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18 April 2019

EU obsession with US high tech leads to major missed reform opportunity

The EU’s controversial copyright directive started off with all the right intentions but then took a Machiavellian turn as legislators became increasingly obsessed with US high tech and determined to hit them with a big stick. It became a melting pot for Europe’s paranoia and inferiority complex over internet technology and services, which has led to a big missed opportunity to update copyright law properly for the digital age. That after all was and still is the stated intention, along with protecting authors and performers, even if the directive has since become warped by its more political agenda.

As so often when guns are fired indiscriminately the crossfire catches innocent victims and can lead to consequences almost the opposite of those intended. In this case it may be that smaller publishers will be the victims rather than the big platforms and especially Facebook and Google, since only the latter have the resources including the base in AI and machine learning that will enable them to comply with the draconian impositions over copyright infringement.

It will also impose a barrier to some of the people the directive was intended to help, that is smaller content creators who will find it harder to get published, especially if their content is closer to the edge of the new stricter guidelines over suitability, as the big platforms naturally become more risk averse in order to reduce the fines they will have to pay for infringements.

It will also affect many legacy news sites, because they will become liable for any content in their comment sections deemed to breach the new laws. While a lot of such comments are inane, illiterate and indeed offensive to some, it should be up to the beholder and not the EU directive to decide whether they should be read, providing they uphold fundamental laws of decency, libel and copyright.

As we pointed out only three weeks ago when previewing the directive, it is likely to liberate the dark web as the place where people go for less sanitized content that will no longer be published by the main platforms, creating an even darker web behind it where the real nefarious activity takes place. As we noted, the #SaveYourInternet campaign had made a great effort, only to fall on deaf ears as the European Parliament stamped its final seal of approval.

We were right, although the campaign did achieve a few of its lesser targets and it is also worth noting that even now the directive has been cleared by the EU’s Council of Ministers, the war is not yet over since it has to be passed into law separately by each member state within a two-year deadline. Although states have to respect the spirit of the deadline, they can change it in different ways to suit their circumstances and so there are further opportunities for the web freedom advocates to make amendments. The directive was not passed unanimously, with just 19 of the 27 member states, including France and Germany, voting in favor, so freedom advocates are likely to find their moderating efforts met more sympathetically in Finland, Italy, Luxembourg, the Netherlands, Poland, and Sweden, which voted against.

The directive’s two clauses provoking internet freedom fighters, as well naturally as the big tech companies, were articles 11 and 13. The former was aimed initially at news aggregators but now has a much wider remit by requiring licenses for nearly all online uses of news content. It was designed to give news generators more complete control over their product to the point of consumption, including snippets or links posted on aggregators’ web sites alongside the latter’s own summaries. It has therefore been dubbed the “link tax” as a pejorative term reflecting its ultimate limitation on dissemination of information. It stands to make it harder rather than easier for users to navigate the web and discover the content they want.

However, the freedom campaign did achieve some modifications here in the wake of vociferous campaigning from Wikipedia in particular on the grounds it would threaten its ability to cite relevant sources and post links to them in its entries, even though this would appear to be in the interests of the content creators. As a result, article 11 as enacted in the directive allows a few exceptions for individual, non-profit uses, as well as “individual words” and “very short extracts”.  Even so, article 11 still curtails the ability of volunteers to improve Wikipedia, especially with European-specific sources, because these would be subject to the expensive filtering the directive imposes.

Similarly, Wikipedia could also fall foul of article 13, which imposes liability on platforms for copyright-infringing content uploaded by users. Websites have to make “best efforts” to obtain authorization for all content on their websites, as well as quickly remove infringing content and prevent its re-upload. These are hard tasks for even sophisticated platforms, especially those that allow large number of users to upload content. After all content can include instant messaging and voice, although at least the EU did heed concerns over memes and GIF (Graphics Interchange Format) files, that is stills, animated or short video clips relying on copyrighted scenes from TV shows and movies, which can then go viral.

Critics had rightly claimed Article 13 would have made it almost impossible to upload even the tiniest part of a copyrighted work to Facebook, YouTube, or any other site. As a result, article 13 was tweaked to allow upload of memes that were safe for “purposes of quotation, criticism, review, caricature, parody and pastiche”. Even this poses a challenge to platform providers since their filters must be able to differentiate between such memes and other content that is not exempt from the directive as enacted in national laws.

There is a contradiction inherent in the idea of internet freedom to upload content such as videos and music free from concerns over copyright, as campaign group Open Knowledge International chief executive Catherine Stihler recently noted. “We now risk the creation of a more closed society at the very time we should be using digital advances to build a more open world where knowledge creates power for the many, not the few,” Stihler said.

There is also contradiction in the notion that enforcing copyright protection will bear down on big tech. In fact, it will only be the most sophisticated and financially well-endowed websites that will be able to develop the technology to enforce these rules themselves.

As we again pointed out three weeks ago, AI and machine learning will figure prominently in copyright and as we know Google and Facebook are investing huge sums in these technologies, with the former especially having developed and being familiar with core components. The risk is that diversity of content available online will decline dramatically if websites strictly comply with these requirements. Of course, we can hope such legislation is confined to Europe, but the EU already has shown with the GDPR privacy legislation that the rest of the world tends to follow its lead. There is nonetheless the feeling that this copyright legislation will do nothing to reduce the widening technology deficit between Europe and the US.