Monday 17 June 2019

EU copyright reform for the digital age edges closer

MEP Axel Voss believes the amended Article 13 can work. Photo: Getty Images
MEP Axel Voss believes the amended Article 13 can work. Photo: Getty Images
Steve Dempsey

Steve Dempsey

It was second time lucky for Europe's new copyright directive this week. The draft legislation designed to update copyright for the online era was initially rejected earlier this year. But thanks to a few tweaks, it got the thumbs up and will now proceed to a final vote next January. Why should anyone care? Well, if you use social media, share links and memes, or care about opaque mechanisms for censorship being baked into online services, the new copyright regime might not be your cup of tea.

The two elements which initially left a bad taste in MEP's mouths were Article 11 and Article 13. Article 11 is designed to ensure publishers are paid by online platforms like Google and Facebook when they link to their stories. It amounts to a tax on links. Given the deep pockets of these big tech platforms, it sounds sensible - especially to publishers who have watched Facebook and Google capture the advertising revenue that used to be theirs. But there's a problem - it doesn't work.

In Germany, for example, where a similar law is in place, there hasn't been a windfall for publishers. Instead, Google has shuttered its news service, startups in the news sector have closed down, and courts have been unable to overcome the legal uncertainties to rule on potential infringements. "What publishers are actually concerned about is that revenues have shifted from publishers to platforms," says Julia Reda, an MEP who has been vocal on copyright reforms. "And that has nothing to do with platforms using content for free, rather the changes in the advertising market. Platforms like Google and Facebook are using personal data, they have huge audiences, and this allows them to place targeted advertising in a very attractive environment and that's what has hit publishers' revenue. So the problem that publishers have with Google and Facebook was not caused by copyright and it cannot be solved by copyright. If you want to do something about this, you need to regulate online advertising."

Article 13 was the other offending article. It says internet platforms must stop users uploading copyrighted content.

This means platforms will have to scan all data being uploaded to ensure it's kosher. This is a potential mechanism for censorship, will cripple smaller services, and won't work in many cases. "The mistake here is the blind faith in technology, thinking that because it's possible to detect music recordings automatically, it will be possible to detect any kind of copyrighted content," Reda says. "For example, if you have an audio recording of me speaking to you and I were to recite a poem translated from German to English, an upload filter would need to detect the content of what I'm saying and be able to discern whether this is a protected work or not. This kind of technology does not exist."

She's not alone in giving out about Article 13. Internet luminaries like Tim Berners-Lee, Vint Cerf and Jimmy Wales wrote an open letter to the President of the European Parliament saying it would force digital services to spy on users: "Article 13 takes an unprecedented step towards the transformation of the Internet from an open platform for sharing and innovation, into a tool for automated surveillance and control of its users."

MEP Axel Voss believes the amended Article 13 can work: "We have addressed concerns raised about innovation by excluding small and micro platforms or aggregators from the scope. I am convinced once the dust has settled, the internet will be as free as it is today, creators and journalists will be earning a fairer share of the revenues generated by their works, and we will be wondering what all the fuss was about."

He might be right. But Ms Reda believes it's more likely that things will get messy, given the lack of consensus on basic things, like what is a quote and what is a parody. "Governments that are most protective of copyright have completely blocked any attempt at a pan-European approach," she says. "And I'm talking about countries like France that in other areas are always saying we need to speak with one voice. But when it comes to copyright they insist that their national rules must prevail. And the neighbouring rights and upload filers will only make things worse, because these laws are so vague and its unclear how they will work in practice. Probably every member state will come up with its own solutions."

Getting copyright legislation right for the digital age is a tough ask. Balancing the needs of the creative sector with the advances of modern technology requires a tower of strength.

We're getting a tower of Babel.

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