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Why the incoming EU copyright law will undermine the free internet

The European Union's proposed reform of copyright law has reached a critical stage as the one of its key legislative measures approaches its European Parliament vote of approval.

The first major update to copyright legislation in almost 20 years, the intention of the Directive on Copyright in the Digital Single Market is to modernise and make it fit for the digital age. But some very problematic provisions have entered the draft text and been recently approved by the European parliamentary legal affairs committee. Which means that the current proposal, with all its problems, has a good chance of becoming law very soon, depending on the final plenary European Parliament vote on July 5.

This is something you should care about

There are many aspects to the EU's current copyright reform package, of which some are unquestionably good ideas. But the copyright directive, specifically, has generated a lot of concern - and public campaigns for action - due to three provisions that will significantly affect the online life of millions of citizens, and not necessarily for the better. These three provisions are the right for press publishers, filtering obligations, and the provision dealing with text and data mining. We have already discussed this last provision, and so will focus here on the other two, more controversial measures.

1. Right for press publishers

Proposed as a means of returning cash generated by social media platforms, which share links and headlines to news articles back to the news organisations that produced the content, the so-called "link tax" would entail that platforms (such as Facebook or Twitter, but also many, many others) would need to pay for a licence in order to be permitted to use published articles and information about news and current events (although a recent amendment seems to exclude its applicability to standalone hyperlinks).

Under current law, journalistic articles are already subject to copyright protection as literary works. If you wish to republish or reproduce an article from a newspaper or magazine, you will need their permission. This protection extends to the headline of the article too, if original enough.

However, facts and data about current events have never been protected by copyright. If a news outlet published an article whose title was a mere description of a current event ("England qualifies to the knock-out phase of the FIFA World-cup 2018"), this is not sufficiently original to warrant copyright protection. It is a straight description of a current event, a fact. There is no creativity in it, compared to the punning headlines commonly found in some newspapers. If such things were protected, it would mean that no other news outlet or blog could report the same fact without the permission of the original publisher - which would no doubt entail payment.

It should appear self-explanatory why any attempt to tax factual reporting on current events is a nonsense. Economically, copyright allows a monopoly on a particular created work. By allowing monopoly rights to be extended over ideas, facts or data on current events the proposed directive is an unjustifiable limit on our fundamental rights to freedom of information - the freedom both to create and deliver information, and the freedom to receive it. Many others are affected too, such as the freedom to conduct a business, and the intellectual property of those who would reuse factual information to create something original.

There is clear evidence on this conclusion leading to unprecedented scientific agreement that restricting the free flow of information in this way would be disastrous.

2. Filtering obligations

Calling this provision a "censorship machine" may perhaps be an exaggeration, but it is undisputed that the proposal intends to make it compulsory for website hosting providers to use filtering software that will check that content being uploaded or hosted is lawful - for example, that it does not appear on any checklist of known copyright material provided by the rights-holders. Paradoxically this means that, among other things, whether a European Union citizen can say something on the internet will often depend on whether it is permitted by content filtering software developed by a US-based company.

Current law: notice and takedown

Under current law, platforms - the organisations that form the online infrastructure through which users interact, such as YouTube, Facebook, Twitter, Amazon, eBay or Instagram - are not liable when their users infringe copyright so long as they don't know about the infringement and, once they are informed, they act quickly to remove it. This process is known globally as notice-and-take down even if there are differences across jurisdictions. This limitation of liability for platforms only lasts as long as they are unaware of the infringing material. The individual responsible for uploading a copyrighted song, video, or product, however, can still be sued for copyright infringement by the authors or more often by the rights-holders who acquired the copyright from authors - media companies, publishers and record labels, for example.

This mechanism is not perfect, and has already attracted criticisms for tilting too much in favour of copyright holders and platforms, and forgetting - as usual - about users' rights. But it has at least so far guaranteed a certain equilibrium between the protection of investment in producing creative content, and the promotion of innovation through sharing it or parts of it online.

In other words the cost of copyright infringement has been spread across the three main players, right holders, platforms and users. Rights-holders such as media companies and publishers inform the platforms such as YouTube or Facebook of infringing content, the platforms take action once they are told, and users are mindful that they are ultimately responsible for what they do and say on the internet.

Proposed: automated filtering software

The proposed copyright directive would shift a much larger share of the responsibility and cost of copyright infringement to the platforms who would have to proactively police what is being uploaded on their servers. This would mean they have strong incentives to be overly restrictive so as to avoid being held liable and fined. But ultimately, again, it is the users and free speech that will bear the brunt - as they will be prevented from posting videos, songs, images and derivatives such as parodies, criticisms, discussions, news reporting, or research, in those cases when they include some unprotected elements of a protected work. Again, the freedom of expression or privacy of a UK or EU citizen will not be judged by a UK or EU court, but by the software developed by a US private company.

Beyond the legal niceties, perhaps the most problematic part of this suggestion is a technological point: the filtering software the law would make mandatory essentially doesn't exist. There is no software that can expertly tell problematic uses of copyright material from allowed uses such as criticism, parody or news reporting, and accurate content recognition is still poor. For example university lectures and conference talks by renown scholars teaching copyright law have been blocked for copyright infringement.

This alone should be enough to demonstrate how poorly thought out and problematic this proposal is. There is sound evidence to show the negative impact this provision would have on fundamental rights - and all for very little benefit in terms of additional protection for rights-holders.

It is true that the independent press and media necessary for a functioning democracy is under enormous financial pressure as readers go online to "free" content. Likewise, internet platforms, largely based outside the EU, often compete on an unfair basis with EU-based players, chiefly due to their dominant positions and tax avoidance. These are problems that require a solution. But the proposed methods in the copyright directive will not fix anything; on the contrary, there is clear evidence that they will break the internet.

[Source: By Thomas Margoni, The Conversation, London, 03Jul18]

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small logoThis document has been published on 14Sep18 by the Equipo Nizkor and Derechos Human Rights. In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.