Copyright, the EU and user-generated content (2)

On Tuesday, March 26th, 2019, the European Parliament voted in favour of the EU’s new European Union Directive on Copyright in the Digital Single Market. As I noted in Copyright, the EU and user-generated content, this has proven a controversial piece of legislation. Although intended to help protect the rights of content providers / creators, aspects of the Directive – notably Articles 3, 11 and 13 – have been seen by opponents as potentially causing damage to the Internet.

These three articles are, in summary:

  • Article 3, relating to text and data mining, which could adversely hit genuine research organisations and things like tech start-ups in Europe (see Why The Copyright Directive Lacks (Artificial) Intelligence as an example).
  • Article 11, (colloquially referred to as “the link tax”) which could severely restrict how we can share links, and information found on European on-line sites.
  • Article 13 (the so-called “meme tax”, although its scope is far greater), which has drawn the heaviest criticism,which could do much to block or restrict the availability of user-generated content.

Article 13 – which is now, somewhat confusingly, Article 17 –  has been of particular concern, as it pushes the onus of rights protection aware from rights holders and pro-actively onto the shoulders content sharing platforms, which potentially causes issues, as I noted when writing on the topic at the start of March:

Aimed at the likes of Google (including YouTube), Facebook and the like, Article 13 could fundamentally impact any platform playing host to user-generated content (UGC), including Second Life, Sansar and other virtual worlds.

Under the Article, all such services are expected to pro-actively prevent any content that might violate the Directive from being uploaded. They are to do so through the use of “proportionate content recognition technologies” – that is, automated content filtering, designed to block anything that might by in violation of copyright. However, such systems a) may not be affordable to those required to implement them, and b) don’t actually work as advertised (as is the case with Google’s multi-million-dollar ContentID system, which has been shown to be far from successful).

Drawing the loudest criticism, Articles 11 and 13 (/ 17) have seen the Directive pass through a number of re-writes, and amendments were being put forward right up until February 2019. The final Parliamentary vote was subject to intense debate, but saw the Directive pass with 348 votes in favour, 274 against. A proposal to allow MEPs to debate and vote on individual amendments was rejected by just five votes*.

So now the vote has been taken, what does this mean?

Well, contrary to the more alarmist reactions, the Internet is not about to totally implode before the weekend arrives; nor are we going to see sudden changes to policies relating to content upload within Second Life. But the risk to EU based content creators, bloggers, vloggers, streamers, etc., is still very much there, and shouldn’t be sidelined; it’s just that there are some more steps the Directive must go through.

Julia Rada, former rapporteur of the EU’s Parliament’s review of the 2001 Copyright Directive referring to the new EU Copyright Directive as “a disaster for the Internet and a generation”

The first of these will come on April 9th, when the Directive is put to the European Council for adoption. Until recently, this looked like a foregone conclusion. However, despite being one of two countries responsible for the final wording of Article 13 (/ 17) in particular, it seems Germany is having something of a change of heart, with their Minister of Justice publicly opposing the idea of upload filters:

We think #Uploadfilter is the wrong Way to go about it. Dear Union, if You want to maintain a Spark of Credibility, You support our Motion in the European Parliament. How we can prevent Upload Filters.

– German Minister of Justice Katarina Barley on Article 13 via Twitter, March 23rd

This means Germany might still retract its support, particularly giving the depth of public opposition to Article 13 (/ 17) that has been voiced. While this seems unlikely (see the video above), it is still important because five other member states – the Netherlands, Luxembourg, Poland, Italy, and Finland – have voiced public opposition to the Directive the vote. So should Germany, a key nation behind the legislation and of the EU, change its mind between now and April 9th, it would prevent a Council majority being reached. This would likely result in further negotiations n the Directive being required after the EU elections due to be held on May 26th, 2019 – elections which could see those determined to see the Directive passed over and above the many concerns raised, voted out of office.

And even if the Council pass the Directive, it will still take time to come into effect. EU nations (and probably the UK, despite Brexit), are theoretically allowed two years to transpose EU Directives into legislation; more often than not, it takes longer than this to be achieved. In the case of Article 13 (/ 17), the process could well be exacerbated by the fact  – and as I again noted in my March 5th article – it contains many holes which need to be dealt with. This in itself could result in a chaotic situation – something that activists in Germany and Poland, as well as concerned organisations such as the Electronic Frontier Foundation are already taking up ahead of the April 9th EU Council meeting.

Despite potentially benefiting from the Directive and Article 13 (/ 17) Google, whose parent Alphabet has spent $100 million pursuing the development of content recognition filters, has joined with other major players within EDiMA, including Amazon, Apple, Facebook, Twitter, Snap and Microsoft, in speaking out against the vote, noting the Copyright Directive stands at odds with other European legislation:

EDiMA, representing digital businesses and online platforms in Europe, regrets the lack of clarity and practicality of two key articles of the Directive.

Specifically, Article 11 of the Directive have been found to be ambiguous and will lead to the greater likelihood of litigation. Whilst Article 13 continues to be technically unworkable because it imposes a monitoring obligation on platforms, in conflict with the e-Commerce Directive which states that there should be none.

– from EDiMA reaction: EU Copyright Directive is not
fit for [the] Digital Era

The Computer & Communications Industry Association in Europe has similarly spoken out against the passage of the Directive, referring to it as a “missed opportunity” and commenting:

We regret the adoption by the EU Parliament of the #copyright directive. We fear that upload filters and the press publishers’ right will harm on-line innovation and restrict on-line freedoms.

Some hope that gentler language added to Article 13 (/ 17) after the September 2018 vote, and which talks of platforms putting the means in place for rights holders to more ready point to infringements in order to have them removed, might present a means to prevent the more dreaded impact of the Directive. But this is very far from certain.

As such, while a significant battle against the EU Copyright Directive has been lost, it is not unreasonable to say the war is now over – but it is going to be significantly harder to win for opponents of Articles 11 and 13 (/ 17) as the fight moves to a more national level in order to persuade governments and the Council of the Directive’s flaws.


* Ciaran Laval, via Twitter, informed me this was actually the result of an error: a group of Swedish MEPs apparently intended to vote in favour of allowing the debate on individual Articles, but pressed the wrong electronic buttons. Unfortunately, the vote stands as recorded, but the error has been noted.

8 thoughts on “Copyright, the EU and user-generated content (2)

    1. We get lots of nice things from the EU. A flawed Directive pushed by those unwilling to listen doesn’t change that. It just means we* need to work harder to fix the bits that don’t work well.

      *I am forced to use “we” here rather loosely, given the UK’s situation does much to prove the point that stupidity exists at a national level as much as it can within something like the EU (if not more so).

      Liked by 1 person

      1. Please Inara, don’t get me wrong. I’m an enthusiastic European, or rather, I used to be one. But what’s going on in Brussels is often just too bad. The beaurocracy is taking over, the laws are made by corporations and lobbyists and shit and one could almost think we’re rotten like the States. When I first heard about Brexit I thought wow, those Brits are mighty stupid. But from what I hear lately I’d like to follow you to independence. Even if the consequences are bad very bad at first, at least you’ll keep your souvereignity. And I’m not saying your Brexit politicians are right, no no. They are a bunch of fukn assclowns and totally inapt to govern a country. But with all the superfluous rules and regulations and norms by the EU … and now §11 and §13, oh my. 😦 Every country escaping that madhouse should count themself lucky.


        1. I am still an enthusiastic European, and whether we like it or not, “running away from” something like the EU – which does have its faults, as noted – is, if we face the realities of how the world works today (equally far from perfect), simply idiotic and self-harming. Far better to work from within to try and fix things than to use them as an excuse to revel in utterly meaningless jingoism couched in unicorn promises and wrapped in an unhealthy dose of xenophobia and to hell with the consequences – which is pretty much what we have on this side of the channel.

          Liked by 1 person

          1. “Work from within” is easier said than done for most of us, as the EU parliament is a rather restricted club. And since we’re not allowed to just chime in at any time we shouldn’t complain about their shitty decisions either?

            Yes, I know many of the pro-Brexit people have unsanitary goals, are xenophibic ultranationalistic fascists and I don’t wanna have anything to do with them. And I don’t wanna live in your skin right now, as the UK is truly and utterly fucked. Bu, honestly, lately, after thinking about what the EU does to the populations of its member states, I can understand that many people wanna get out. Particularly the UK,as you guys were never really true Europeans and even kept your own money and a little bit more of independence than we mainlanders.

            And now look at Brussels’ latest blunder: §13. 😮 They are fuking killing the internet … on orders of the copyright industry, against the will of the voters! Or the trade contracts with USA and Canada; the EU would have approved of those without even blinking an eye. If Trump wouldn’t have cancelled it on the American side we’d have lost many of our consumer’s rights and even some human rights by now.

            I’m just so happy to dwell in a second world country, and enjoy total freedom far away from the European madhouse.


            1. “Work from within” is easier said than done for most of us, as the EU parliament is a rather restricted club.”

              That’s what European (and national) elections are for.

              “And since we’re not allowed to just chime in at any time we shouldn’t complain about their shitty decisions either?”

              I didn’t say that. We can and should certainly chime in – and we do. Whether they listen or not is another matter, but again, that’s what elections are for. And yes, I know there is the more autocratic Council – but they cannot simply instruct and legislate without Parliamentary input / support.

              “Particularly the UK,as you guys were never really true Europeans and even kept your own money and a little bit more of independence than we mainlanders.”

              The UK has always liked to pretend it’s not part of Europe, but the fact is, in terms of economics and trade, we have been fully tied to the EU for 43 years – and to our great benefit. Yes, we “kept some of our own money” (i.e. we negotiated a rebate of fees paid, which were originally lopsided on a result of the UK initially coming late to the party). The independence has come through careful and skilled negotiations by those in the UK with and understanding of the EU – and who have all been soundly ignored by the current bunch of ego-loonies occupying the House of Commons vis the entire #Brexitshambles.

              Liked by 1 person

              1. “That’s what European (and national) elections are for. ”
                Oh please. Super elections where your once trusted party and politicians are turning 180° around after the election and doing everything to hurt you?

                “but they cannot simply instruct and legislate without Parliamentary input / support.”
                Which they, no question, always get. Money talks n stuff. I don’t trust the EU parliament even less than our own. Brussels is made from 90% lobbyists with suitcases full of money. And most laws these days are written by corporations, and they know how to reach their goals.

                “Yes, we “kept some of our own money” (i.e. we negotiated a rebate of fees paid”
                I dunno anything about that but was refering to UK keeping their pound sterling. And yes, you were always kinda special snowflakes and excempt from some stuffz the rest of us had to suffer.

                But that’s all details and nitpickig. Let’s agree that we’re both prinicipally pro EU and know that in today’s global economics any country that breaks international ties is doomed to fail. Just the EU parliament has to do better, much better. Intstead of coming up with norms about the curve radius of bananas they should better protect us from trade contracts with the US and Canada.


                1. Well, I would suggest you check-up on how the EU has protect European nations from the likes of US chlorinated chicken imports, US hormone-laced beef and dairy products, potential endocrine disruptors in US fruits, etc., rather than raising a “harmonisation” policy from 1995 that has been one among many sources of myths regarding EU regulation; but yes; let’s leave it as we’re both pro-EU and recognise it is still a more broadly positive work-in-progress, even when considering the warts it has grown.


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