As the EU
advances the new Copyright Directive towards becoming law in its 28 member-states, it's important to realise that the EU's plan will end up censoring the Internet for everyone , not just Europeans.
A quick refresher: Under Article 13 of the new Copyright Directive, anyone who operates a (sufficiently large) platform where people can post works that might be copyrighted (like text, pictures, videos, code, games, audio etc) will have to
crowdsource a database of "copyrighted works" that users aren't allowed to post, and block anything that seems to match one of the database entries.
These blacklist databases will be open to all comers (after all, anyone can create a copyrighted work): that means that billions of people around the world will be able to submit anything to the blacklists, without having to prove that
they hold the copyright to their submissions (or, for that matter, that their submissions are copyrighted). The Directive does not specify any punishment for making false claims to a copyright, and a platform that decided to block someone for
making repeated fake claims would run the risk of being liable to the abuser if a user posts a work to which the abuser does own the rights .
The major targets of this censorship plan are the social media platforms, and it's the "social" that should give us all pause.
That's because the currency of social media is social interaction between users . I post something, you reply, a third person chimes in, I reply again, and so on.
Now, let's take a hypothetical Twitter discussion between three users: Alice (an American), Bob (a Bulgarian) and Carol (a Canadian).
Alice posts a picture of a political march: thousands of protesters and counterprotesters, waving signs. As is
world , these signs include copyrighted images, whose use is permitted under US "fair use" rules that permit parody. Because Twitter enables users to communicate significant amounts of user-generated content, they'll fall within
the ambit of Article 13.
Bob lives in Bulgaria, an EU member-state whose copyright law
does not permit parody . He might want to reply to Alice with a quote from the Bulgarian dissident Georgi Markov , whose works were translated into English in the late 1970s and are still in copyright.
Carol, a Canadian who met Bob and Alice through their shared love of Doctor Who, decides to post a witty meme from " The Mark of the Rani ," a 1985 episode in which Colin Baker travels back to witness the Luddite protests of the 19th
Alice, Bob and Carol are all expressing themselves through use of copyrighted cultural works, in ways that might not be lawful in the EU's most speech-restrictive copyright jurisdictions. But because (under today's system) the platform typically
is only required to to respond to copyright complaints when a rightsholder objects to the use, everyone can see everyone else's posts and carry on a discussion using tools and modes that have become the norm in all our modern, digital discourse.
But once Article 13 is in effect, Twitter faces an impossible conundrum. The Article 13 filter will be tripped by Alice's lulzy protest signs, by Bob's political quotes, and by Carol's Doctor Who meme, but suppose that Twitter is only required to
block Bob from seeing these infringing materials.
Should Twitter hide Alice and Carol's messages from Bob? If Bob's quote is censored in Bulgaria, should Twitter go ahead and show it to Alice and Carol (but hide it from Bob, who posted it?). What about when Bob travels outside of the EU and
looks back on his timeline? Or when Alice goes to visit Bob in Bulgaria for a Doctor Who convention and tries to call up the thread? Bear in mind that there's no way to be certain where a user is visiting from, either.
The dangerous but simple option is to subject all Twitter messages to European copyright censorship, a disaster for online speech.
And it's not just Twitter, of course: any platform with EU users will have to solve this problem. Google, Facebook, Linkedin, Instagram, Tiktok, Snapchat, Flickr, Tumblr -- every network will have to contend with this.
With Article 13, the EU would create a system where copyright complainants get a huge stick to beat the internet with, where people who abuse this power face no penalties, and where platforms that err on the side of free speech will get that
stick right in the face.
As the EU's censorship plan
works its way through the next steps on the way to becoming binding across the EU, the whole world has a stake -- but only a handful of appointed negotiators get a say.
If you are a European, the rest of the world would be very grateful indeed if you would take a moment to
contact your MEP and urge them to protect us all in the new Copyright Directive.
New rules on audiovisual media services will apply to broadcasters, and also to video-on-demand and video-sharing platforms
MEPs voted on updated rules on audiovisual media services covering children protection, stricter rules on advertising, and a requirement 30% European content in video-on-demand.
Following the final vote on this agreement, the revised legislation will apply to broadcasters, but also to video-on-demand and video-sharing platforms, such as Netflix, YouTube or Facebook, as well as to live streaming on video-sharing
The updated rules will ensure:
Enhanced protection of minors from violence, hatred, terrorism and harmful advertising
Audiovisual media services providers should have appropriate measures to combat content inciting violence, hatred and terrorism, while gratuitous violence and pornography will be subject to the strictest rules. Video-sharing platforms will now be
responsible for reacting quickly when content is reported or flagged by users as harmful.
The legislation does not include any automatic filtering of uploaded content, but, at the request of the Parliament, platforms need to create a transparent, easy-to-use and effective mechanism to allow users to report or flag content.
The new law includes strict rules on advertising, product placement in children's TV programmes and content available on video-on-demand platforms. EP negotiators also secured a personal data protection mechanism for children, imposing measures
to ensure that data collected by audiovisual media providers are not processed for commercial use, including for profiling and behaviourally targeted advertising.
Redefined limits of advertising
Under the new rules, advertising can take up a maximum of 20% of the daily broadcasting period between 6.00 and 18.00, giving the broadcaster the flexibility to adjust their advertising periods. A prime-time window between 18:00 and 0:00 was also
set out, during which advertising will only be allowed to take up a maximum of 20% of broadcasting time.
30% of European content on the video-on-demand platforms' catalogues
In order to support the cultural diversity of the European audiovisual sector, MEPs ensured that 30% of content in the video-on-demand platforms' catalogues should be European.
Video-on-demand platforms are also asked to contribute to the development of European audiovisual productions, either by investing directly in content or by contributing to national funds. The level of contribution in each country should be
proportional to their on-demand revenues in that country (member states where they are established or member states where they target the audience wholly or mostly).
The legislation also includes provisions regarding accessibility, integrity of a broadcaster's signal, strengthening regulatory authorities and promoting media competences.
The deal still needs to be formally approved by the Council of EU ministers before the revised law can enter into force. Member States have 21 months after its entry into force to transpose the new rules into national legislation.
The text was adopted by 452 votes against 132, with 65 abstentions.
A new section has been added to the AVMS rules re censorship
Member States shall take appropriate measures to ensure that audiovisual media services provided by media service providers under their jurisdiction which may impair the physical, mental or moral development of minors are only made available
in such a way as to ensure that minors will not normally hear or see them. Such measures may include selecting the time of the broadcast, age verification tools or other technical measures. They shall be proportionate to the potential harm of
the programme. The most harmful content, such as gratuitous violence and pornography, shall be subject to the strictest measures.
Personal data of minors collected or otherwise generated by media service providers pursuant to paragraph 1 shall not be processed for commercial purposes, such as direct marketing, profiling and behaviourally targeted advertising.
Member States shall ensure that media service providers provide sufficient information to viewers about content which may impair the physical, mental or moral development of minors. For this purpose, media service providers shall use a system
describing the potentially harmful nature of the content of an audiovisual media service. For the implementation of this paragraph, Member States shall encourage the use of co - regulation as provided for in Article 4a(1).
The Commission shall encourage media service providers to exchange best practices on co - regulatory codes of conduct . Member States and the Commission may foster self - regulation, for the purposes of this Article, through Union codes of
conduct as referred to in Article 4a(2).
Article 4a suggests possible organisation of the censors assigned to the task, eg state censors, state controlled organisations eg Ofcom, or nominally state controlled co-regulators like the defunct ATVOD.
Article 4a(3). notes that censorial countries like the UK are free to add further censorship rules of their own:
Member States shall remain free to require media service providers under their jurisdiction to comply with more detailed or stricter rules in compliance with this Directive and Union law, including where their national independent regulatory
authorities or bodies conclude that any code of conduct or parts thereof h ave proven not to be sufficiently effective. Member States shall report such rules to the Commission without undue delay. ;