5 September 2018

Is the proposed European revision of online copyright a good idea?

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On 12 September 2018, the members of the European Parliament will vote on a revision of European copyright. The new copyright laws have prominent proponents and opponents. Lawyer Stefan Kulk (School of Law) and data specialist Mirko Schäfer (Utrecht Data School) are critical of these new laws: “The proposed reforms contain a number of disturbing elements that can influence the way in which citizens use the World Wide Web,” Schäfer says.

What is it actually about and is the criticism justified, or is it actually good that there will be new copyright laws that are more befitting the digital era that we live in?

Disproportionate measures

News publishers and interest groups for writers and journalists are happy with the new laws, but especially Articles 11 and 13 face much criticism. Politicians, civil-rights groups and internet pioneers spoke out against the Articles, alleging that the Internet is going to be “destroyed”. Schäfer says: “Critics make a convincing case that the proposed revision can lead to censorship, violates privacy, can restrict access to information and smothers technological innovation. Disproportionate measures are being adopted to address copyright violations.”

Article 11

Article 11 states that online platforms that link to a news source have to pay the publisher in question for that news. Kulk says: “This so-called ‘link tax’ is actually a new exclusive right - a publishing right - that enables press publishers to demand that online platforms buy licenses if they want to copy snippets from newspaper articles, magazine articles, etc. The idea behind Article 11 is to strengthen the press by giving them a better negotiation position compared to big Internet platforms such as Google and Facebook.”

I get the feeling that lawyers from the cable-TV era have worked on this.

According to Schäfer, the idea of a license to link to content is contrary to the mental legacy of the web and its technological characteristics. “The web actually thrives on connecting content by means of hyperlinks. The proposal will therefore affect individual bloggers, academics and scientists, citizen journalists, teenagers who innocently share content and also democratic activists who want to inform their fellow citizens. This proposed revision doesn't match the digital era that we live in. I get the feeling that lawyers from the cable-TV era have worked on this.”

Article 11 does not benefit our freedom of speech, which also gives us the right to internalise information.
Stefan Kulk


Article 11 also has consequences for smaller enterprises. Kulk says: “If they want to do something with online content in a smart way, they'll have to think twice. This is putting innovation in the news sector at risk.”

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The power of Google

Germany and Spain have already introduced a form of “link tax”. Kulk says: “It resulted in much insecurity about the question when exactly you need permission to copy a snippet of text. Because of this uncertainty on the applicability of the rules, people and companies in these countries are not likely to links to newspaper articles and such at all. On top of that, Google in Germany at one point said: ‘Then we're not going to link to your articles on Google News anymore!’ The result was that the publishers didn't receive any traffic to their websites at all, which made them even worse off. That also showed the power that Google has to run the Internet as they see fit - but that's a different problem that can't be solved with a ‘link tax’.”


Article 13

Article 13 orders platforms to be stricter about the use of unauthorised material on their platforms. Kulk states that on places such as YouTube, quite a lot of material that the copyright holders should have been paid for is being shared. “Imagine the filtering out of the latest Game of Thrones episode. Under current laws, platforms only have to remove material if the copyright holders have complained about it. Under the proposed rules, platforms have to actively look for unauthorised material themselves, and pay for it if they don't remove it.”

For bigger platforms, it is easier to meet the requirements of Article 13 than it is for smaller or upcoming services. “Big platforms can more easily buy or develop the required technology and they can also directly negotiate with big copyright holders.”

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Disrupted balance

Copyright is not so back and white either, according to Kulk. “Copyright actually does allow the use of other people's material in your video. That's called citing. You're also allowed to use material to make a parody. So a nice little GIF that includes other people's footage is okay. These exceptions exist to improve freedom of speech, among other things. Automated systems can't properly make that kind of distinction between what's allowed and what isn't. If the algorithms are stricter than copyright itself, the balance in copyright is disrupted and freedom of speech is affected.”

It seems very unlikely that such a screening process can differentiate between legal fair use, parody, satire or criticism. And as we see in Germany with the Network Enforcement Act (in effect since January 2017), that promised to fight hate speech, it turns out that platforms are more likely to remove content rather than thoroughly check whether or not messages are within the domain of freedom of speech.
Dr. Mirko Schäfer


The technology that is being developed to filter all Internet-users' content is described as ‘surveillance technology’ by critics. Schäfer agrees with EMP Julia Reda, who states that the technology that needs to be developed to monitor the content will probably be outsourced to a few big American providers, which will further enhance their market share and give them direct access to all Internet users' behaviour on Internet platforms within the European Union.

More transparency

Kulk does think that the new rules offer opportunities to better regulate the filtering practices of Facebook and Google. “We're currently dependent on Google and Facebook to neatly order the systems and provide enough guarantees. With the new law, we can demand that Google and Facebook (and others) are transparent on how these systems work, enabling us to monitor them better.”

Adopt or reject Article 13?

Kulk is okay with the adoption of Article 13, “provided that Internet users' rights are better protected.” Schäfer disagrees: “Article 13 assumes that there will be functioning upload filters. That's a big misunderstanding. We're already seeing that this isn't technologically feasible. On top of that, I think there's not a single opportunity to protect the users' rights.”

Is there even a problem?

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Schäfer wonders whether there actually is a problem at all with the online spreading of copyright-protected content. “A research project commissioned by the EU concluded that there is no proof that online sharing has a negative effect on sales. As these results did not line up with the perspective of big European media concerns and copyright holders, the EU Commission tried to cover up this tax-funded research. Article 13 doesn't solve problems, but introduces them instead.”

“A funny side note: Rapporteur Axel Voss's team has repeatedly used unlicensed content in their own communication and didn't obey the rules the EU wants to impose on European citizens.”

No consumers but producers

Big publishers and European politician Axel Voss see European citizens as consumers, while Schäfer also primarily sees them as producers. “Voss and associates haven't realised yet that the public sphere is no longer exclusively dominated by media companies, but that ordinary citizens, scientists and activists and so-called citizen journalists with no ties to publishers, universities or comparable institutions create, distribute and link to content. Exactly these practices, that enrich our daily use of media and give us access to information, political commentary and discussion, would be in danger because of this proposal.”