Copyright Directive e-mail text

Dear [MEP name]

After 2 years of discussion, you will shortly be asked to vote on the Proposal for a Directive on Copyright in the Digital Single Market.

Unfortunately, despite intense debate, the final text does not include the suggestions for improvement that have come from over 70 Internet experts, the UN Special Rapporteur on Freedom of Expression, NGOs, programmers, and academics. It thus remains flawed, and open to the risk of doing significant harm to the Internet, to freedom of expression and to European interests.

Specifically, there are three Articles within this Directive I would like to bring to your attention as subjects of concern.

Specifically, there are three Articles within this Directive I would like to bring to your attention as subjects of concern.

Article 3, which covers text and data mining (TDM). Whilst doubtless intended to protect against the predation of private companies gathering and using information, personal or otherwise, for competitive gain, the fact remains that as worded, Article 3 could severely impact European research institutions from using TDM for valid purposes. This could result in EU start-ups being unable to benefit from the advantages TDM might otherwise present, placing them at a heavy disadvantage when compared to those of other nations. In the case on AI research, for example, I would draw your attention to the following article: Why The Copyright Directive Lacks (Artificial) Intelligence.

Article 11, the so-called is the “link tax”. This is intended as a means to allow European publishers to generate income by charging Internet platforms for displaying snippets of their content to users, which generally include a link back to the article itself (thus driving traffic to the publisher’s site  – which is potentially a more robust means of revenue generation). However:

  • Charging for the use of such snippets with links potentially reduces the use of links as a whole, thereby reducing the traffic flow to publisher’s sites, thus Article 11 potentially damages European publishers’ ability to generate revenue, rather than helping them.
  • A similar approach has been both previously tried in both Germany and Spain, and have met with little success.

Article 13, the so-called “meme tax”, although its impact is far more widespread and potentially damaging.In advocating the use of  “proportionate content recognition technologies” – that is, upload content filters – this Article is reliant upon technologies that a) can be well beyond the price tag of many businesses utilising uploaded content; b) have already been demonstrably shown to be flawed (e.g. Google’s ContentID system); c) are unable to capture the complexities of EU copyright law, and could therefore over-block; and d) potentially require EU businesses become dependent upon technologies developed overseas (e.g., again, ContentID).

There are additional concerns with Article 13:

  • The exceptions to the filtering requirement are so narrowly focused (companies must meet all three exemption requirements), it is unlikely many apps and services will be able to comply. These three requirements for exemption are: a platform must have been available to the public for less than 3 years and have an annual turnover below €10 million and have fewer than 5 million unique monthly visitors. By making all three of these requirements mandatory for exemption, Article 13 could severely impact European platform and content sharing innovation in an age where user-generated content is fast proving to be a substantive business model.
  • There are significant omissions from Article 13. For example: what happens to content before a platform provider receives notice from a rights holder over its use? How does a platform provider go about seeking this information? What is the role of rights holders in producing the required information needed by content platforms to identify their content? What kind of content will require a license? Are there are added legal responsibilities for creators? In the interests of clarity and understanding, these are issues that should be addressed in the Article prior to the Directive being subject to a vote.
  • Absolutely no provision is made for the potential “fair use” of content (e.g. images for the review of a product or production).

Because of all of the above, five EU nations, the Netherlands, Luxembourg, Poland, Italy, and Finland, have already indicated their opposition to the Directive. I therefore urge you to add your voice to those of many UK MEPS who have already voted against the Directive in the past, and to do the same in the forthcoming Parliamentary vote in March. By taking this step, you will allow a more balanced and beneficial Directive to be drafted and passed into law, to the benefit of the EU and the Internet as a whole.

Sincerely Yours,

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