EU Edges Closer to Adopting Controversial Copyright Rules

The European Union’s Legal Affairs Committee (JURI) on Wednesday voted in favor of a directive on copyright in the digital single market, a proposal it has been wrestling with since its introduction in 2015.

News of the vote kicked off a storm, as Article 13 of the directive effectively requires online content-sharing service providers evaluate all submissions to ensure they don’t breach copyright.

Publishers, legal experts and observers have opposed Article 13 for years. The Max Planck Institute for Innovation and Competition also has advised against its adoption.

Distinguished figures, including World Wide Web inventor Tim Berners-Lee and some members of the European Parliament, have warned European Parliament President Antonio Tajani that Article 13’s provisions could transform the Internet into a tool for the automated surveillance and control of its users.

Article 13 Angst

Main objections to the proposal:

• It is contrary to EU law;
• Article 13 will benefit Facebook, Google and other large companies rather than small ones as intended;
• The cost and complexity of compliance will be huge; and
• The technology to filter content doesn’t exist yet.

Article 13 uses undefined legal concepts and barely understandable formulations, according to the Max Planck Institute.

“The Council explicitly reinterpreted the notion of ‘communication fo the public’ as stipulated in the InfoSoc Directive, and the intermediary liability regime under the E-Commerce Directive,” said Laura Blanco, associate for European affairs at the Center for Democracy & Technology.

“These are dramatic changes to existing laws that at a minimum require a thorough impact assessment,” she told the E-Commerce Times.

The proposed Article 13 “primarily aims at giving rights holders better leverage in negotiating commercial deals with a few Internet platforms that enable users to upload audio and video content,” Blanco remarked.

“However, the way it’s drafted would impose what amounts to a general monitoring obligation on intermediaries of any kind to employ technological measures to monitor and filter uploaded content,” she pointed out. Further, “mandating this in law goes against Article 15 of the E-Commerce Directive.”

The big players “have already invested large amounts in [monitoring technology] such as YouTube’s Content ID,” Blanco said. Article 13 “will cement the position of those big players by setting their technology as the baseline for smaller players.”

The Cost of Compliance

“The compliance costs of this will not be insubstantial,” noted Corey Doctorow, spokesperson for the Electronic Frontier Foundation.

“Approaching every publication your readers may link to and securing their permission is more expensive than the vast majority of startups can cope with,” he told the E-Commerce Times. “Then someone has to go and look at every one of those links to make sure users don’t violate any one of those terms.”

This “may work for someone like Facebook and Google, but there’s no competitor of that scale,” Doctorow noted. “This is a small tax on American giants that guarantees they will control Internet access in Europe.”

Further, “no computer scientist knows how to build the copyright filters they’re mandating,” he pointed out.

“I think this will devolve into 28 separate contradictory laws that will cause significant harm, because the idea that you could comply with the laws of all 28 member countries by somehow auto-detecting noncompliance is technologically hard,” Doctorow cautioned. “We’ll likely see the hostage situation where the most restrictive rules will govern.”