For over 8 months we've been following the EU Commission's dangerous attempts to impose a new link tax on news content. But today we're writing about a stunning new development we wanted to make sure you heard:
The European Commission have launched a special process to push forward a new, bigger, broader, version of the hyperlinking fee.
EU decision-makers and lobbyists are calling it a neighbouring right, a snippet tax, or ancillary copyright. But we know what it is: a tax on linking.
If they succeed the link tax could make some of your favourite content virtually disappear from search engines.
We've seen this bad idea before, but as MEP Julia Reda put it, this is a "broader and badder version" of the previous push for a Link Tax. 1
Anti-innovation politicians are also talking about a special YouTube tax 2 and still others are pushing the idea of a user fee or a search fee! 3
These terrible ideas will restrict freedom of expression and access to information, but they still want to push ahead.
European decision-makers are in the process of writing a new copyright law and lobbyists are pushing for something called "ancillary copyright". If the lobbyists succeed, copyright rules will be extended to links and the text that
accompanies them -- giving legacy publishers the right to charge fees for linking to content.
If this sounds familiar it's because late last year people like you in the OpenMedia community overwhelmed EU decision-makers 4 by flooding their public consultation on the Link Tax proposal.
The Internet community has said no, 5 European Parliamentarians have said no, 6 many publishers themselves have said no. 7 Enough is enough already!
If we act now we have a chance to put a stop to this idea before it gets out of control.
A just-leaked draft impact assessment on the modernization of European copyright rules could spell the end for many online services in Europe as we know them. The
document's recommendations foreshadow new a EU Directive on copyright to be introduced later this year, that will ultimately bind each of the European Union's 28 member states. If these recommendations by the European Commission are put in place,
Europe's Internet will never be the same, and these impacts are likely to reverberate around the world.
The 182-page document identifies three general objectives--ensuring wider access to content, adapting copyright exceptions to the digital and cross-border environment, and achieving a well-functioning marketplace for copyright. In this initial article we
examine the recommendations that fall under the third of these three objectives, which are amongst the most alarming proposals, including new obligations on Internet platforms, and new copyright-like powers for news publishers.
More specifically, this article will look at two of the proposals for what the Commission calls "upstream" problems, or difficulties faced by copyright owners in extracting value from the use of content online. We'll deal with other parts of
the document in later posts.
"Sharing of Value" Proposal Exposes Rightsholder Greed
The assumption that copyright owners should be entitled to share in any value created by online platforms is never really examined by the Commission. The theory is that because online platforms are doing rather well in the digital environment, and
because traditional publishing industries are doing less well, this gives the publishers some kind of claim to share in the profits of the platforms. It's a questionable starting point, and as we'll see, the recommendations that flow from it are
ill-considered and harmful.
The first of the two problems that copyright owners supposedly face in extracting such value is that there is a large amount of user-generated content uploaded by users to sharing platforms, and that European law does not place an obligation on platforms
to proactively police this content for possible copyright infringement, but instead relies on the latter to identify that the material has been uploaded without authorization and to request its removal. That existing law strikes a reasonable balance,
similar to Section 512 of the Digital Millennium Copyright Act in the U.S.
Major entertainment companies characterize this as a problem because it means that copyright owners have less ability to ask online platforms to pay licensing fees for their content. In the case of user-generated content platforms (think YouTube and
Soundcloud), the platform can simply offer to remove a copyright-owner's content rather than paying for it--or, in practice, to voluntarily offer a compromise such as YouTube's Content ID that automatically scans uploaded content and shares ad revenues
for content identified as the copyright owner's.
As for platforms that offer access to their own library of content (think Netflix and Spotify), rightsholders contend that they may be willing to pay less in order to remain competitive with the user-generated content platforms. In either case, major
copyright holders contend that platforms should be paying them more for the content that the platforms make available online.
The European Commission's proposed solution, however, is worse than the supposed problem. The Commission is proposing that user-generated content platforms should be forced to seek, in good faith, to conclude private agreements with copyright owners and
to put in place "appropriate and proportionate content identification technologies". In short, the use of something like YouTube's Content ID system is being made compulsory.
This is a treacherous idea for many reasons, but just to give two:
Automated systems, no matter how technically sophisticated, can never replace human judgment about whether user generated content infringes copyright. This is because copyright exceptions that exist in the United States (such as fair use) and in various
forms across Europe (such as quotation, parody, and news reporting), mean that not every act of copying is an infringement. As a result, Content ID-type systems will inevitably misflag content, and wrongly allow a copyright claimant to monetize it or
take it down.
Content ID-type systems are extremely expensive. YouTube reportedly spent $60 million on the development of Content ID, but even if a new entrant would have to spend a small fraction of that on a similar system, that would still be an insurmountable
obstacle to the majority of small and medium enterprises, and to non-profit organizations and users ranging from Wikipedia, all the way down to your brother who hosts a fanart messageboard on a desktop PC in his bedroom.
More broadly, this kind of insidious regime of private agreements pushed by government is the kind of cop-out from good lawmaking that EFF calls "Shadow Regulation"; a concept that we'll be introducing in more depth in subsequent Deeplinks
posts, where we will give some other examples of the same. But in short, such agreements can embody the worst of all possible approaches, by combining the coercion of government regulation, with the lack of accountability of corporate self-regulation.
A Link Tax in Favor of News Publishers
The European Commission doesn't stop there, but also has a similarly ham-fisted proposal to address the declining revenues of news publishers from their print publications, which leaves them with fewer resources to continue to invest in journalism.
We have previously agreed that this is a real problem . But where the Commission errs is to pin responsibility for this problem on the reuse of news content by Web platforms under exceptions to copyright; and it compounds this error by seeking to limit
their use of such copyright exceptions going forward.
The Commission's proposal is to award publishers a new copyright-like veto power, layered on top of the copyright that already exists in the published content, allowing them to prevent the online reuse of news content even when a copyright exception
applies . This veto power may last for as little as one year, or as many as 50--the Commission leaves this open for now.
This kind of veto power has been described as a link tax --notwithstanding the Commission's protestations that it isn't one--because when the publisher controls even the use of small snippets of news text surrounding a hyperlink to the original article,
it essentially amounts to a tax on that link. The result, as seen in Spain, will be the closure of online news portals , and a reduction in traffic to news publishers .
A new wrinkle on this link tax proposal is that the Commission also proposes that publishers who have received a transfer of copyright from authors should also be entitled to collect revenue from whatever copyright levies member states may impose to
"compensate" authors for use of their content under copyright exceptions. The notion that "compensation" is needed for users exercising their rights under copyright is a thoroughly perverse one, as we have previously explained . This
addition to the link tax proposal is a gift to copyright collecting societies that will further increase the cost and complexity of lawfully reusing content.
What Happens Now?
The impact assessment is not yet a draft law, but it is a crystal clear indication from the European Commission about the content of the law that is is proposing to develop as a draft for approval by the other European institutions, namely the European
Parliament, and the Council of the European Union. Users will have further opportunities for input into the proposals when they reach that stage.
But we'll have the best chance of stopping these misguided proposals if European officials are alerted to our concerns right away. They need to understand that Internet users won't accept the "Shadow Regulation" of intermediaries by requiring
them to enter into expensive and error-prone arrangements with copyright owners for the automating flagging of user content. Neither will they accept a new "link tax" for news publishers that could stifle the dissemination of news online.
Users around the world have been outraged by the European Commission's proposal to require websites to enter into Shadow Regulation
agreements with copyright holders concerning the automatic filtering of user-generated content
. This proposal, which some are calling RoboCopyright
and others Europe's #CensorshipMachine
, would require many Internet platforms to integrate content scanning software into their websites to alert copyright holders every time it detected their content being uploaded by a user, without any consideration of the context.
People are right to be mad. This is going to result in the wrongful blocking of non-infringing content, such as the fair use dancing baby video
. But that's only the start of it. The European proposal may also require images and text -- not just video -- to be automatically blocked on copyright grounds. Because automated scanning technologies are unable to evaluate the applicability of copyright
exceptions, such as fair use or quotation, this could mean no more image macros
, and no more reposting of song lyrics or excerpts from news articles to social media.
Once these scanning technologies are in place, it will also become far easier for repressive regimes around the world to demand that Internet platforms scan and filter content for purposes completely unrelated to copyright enforcement -- such as
suppressing political dissent or enforcing anti-LGBT laws. Even when used as originally intended, these automated tools are also notoriously ineffective, often catching things they shouldn't, and failing to catch things they intend to. These are among
the reasons why this new automatic censorship mechanism would be vulnerable to legal challenge under Europe's Charter of Fundamental Rights, as we explained in our
last post on this topic
A Filtering Mandate Infringes the Manila Principles on Intermediary Liability
According to the Manila Principles (emphasis added):
Intermediaries should be shielded from liability for third-party content
Any rules governing intermediary liability must be provided by laws, which must be precise, clear, and accessible.
Intermediaries should be immune from liability for third-party content in circumstances where they have not been involved in modifying that content.
Intermediaries must not be held liable for failing to restrict lawful content.
Intermediaries must never be made strictly liable for hosting unlawful third-party content, nor should they ever be required to monitor content proactively as part of an intermediary liability regime .
Forcing Internet platforms ( i.e ., intermediaries) into private deals with copyright holders to automatically scan and filter user content is, effectively, a requirement to proactively monitor user content. Since sanctions would apply to
intermediaries who refuse to enter into such deals, this amounts to an abridgment of the safe harbor protections that intermediaries
otherwise enjoy under European law
. This not only directly contravenes the Manila Principles, but also Europe's own E-Commerce Directive.
The Manila Principles don't ban proactive monitoring obligations for the sake of the Internet intermediaries; the ban is to protect users. When an Internet platform is required to vet user-generated content, it has incentive to do so in the
cheapest manner possible, to ensure that its service remains viable. This means relying on error-prone automatic systems
that place copyright holders in the position of Chief Censors of the Internet. The proposal also provides no recourse for users in the inevitable cases where automated scanning goes wrong.
That doesn't mean there should be no way to flag copyright-infringing content online. Most popular platforms already have systems in place that allow their users to flag content --for copyright infringement or terms of service or community standards
violations. In Europe, the United States, and many other countries , the law also requires platform operators to address infringement notices from copyright owners; even this is the subject of considerable
abuse by automated systems
. We can expect to see far more abuse when automated copyright bots are also put in charge of vetting the content that users upload.
Europe's mandatory filtering plans would give far too much power to copyright holders and create onerous new barriers for Internet platforms that seek to operate in Europe. The automated upload filters would become magnets for abuse -- not only by
copyright holders, but also governments and others seeking to inhibit what users create and share online.
If you're in Europe, you can rise up and take action using the write-in tool below, put together by the activists over at OpenMedia. This tool will allow you to send Members of the European Parliament your views on this repressive proposal, in order to
help ensure that it never becomes law.
Against all the odds, but with the support of nearly a million Europeans
, MEPs voted earlier this month to reject
the EU's proposed copyright reform--including controversial proposals to create a new "snippet" right for news publishers, and mandatory copyright filters for sites that published user uploaded content.
The change was testimony to how powerful and fast-moving Net activists can be. Four weeks ago, few knew that these crazy provisions were even being considered. By the June 20th vote,
Internet experts were weighing in
, and wider conversations
were starting on sites like Reddit.
The result was a vote on July 5th of all MEPS, which ended in a 318 against 278 victory in favour of withdrawing the Parliament's support for the languages. Now all MEPs will have a chance in September to submit new amendments and vote on a final
text -- or reject the directive entirely.
While re-opening the text was a surprising set-back for Article 13 and 11, the battle isn't over: the language to be discussed on in September will be based on
the original proposal
by the European Commission, from two years ago -- which included the first versions of the copyright filters, and snippet rights. German MEP Axel Voss's controversial modifications will also be included in the debate, and there may well be a flood
of other proposals, good and bad, from the rest of the European Parliament.
There's still sizeable support for the original text: Article 11 and 13's loudest proponents, led by Voss, persuaded many MEPs to support them by arguing that these new powers would restore the balance between American tech giants and Europe's
newspaper and creative industries -- or "close the value gap", as their arguments have it.
But using mandatory algorithmic censors and new intellectual property rights to restore balance is like Darth Vader bringing balance to the Force: the fight may involve a handful of brawling big players, but it's everybody else who would have to
deal with the painful consequences.
That's why it remains so vital for MEPs to hear voices that represent the wider public interest. Librarians
, and redditors, everyone from small Internet businesses and celebrity Youtubers, spoke up in a way that was impossible for the Parliament to ignore. The same Net-savvy MEPs and activists that wrote and fought for the GDPR put their names to
challenge the idea that these laws would rein back American tech companies. Wikipedians stood up and were counted: seven independent, European-language encyclopedias consensed to
on the day of the vote. European alternatives to Google, Facebook and Twitter argued that this would set back their cause
. And European artists
spoke up that the EU shouldn't be setting up censorship and ridiculous link rights in their name.
To make sure the right amendments pass in September, we need to keep that conversation going. Read on to find out what you can do, and who you should be speaking to.
Who Spoke Up In The European Parliament?
As we noted last week, the decision to challenge the JURI committee's language on Article 13 and 11 last week was not automatic -- a minimum of 78 MEPs needed to petition for it to be put to the vote. Here's
of those MEPs who actively stepped forward to stop the bill. Also heavily involved was Julia Reda, the Pirate Party MEP who worked so hard on making the rest of the proposed directive so positive for copyright reform, and then re-dedicated herself
to stopping the worst excesses of the JURI language, and Marietje Schaake
, the Parliament's foremost advocate for human rights online.
These are the core of the opposition to Article 13 and 11. A look at that list, and the
final list of votes
on July 5th, shows that the proposals have opponents in every corner of Europe's political map. It also shows that every MEP who voted for Article 13 and 11, has someone close to them politically who knows why it's wrong.
What happens now?
In the next few weeks, those deep in the minutiae of the Copyright directive will be crafting amendments for MEPs to vote on in September. The tentative schedule is that the amendments are accepted until Wednesday September 5th, with a vote at
12:00 Central European Time on Wednesday September 12th.
The European Parliament has a fine tradition of producing a rich supply of amendments (the GDPR had thousands). We'll need to coalesce support around a few key fixes that will keep the directive free of censorship filters and snippet rights
language, and replace them with something less harmful to the wider Net.
Julia Reda already proposed amendments. And one of Voss' strongest critics in the latest vote was Catherine Stihler, the Scottish MEP who had created and passed consumer-friendly directive language in her committee, which Voss ignored. (Here's her
before the final vote.)
While we wait for those amendments to appear, the next step is to keep the pressure on MEPs to remember what's at stake -- no mandatory copyright filters, and no new ancillary rights on snippets of text.
In particular, if you talk to your MEP
, it's important to convey how you feel these proposals will affect you . MEPs are hearing from giant tech and media companies. But they are only just beginning to hear from a broader camp: the people of the Internet.