough* to reliably sort infringing from safe content, on the fly, across all the types of content you host.) — Annemarie Bridy (@AnnemarieBridy) January 15, 2019 Somehow, in all of this ensuring that no unlicensed copyrighted content from your billion users is ever made available, "special focus should also be given to ensuring that...automated blocking of content" is avoided. 🤔 — Annemarie Bridy (@AnnemarieBridy) January 15, 2019

The whole thing remains an utter disaster that is moving forward even as no one is left who really seems to support it. The public doesn't want this shit. The big entertainment companies are now asking for Article 13 to be set aside. The big internet companies have always been against it. And yet it rolls ever forward, with a bunch of clueless, technically illiterate bureaucrats basically saying "well, if we just say big companies should do this without allowing any negative consequences to happen, surely they can figure it out..." and tossing it over the fence.

This is not how sane policy is made. This is how you fuck up the internet.

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Filed Under: article 11, article 13, censorship, copyright, eu copyright directive, filters, intermediary liability, magic wand, safe harbors