By: Claude Ngatchou, Staff Writer
On March 26, 2018, the European Union (“EU”) Parliament voted to approve the controversial amendments to the EU Copyright Directive, Articles 11 and 13.[1] The amendments have sparked outrage from large companies, as well as individuals in the European population, resulting in demonstrations against the amendments.[2] Furthermore, the amendments require large tech companies and news aggregators to share the profit they make with artists and journalists, impose strict liability on copyright infringements by such large companies without providing guidelines for compliance, and may completely change the internet as we know it.[3] The Directive on Copyright in the Digital Single Market, also known as the EU Copyright Directive, is a highly-controversial legislation intended to update online copyright laws, while protecting works of art and journalism by making tech giants pay for the usage of copyrighted material and imposing liability for the violation of the Directive.[4] The EU Parliament has already voted in favor of the Directive, along with the amended versions of Articles 11 and 13. The vote was 438 in favor and 226 against.[5] Final negotiations over the wording of the EU’s controversial Directive has come to a close and the full vote by the EU Parliament has enabled Articles 11 and 13 to become law on March 26, 2018. The final vote passed with a majority of 348 votes to 274.[6]
Article 11, also known as “link tax”, is an attempt to help news outlets generate more money for the content they produce.[7] Often users glance at headlines and short summaries of various news reports instead of reading the article on the main domain. Article 11 seeks to charge a tax on news aggregators like Google, Apple, and Facebook.[8] These sites would pay each time an article is listed outside of the original domain; the tax would pay for the missed clicks. Thus, companies like Google would have to pay for every link they list in their search engine.[9]
Article 13, also known as “upload filter” or “meme ban,” aims to hold large tech companies liable for copyright infringements.[10] Through Article 13, sites that host user-generated content become legally liable for the copyright infringement of its users.[11] For a platform like YouTube, this can occur many, many times. Even though concerns have been raised that Article 13 may result in actual meme bans or an upload filter, the EU Parliament clarified in a press release after the Directive’s approval that Article 13 does not require the usage of filters, and that some upload materials, such as memes or GIFs, are excluded from the Directive’s policies.[12]
However, it failed to explain how tech companies will otherwise be able to detect copyright infringements in order to avoid violating the Directive. Evan Engstrom of the Engine Research Foundation and Nick Feamster of Princeton University outline the limitations of common filtering techniques in their most recent report “The Limits of Filtering.”[13] They conclude that “[s]uch technologies are not sufficient to consistently identify infringement with accuracy….They can only indicate whether a file’s contents match protected content, not whether a particular use of an identified file is an infringement in light of the context within which the media was being used.”[14]
Even though the Directive does not require filters, the consequences of having to pay fines in violation of the law may drive tech companies to extreme measures, such as enlisting the help of human moderators to parse the nuanced differences of millions of social media posts or ban certain images from being uploaded altogether. Google recently conducted an experiment to demonstrate the consequences of Articles 11 and 13. They altered the Google search results to exclude pictures and very limited amounts of preview text to avoid paying fines. The results showed that even in a moderately strict version of the application of Articles 11 and 13, there was a 45% reduction in traffic to news sites.[15] In direct contradiction to the aims of the Directive, users went to non-news sites and social media to get the news they were searching for.[16] In a statement, YouTube said the final version of the EU Copyright Directive was “an improvement” but that it remained “concerned” that Article 13 could have “unintended consequences that may harm Europe’s creative and digital economy.”[17]
Not only are tech companies unhappy with the update. Thevote did not win the approval of the population either. Just days before the vote in 2018, 200,000 people took to the streets of Germany to protest the proposed Directive in favor of a free internet.[18]
With the vote not being celebrated by tech companies and the population, the question of “why” remains. Reasons mentioned in the EU Parliament’s press release are: forcing tech giants to share revenue with artists and journalists; and creating fair pay for artists and journalists while encouraging startups. This is accomplished by requiring that journalists themselves, and not just their publishing houses, benefit from remuneration stemming from the liability requirement. At the same time, the Directive creates stronger negotiating rights for authors and performers, and protects freedom of expression by the inclusion of provisions that ensure that copyright law is observed online without unfairly hampering the freedom of expression that has come to define the internet.[19] “Thus, merely sharing hyperlinks to articles, together with individual words to describe them, will be free of copyright constraints.”[20]
Another important aspect is the history of many European countries’ experiences with dictatorship. In a time and age where large enterprises seem to obtain increasing control of information, Europe seems to be sending out a message. A Belgian MEP and president of ALDE group said:
“[w]e have to make our own internet model in Europe as fast as possible so there is a choice for people and reduce American monopolisation….To do that, GDR was the first step, copyright is the second step and we need other steps in the coming years: creating one regulator and internet standards in Europe….There is no freedom of internet today, the only freedom is to send data to US companies for their profit and that’s all.”[21]
Simon Migliano, head of research at Top 10VPN, explained that while Article 13 may be well intended “[t]he reality is that a generation that has been brought up on memes and video platforms like YouTube is hardly likely to take this unprecedentedly far-reaching legislation lying down. It will not come as a surprise to see millions of European web users turning to anti-censorship tools like VPNs (Virtual Private Networks) in a bid to retain their internet freedoms.”[22]
Now that the vote has passed, EU member states will have two years to draft the regulations as set out by the Directive and incorporate them into domestic laws. There remains much debate over how the member states will implement the Directive into national law.
Sources:
[1]https://www.itpro.co.uk/policy-legislation/32552/what-is-article-13-and-article-11.
[2]https://www.theverge.com/2019/3/21/18275462/eu-copyright-directive-protest-wikipedia-twitch-pornhub-final-vote; https://www.washingtonpost.com/world/europe/thousands-in-germany-protest-planned-eu-internet-reforms/2019/03/23/6fbcbc32-4d7f-11e9-8cfc-2c5d0999c21e_story.html?utm_term=.a777609aef37; https://www.theverge.com/2019/3/21/18275462/eu-copyright-directive-protest-wikipedia-twitch-pornhub-final-vote.
[3]https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52016PC0593&from=EN; http://www.europarl.europa.eu/news/en/press-room/20180906IPR12103/parliament-adopts-its-position-on-digital-copyright-rules.
[4]https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52016PC0593&from=EN.
[5]https://www.theverge.com/2018/9/12/17849868/eu-internet-copyright-reform-article-11-13-approved.
[6]https://www.itpro.co.uk/policy-legislation/32552/what-is-article-13-and-article-11.
[7]https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52016PC0593&from=EN.
[8]Id.
[9]Id.
[10]Id..; http://www.europarl.europa.eu/news/en/press-room/20180906IPR12103/parliament-adopts-its-position-on-digital-copyright-rules.
[11]Id.
[12]http://www.europarl.europa.eu/news/en/headlines/priorities/copyright/20190321IPR32110/european-parliament-approves-new-copyright-rules-for-the-internet.
[13]https://www.engine.is/the-limits-of-filtering.
[14]Id.
[15]https://www.blog.google/around-the-globe/google-europe/now-time-fix-eu-copyright-directive/.
[16]https://www.itpro.co.uk/policy-legislation/32925/article-13-is-back-on-google-bears-bad-news
[17]YouTube Creators (@YTCreators), TWITTER (Mar. 26, 2019, 5:03 AM), https://twitter.com/ytcreators/status/1110512610812801024.
[18]https://www.washingtonpost.com/world/europe/thousands-in-germany-protest-planned-eu-internet-reforms/2019/03/23/6fbcbc32-4d7f-11e9-8cfc-2c5d0999c21e_story.html?utm_term=.a777609aef37. https://www.theverge.com/2019/3/21/18275462/eu-copyright-directive-protest-wikipedia-twitch-pornhub-final-vote.
[19]https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52016PC0593&from=EN. Press release http://www.europarl.europa.eu/news/en/press-room/20180906IPR12103/parliament-adopts-its-position-on-digital-copyright-rules.
[20]Press release http://www.europarl.europa.eu/news/en/press-room/20180906IPR12103/parliament-adopts-its-position-on-digital-copyright-rules
[21]Press release http://www.europarl.europa.eu/news/en/press-room/20180906IPR12103/parliament-adopts-its-position-on-digital-copyright-rules.
[22]Id.
