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.

Sources:

* 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.

Copyright, the EU and user-generated content

Update: There is still time to sign the petition / wrte to MEPs, the Parliamentary vote on the Directive is now set for between March 25th and March 29th, 2019.

There has been a lot written over the last few months about the upcoming European Union Directive on Copyright in the Digital Single Market. It’s a controversial topic. Within it, the Directive is an attempt to reshape EU copyright law for the internet age, and the relationship between copyright holders and on-line platforms.

In short, the core issues with the Directive  – which has been under consideration by the EU for the last two years – come in three of its key elements, or Articles:

  • 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, and is the Article I’m focusing on here.

Driven largely out of the wants and needs of big media rights holding corporations concerns about re-use of the media (be it music, film, television, whatever), Article 13 sees a fundamental shift in rights management on the Internet. Whereas currently, the onus is on the rights holders to content to protect their rights, Article 13 seeks to make content platforms responsible for ensuring anything uploaded to their services is not in violation of any IP / copyright – or face severe financial penalties.

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).

Flaws contained within Articles 3, 11, and 13 have generated global concern from politicians across Europe, government organisations such as the Electronic Frontier Foundation, businesses Internet experts such as America’s Cory Doctorow and the UK’s Glyn Moody and more.

Tim Burners-Lee, the father of the World Wide Web has been a critic of the proposed new EU Copyright Directive

Even German politician Julia Rada, who in 2014 was appointed rapporteur of the EU’s Parliament’s review of the 2001 Copyright Directive, and whose initial report Cory Doctorow described as “amazingly sensible”, has become a fierce critic of the new Directive.

However, such concerns – and suggestions for improvements to the Directive – have been largely brushed aside by the Directive’s chief proponents, the right-of-centre EPP, which has been vitriolic in its response to public concerns, dismissing them as the actions of “bots”, etc. Despite this, efforts to get the Directive reformed did prevent it being passed in votes held during 2018, and for a time at the end of the year, it appeared that saner heads would prevail, and both Article 11 and Article 13 would be revised.

Unfortunately, this has proved not to be the case. Due to the way in which the EU works, a final log-jam in the wording was cleared at the start of February 2019 when France and Germany – two nations strongly in favour of the Article 13 – reached an agreement. This leaves Articles 3, 11 and 13 fully retained, with Article 13 somewhat worse than previously worded, as Julia Reda explained:

In the Franco-German deal [PDF]Upload filters must be installed by everyone except those services which fit all three of the following extremely narrow criteria:

  1. Available to the public for less than 3 years [and]
  2. Annual turnover below €10 million [and]
  3. Fewer than 5 million unique monthly visitors.

Countless apps and sites that do not meet all these criteria would need to install upload filters, burdening their users and operators, even when copyright infringement is not at all currently a problem for them.

– Julia Reda, February 5th, 2019

The potential implications of this are huge – and not just for EU-based services. Any service hosting content potentially covered by the Directive is liable to face significant issues, both in terms of trying to implement suitable content filtering and in potential penalties if they are considered to be in breach of copyright. Again, as Julia notes:

Even the smallest and newest platforms, which do meet all three criteria, must still demonstrate they have undertaken “best efforts” to obtain licenses from rights holders such as record labels, book publishers and stock photo databases for anything their users might possibly post or upload – an impossible task.

– Julia Reda, February 5th, 2019

Nor does it end there. There are significant ambiguities in Article 13 that potentially make the upload of content from EU nations problematic for platforms / hosting services:

  • What happens to content before a platform receives notice from a rights holder over its use?
  • How does a platform provider go about seeking this information?
  • The role of rights holders in producing the required information needed by content platforms to identify their content.
  • The kind of content that will require a license.
  • Whether or not there are added legal responsibilities for creators.
  • There is no “fair use” provisioning (although the concept of “fair use” has never actually been enshrined in any EU law).

The first two bullet points above could result in content having to be blocked simply on the basis that it might be in violation of IP or copyright, while the third essentially puts all the cards in the hands of rights holders – theoretically a good thing, but one fraught with even greater potential for misuse by those rights holders that enjoy significant power.

The issue of the kind of content that will require a license, combined with the first two bullet points above it is particularly problematic where something like SL is concerned. What happens, for example to all the in-world models based on European vehicle, boat and aircraft designs? And what about images uploaded as textures or uploaded audio files, the playing of videos in-world? Such questions barely scratch at the surface of things.

Such are the remaining concerns that already, five EU nations have publicly opposed the current version of the Directive – the Netherlands, Luxembourg, Poland, Italy, and Finland.

The end-result on copyright is a step back for the digital single market. It [the EU Copyright Directive] fails to strike a balance between protecting right holders and the interests of individual citizens. This is why the Netherlands, Luxembourg, Poland, Italy and Finland don’t support the final package.

– Joint statement by the EU nations opposing the Copyright Directive,
as seen on the Kingdom of the Netherlands website

However, five nations are not enough to prevent the Directive becoming law.

EUCD Petition

One of the final phases of this process is a vote on the current wording of the Directive by all 751 MEPs. This had originally been scheduled for March 23rd, 2019. However, in a cynical move aimed at preventing objections from the public being made and considered by MEPs, the EPP has pushed for the vote to be brought forward to March 12th.

This is why it is now vital for anyone in the EU concerned about the potential impact of Article 13 (and the Directive as a whole) to make your feelings known to your MEPs and to the European Parliament. there are two key ways to do this:

  • By visiting https://saveyourinternet.eu/act/ and using it to e-mail those MEPs from your country who have been in favour of, or have no opinion on, the Directive as it stands.
    • Because of the accusations that e-mails being received by MEPs voicing concern for about the Directive, it is very important you do not simply cut / paste text into e-mails “as is”, but you take the time to write a personal letter. However:
      • Glyn Moody’s has provided a blog post which might help in formulating your own blog post.
      • My own e-mail (sent earlier this year) can be found here – again, please do not simply cut and paste, but use it as a potential guideline for your own e-mail.
  • By signing a petition.

When I last spoke to Linden Lab on the subject, they indicated that they were following the progress of the Directive and would review matters once the Directive was approaching legal status. Those of us in the EU, can – and noted – make our voices heard; so please do make sure you take the time before March 12th to e-sign the petition, locate your country’s MEPs and send an e-mail.