The EU Can Still Be Saved From Its Internet-Wrecking Copyright Plan

Public pressure, legal challenges could minimize the damage.

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Sep 12 2018, 8:19pm

Image: Shutterstock

While the European Union voted this week to pass its widely-criticized new Copyright Directive, activists and members of European Parliament say there’s still a chance of keeping the EU from fully implementing the worst parts of the troubling proposal.

The most controversial aspects of the plan remain twofold: Article 11, which would require EU News outlets to pay a “link tax” just to share anything more than “insubstantial” snippets of published content, and Article 13, which would require that EU member countries implement the kind of automated copyright filters that have been a chaotic mess here in the States.

The link tax is seen by critics as an attempt by some brick and mortar publishers to generate undeserved revenue in the wake of their failure to adapt to the internet era. Such efforts haven’t worked when attempted overseas, and open the doors to publishers charging sky high rates simply to quote content—or prohibiting quoting of their content entirely.

The automated copyright filters mandated by Article 13 are even more troubling, in that they foist highly error prone automated copyright systems upon websites that may not be able to afford them. There’s also no checks or penalties for repeated false takedown requests, a problem that has soared to almost comedic heights around the globe.

Other problematic measures were passed as well, including Article 12a, which prohibits sports fans from posting their own photos or videos of sporting events online, while stating that only event “organizers” have the right to do so.

Given many of the “concessions” voted on this week weren’t concessions at all, frustration remains high among activists. Especially given that the European public continues to be an afterthought when it comes to helping to transparently shape the proposal.

“It's impossible not to be furious and dismayed,” author and activist Cory Doctorow said in an email to Motherboard.

“This represented our best chance of changing the language of the Directive for the better. The upcoming trilogues (discussions between national governments and the EU) take place behind closed doors and represent a ten out of ten in terms of difficulty for everyday Europeans to influence,” Doctorow said.

That said, all hope is not lost. While some variant of Article 11 and Article 13 is likely be approved next spring, public pressure could force inclusion of additional safeguards for end users, Member of the European Parliament Julia Reda told me in an email.

“While the overall bill was adopted with a comfortable majority, the outcome was more narrow for the two controversial articles (366:297 and 393:279),” Reda said. “Since the final vote will be close to the next European elections, that leaves open a small chance that massive public protest against these provisions may still convince MEPs to kill the entire bill.”

If passed, individual EU countries will be able to interpret the Directive as they see fit, though Reda believes they will likely steer toward stricter interpretation.

“It's true that member states will have some leeway translating the rules into national law – e.g. they could alter definitions like ‘individual words’ and ‘online content sharing service provider,’” Reda said. “However, service providers operating all across Europe will need to follow the strictest interpretation of the law to be on the safe side.”

For his part, Doctorow sees looming legal challenges as the best hope for preventing the directive’s widespread adoption.

“The real hope for repeal in my opinion is in the courts,” Doctorow said. “There's simply no way this passes EU Constitutional muster—it's generalized filtering and mass surveillance by another name. The fact that they claim to be looking for ‘infringement’ doesn't change that.”

While industry backers of tighter copyright like Germany’s Axel Voss insist this week’s vote was a “good sign for creative industries in Europe,” activists see the push as a ham-fisted, non-transparent attempt to impose draconian, inconsistent, and costly restrictions on free expression online. It’s a point they’ll be making repeatedly ahead of the next vote in the spring.