The new Directive could be more threatening to the Web than shark attacks

On September 12 the European Parliament decided to ignore expert advice and adopted a version of the new Directive on Copyright in the Digital Single Market (DSM) that contains troublesome issues, which have been discussed extensively in this blog and many other places. The Parliament took three particularly troublesome actions (from a digital rights perspective): it watered down a new exception for data mining (Art 3), it creates a new right for publishers over snippets of their works (Art 11), and it requires the creation of filtering mechanisms for intermediaries (Art 13). We’ll concentrate on Arts 11 and 13 for now.

The relevant part of the Parliament text Art 11 now reads:

“1. Member States shall provide publishers of press publications with the rights provided for in Article 2 and Article 3(2) of Directive 2001/29/EC so that they may obtain fair and proportionate remuneration for the digital use of their press publications by information society service providers.

1a. The rights referred to in paragraph 1 shall not prevent legitimate private and non-commercial use of press publications by individual users.

2. The rights referred to in paragraph 1 shall leave intact and shall in no way affect any rights provided for in Union law to authors and other rightholders, in respect of the works and other subject-matter incorporated in a press publication. Such rights may not be invoked against those authors and other rightholders and, in particular, may not deprive them of their right to exploit their works and other subject-matter independently from the press publication in which they are incorporated.

2a. The rights referred to in paragraph 1 shall not extend to mere hyperlinks which are accompanied by individual words.”

This may seem rather obscure for those not following the debate. What is being sought is a 5-year exclusive right by publishers that will stop search engines from displaying search results using snippets of information linking to a published article, unless it is done through remuneration. This is directed specifically at services like Google News, as the publishing industry wants to recover some sort of licensing fee from search engines. As it has been pointed out, similar version of this right have been adopted in Spain and Germany, a change in the law that produced no fees for the publishers. The idea it seems that they want to force Google into compliance by forcing them to pay fees for linking to news sources. The proposal has also been known as a link-tax, which is not entirely accurate as it does not affect links, unless the link has the title of the piece.

The result is likely to be that Google News will cease to exist in Europe. It is also problematic for smaller news aggregators, and while it claims not to affect non-commercial and individual users, the wording is such that it could have a chilling effect on smaller services. My main concern is with smaller services such as blogs, and even social media services that offer some sort of aggregation. Good-bye Moments.

The main concern with Article 13 from the start has been that it imposes filtering obligations on websites. The first thing to point out is that Art. 13 involves “online content sharing service providers”. This has been defined in a narrow manner to try to deflect criticisms:

(4b) ‘online content sharing service provider’ means a provider of an information society service one of the main purposes of which is to store and give access to the public to a significant amount of copyright protected works or other protected subject-matter uploaded by its users, which the service optimises and promotes for profit making purposes.

Microenterprises and small-sized enterprises within the meaning of Title I of the Annex to Commission Recommendation 2003/361/EC and services acting in a non-commercial purpose capacity such as online encyclopaedia, and providers of online services where the content is uploaded with the authorisation of all right holders concerned, such as educational or scientific repositories, shall not be considered online content sharing service providers within the meaning of this Directive.

Providers of cloud services for individual use which do not provide direct access to the public, open source software developing platforms, and online market places whose main activity is online retail of physical goods, should not be considered online content sharing service providers within the meaning of this Directive”

This is quite telling. Knowing the complaint that Art. 13 could affect small and medium tech startups, the adopted text makes quite a lot of exceptions to which services are covered. Wikipedia, Amazon and Github are clearly excluded, along with any microenterprises and small-sized undertakings. However, this still leaves quite a lot of services, and we could see further balkanisation of the Internet as medium companies from across the world decide not to take their chance with European users.

The main text has the main objective of creating a sort of levy for companies not excluded that allow users to upload content. More money for the collecting societies! In case the intermediary does not want to pay a levy, then there will be this provision:

2a. Member States shall provide that where right holders do not wish to conclude licensing agreements, online content sharing service providers and right holders shall cooperate in good faith in order to ensure that unauthorised protected works or other subject matter are not available on their services. Cooperation between online content service providers and right holders shall not lead to preventing the availability of non-infringing works or other protected subject matter, including those covered by an exception or limitation to copyright”

Co-operation here means filtering, similar technical solutions to those present in YouTube with contentID and similar schemes that allow rightsholders to pre-emptively claim content, and the filters will flag and remove if necessary. This is why some people have complained about a “war on memes” or the banning of memes, the idea is that a photographer, film-maker or TV company will send their content to be filtered for infringement, and any potential allowed uses such as parody and memes would be taken down. While I disagree that this will be a ban on memes, I agree with colleagues that this could end up being extremely problematic for users and intermediaries. There is a provision to allow for content to be put back if there has been a mistake, but this seems to be an afterthought.

My fear again is that companies will simply refuse to operate in Europe altogether.

What next? There are now three texts on the table, the Commission, the Council, and the Parliament, and there will be a negotiation to try to reach a final consensus text. My hope is that sanity will prevail and the potential harm of these articles will be deemed too much, and a more rational compromise will arise. The Parliament will need to look at the text one final time.

Then again, I was always a bit of an optimist.


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