dimanche, 9 décembre 2018

(English) Article 13: What happened, and what we can do about it?

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In the run-up to the September vote in the European Parliament on its negotiation position with the EU Member States on the Copyright Directive, there were various efforts to fine-tune the wording. But to anyone who has been following the twists and turns of this draft in the months before, it is evident that in the final version, nothing has really changed.

The key elements are still there. Online platforms with « significant » amounts of user-uploaded works – whatever that means – will be held liable for any copyright infringement committed by their users. They will be required to conclude licensing agreements. Outside music and video, that will be hard to do, because there are no collective management organisations for some types of content, or they’re just not capable of handling licensing in a way that scales to hundreds of millions of items.

Since copyright holders are not obliged to grant licences, they can pick-and-choose what they licence and to whom. This means that filters will be indispensable for scrutinising every upload, since there is no way otherwise of telling whether it infringes on one of those unlicensed works, and for blocking the unlicensed works being uploaded. Effective upload filters currently don’t exist for most copyright material, so it’s not clear how it will be possible to implement them as Article 13 will require.

Even when they do exist, upload filters always produce false positives, and are likely to produce huge numbers of them judging by past experience in the fields of music and video. Upload filters are also vulnerable to abuse through false claims of ownership and unjustified demands for material to be blocked. That, in its turn, will make it easy for material to be suppressed and censored.

The « complaints and redress mechanism » that the draft text foresees will not solve these problems. Ordinary users of online services won’t necessarily know they can appeal, or how to submit one. Even if they do, they are unlikely to be willing to spend time and energy pursuing a course of action that is daunting, and whose outcome is uncertain. The overall effect, then, will be a massive chilling of public creativity in the EU, along with a general loss of freedom of speech.

Finally, the issue of exceptions and limitations has not been solved in the European Parliament’s text. Memes will be blocked because there is no uniform parody exception across the EU. The only way to implement upload filters will be to apply the most stringent test to all uploads, which means blocking parodies since they will be illegal in some EU Member States.

Given those horrendous, unresolved issues, the question therefore has to be: how could a majority of MEPs possibly accept the current, deeply-flawed text?

To answer that question, it’s instructive to take a look at how the different political parties voted on Article 13. As you might expect, the Conservatives (EPP Group) voted massively in favour: 192 for, 11 against, 3 abstentions. Then of course, the EPP Group is the party of the German EP Rapporteur, MEP Axel Voss, and imposes a strong voting discipline on its MEPs. Similarly, it comes as no surprise that the Liberals, Greens and Left, largely voted against Article 13. What is noteworthy is that the Social Democrats were split and mostly in favour: 93 for, 78 against, and 4 abstentions.

In other words, over half the Social Democrats voted for upload filters, less creativity in the EU and, ultimately, more censorship. Even MEPs who have traditionally been strongly in favour of citizens’ rights this time voted to weaken them, and to strengthen corporates’ power to control what people do online. Judging by the comments and justifications from them that I’ve seen in various contexts, there seem to be a number of factors for this uncharacteristic failure to defend the interests of their constituents.

One is a common insistence that they did not vote for upload filters. To justify that claim, some point to the fact that the explicit mention of « effective content recognition technologies » in the original text proposed by the European Commission has been deleted in the version passed by the European Parliament. This is an extraordinarily naïve view. It is akin to children covering up their eyes to make a danger disappear.

Just because upload filters are not explicitly required does not mean that they can be avoided. Experts have consistently warned that the requirement for licensing will necessarily lead to upload filters. There is no other way of ensuring that unlicensed material is not made available. Constant monitoring would also be required if licensing agreements stipulate payments based on the volume of material posted – a common enough approach. The politicians’ lack of understanding of digital technology has allowed them to be fooled by the simple trick of taking out the words but leaving the obligation.

Having convinced themselves that they were not voting for anything as terrible as upload filters – even though they were – or for anything that would damage the online ecosystem, MEPs were able perhaps to focus on what they saw as the benefits of Article 13. Surely it was just about making the US Internet giants like Google and Facebook pay fairly for the material that appeared on their services?

This view was doubtless encouraged by a propaganda campaign from the copyright industry. It presented Article 13 of the new law as being all about creators getting their due. It is hard to spurn deserving artists asking for help, and many MEPs voting for Article 13 probably believed this was one way to support them. But it is striking that the same argument – that artists desperately need more copyright and harsher enforcement – has been trotted out repeatedly in the past, and to great effect. And yet despite all these legislative wins, artists are still struggling, which suggests the problem has nothing to do with the laws.

The reason is evident: no matter how much copyright is strengthened, the benefits always go predominantly to the companies, not the artists. Naturally, the industry tries to keep the details of its payments to creators vague. But occasionally numbers emerge. For example, according to one source, the major music labels keep 73% of payouts from digital services like Spotify. The same unbalanced allotment of monies will probably occur with the new licensing fees foreseen by Article 13. However laudable the intent of MEPs in supporting Article 13, it will do nothing to address the underlying problem of exploitation of creative artists by powerful business interests.

Article 13 will not only bring few benefits for artists, it will actively harm them. It will make it harder for everyone to take advantage of crucial legal exceptions and limitations to copyright when they create new works, and try to post them online for others to enjoy and to admire. The impossibility of coding upload filters that can correctly encapsulate the complex variation of law across the EU will inevitably lead to overblocking, the chilling of free speech, and constraints on creativity.

Young artists just starting out in their careers will be particularly disadvantaged. This is a view shared by Pascal Nègre, who was the CEO of the French division of the Universal Music Group from 1998 to 2016. Writing recently in Music Business Worldwide, he warns that the “whole process of creation allowing the emergence of the next generation of artists will be undermined” by Article 13’s measures.

The Copyright Directive has now entered trilogue negotiations, where the European Parliament and the Council, representing the Member State governments, try to agree a compromise text that reconciles their different views. Once that text has been drawn up, there will be one more plenary vote in the European Parliament to approve it – or reject it. Although the latter is unlikely, it is not impossible. It happened in 2005 when a proposed law allowing software to be patented was rejected by the European Parliament at the last minute. It could happen again.

So now is the time to talk to MEPs, and to find out whether they supported Article 13, and why. If they are labouring under the misapprehensions discussed above, we can still try to convince them of the serious harm that Article 13 will cause to the European Internet, and its overall disbenefit to artists. We need MEPs to understand what’s really going on here, think through the consequences – and to change their minds in the final vote.

Featured image by Crystal.

Writer (Rebel Code), journalist, blogger. on openness, the commons, copyright, patents and digital rights. [All content from this author is made available under a CC BY 4.0 license]