26 March 2019

The EU’s censorious copyright directive will create two internets

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The European Parliament’s approval of the Copyright Directive today is the end of the internet as we know it. This new regulation creates substantial new controls on what we can share online which threaten freedom of expression, undermine creativity, and cement the dominance of technology giants.

The Copyright Directive will create two internets. The first, a heavily censored version for European users, including filters to prevent you from uploading content. The second, a free internet where creativity is encouraged, for everyone else.

The directive represents everything that’s wrong with the EU’s policymaking process. It was written at a substantial distance from Europeans, heavily influenced by lobbyists and national compromises. There is a serious lack of accountability.

The opposition to the directive was substantial, but it didn’t seem to matter. Over 200 intellectual property academics have warned that the directive serves “narrow sectional interests”. Even substantial parts of the European music industry have raised concerns about the scheme. The Change.org petition opposing the directive has reached over 5.1 million signatories, the most in the website’s history. Last weekend – while some Brits were marching to stay in the EU – thousands of Europeans took to the street in Save the Internet marches.

There are two particularly concerning sections of the law.

Article 11 prevents news aggregators, such as search engines and social media companies, from linking and providing snippets of news articles without paying a “link tax”. This is clearly absurd. There is no reason why websites should have to pay for what is, in fact, doing news organisations a favour by linking people to their content. It is the responsibility of news organisations to monetise their content through advertisements or paywalls, not attempt to siphon revenues from more successful technology companies.

In practice, this will concentrate power in the hands of large news sites, who are most likely to reach deals to licence the right to link to each other and other sites. A German study found almost two-thirds of revenue will go to a single publisher, and just 1 per cent to smaller publishers. It’s therefore no surprise that the multinational publishing industry lobbyists pushed the directive.

The internet was supposed to democratise access to information. This article will decrease access to online news. It will be much simpler for most websites to block links than go through the effort and expense of reaching licence deals. In 2014, Google shut down Google News in Spain to avoid legal liability in response to a similar domestic law. It was not worth operating a free service that brings in little revenue at the cost of paying for links.

Article 13 makes platforms (like Google, Facebook, Twitter, Tumblr, and web forums) proactively liable for breaking copyright. It reverses the onus, assuming user-generated content breaks copyright unless proven otherwise. This undermines the essential internet principle that platforms should not be legally responsible for the content produced by their users. Platforms are like libraries. When a book breaks copyright or is defamatory it is removed. But you do not sue a library for what authors write, you go straight to the source. While they must remove content on request if it breaks the law, internet platforms should not be liable for everything people say.

Copyright is often unclear and contested. Because they will be legally liable, Facebook, YouTube and other platforms will need to use automated systems to prevent users posting swaths of content from images, videos, and music through to humorous GIFs and memes. In practice, this means new, complex upload filters. This is a serious threat to freedom of expression and online creativity, which often involves mixing together various creative sources. It’ll also often result in false positives, and, to avoid paying fines, substantial limiting of content where copyright is uncertain.

YouTube have pointed to the example of Despacito by Luis Fonsi and Daddy Yankee, which has been viewed almost 6 billion times:

“This video contains multiple copyrights, ranging from sound recording to publishing rights. Although YouTube has agreements with multiple entities to license and pay for the video, some of the rights holders remain unknown. That uncertainty means we might have to block videos like this to avoid liability under article 13. Multiply that risk with the scale of YouTube, where more than 400 hours of video are uploaded every minute, and the potential liabilities could be so large that no company could take on such a financial risk.”

YouTube have warned that they would block access to videos viewed 90 billion times a month in Europe because of uncertain copyright.

While this will all be an expensive pain, Article 13 is a gift to the largest platforms in some ways. Only the largest companies will be able to afford to comply with the legislation by creating automated copyright assessment and licencing with owners. Newer and smaller platforms will not be able to compete. This locks in place the largest companies.

The fight for internet freedom does not end here.

First, the directive must now be transposed into domestic laws. If Britain leaves the EU without a deal, there is no reason the controversial law should be adopted uncritically or without a proper domestic debate. If taking back control means anything, it must mean the ability to diverge from this sort of ridiculous EU overstep. (Though, notably, this will mean fighting back against British creative industry which supported the directive.)

Second, there are fights still to be won. It emerged last weekend that the Conservative Government is planning a new “Ofweb” regulator – an iPlod. The new regulator would have the power to enforce a strict online harm code of conduct, and levy huge fines on social media companies, web forums such as Mumsnet, and even media websites like The Times and Telegraph which have comments sections. This is press regulation by the back door. It would create extraordinary system of censorship by giving the state the power to decide what we can view online.

We may have lost this battle, but the war for a free internet must continue.

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Matthew Lesh is Head of Research at the Adam Smith Institute.