Article 13 must go: No desperate last-minute witchcraft can turn it into magic pixie dust
After years of thrashing out the text of the proposed update to the EU Copyright Directive, we have come to what is almost certainly the final vote, in the European Parliament plenary early next week. You might think at this stage that it would be all over, with nothing new emerging, and most people simply accepting things as they are. Nothing could be further from the truth. The last few weeks have seen some of the most dramatic developments in the already fraught passage of the Directive through the legislative process.
For example, a few weeks ago, the European Commission published on Medium an extraordinary post entitled “The Copyright Directive: how the mob was told to save the dragon and slay the knight”. The article – now deleted, but still available on archive.org – made it clear that by “the mob” the Commission meant people who had the temerity to point out the terrible damage that the Copyright Directive will inflict on the Internet in the region. Moreover, the post claimed that “‘Big Technology’ has even ‘created’ grassroots campaigns against the Copyright Directive in order to make it look and sound as if the EU is acting against the ‘will of the people’.” In other words, not only were millions of EU citizens part of a mob, but the European Commission implied they were paid to be part of that mob – mere shills for Internet companies like Google.
The European Commission was not alone in casting aside any pretence of impartiality and honesty in discussions about the Copyright Directive. The European Parliament paid for a short video on the subject. It contains a number of deeply misleading statements: that smaller companies are “a little bit exempt” from Article 13 – a meaningless phrase – and that memes and gifs will be “protected”. Neither of those is “protected” from algorithmic upload filters, which cannot distinguish between legitimate use in memes or for parodies, and unauthorised uploads. All-in-all, the video is a disgrace, and truly unbecoming for an organisation that is supposed to represent the interests of 500 million EU citizens, not just those of a few big copyright companies. Shockingly, the video is still available on the European Parliament Twitter account, which shows that it is quite happy to disseminate this biased and misleading viewpoint.
These unprecedentedly anti-democratic interventions from the European Commission and European Parliament show beyond any doubt that supporters of the Copyright Directive are panicking – otherwise they would not feel the need to stoop so low. It’s not hard to see why. The crucial claim that Article 13 will not lead to upload filters has been demolished by a stream of weighty expert views to the contrary.
First, Germany’s Federal Commissioner for Data Protection and Freedom of Information, Ulrich Kelber, declared: “Even though upload filters are not explicitly mandated by the bill, they will be employed as a practical effect.”
Then, we had David Kaye, the UN Special Rapporteur on freedom of expression issuing the following warning: “Article 13 of the proposed Directive appears destined to drive internet platforms toward monitoring and restriction of user-generated content even at the point of upload.” He then went on to say that “Such sweeping pressure for pre-publication filtering is neither a necessary nor proportionate response to copyright infringement online.”
The definitive confirmation that Article 13 does, indeed, mean upload filters, came from the German government, no less. In an official reply to a question submitted by a member of the country’s national parliament, Christian Lange, Parliamentary State Secretary to the German Federal Minister of Justice and Consumer Protection, stated: “In the [German] federal government’s view it appears likely that algorithmic measures will have to be taken in connection with large volumes of data for practical reasons alone.”
No one can deny it now: Article 13 means upload filters, with all the widely-recognised problems of over-blocking they bring with them. Further proof that the argument is over comes from the appearance of a new – and rather desperate – suggestion by supporters of Article 13. They are now saying that collecting societies can just give blanket licences to online companies that allow users to upload anything, which means there will be no requirement to check, and so no need for upload filters. That’s the view of Germany’s main conservative parties, the CDU and CSU, as well as of a new lobbyist organisation, “manifesto4copyright“.
If this were a serious argument, it would have been used to convince people long before – not at the last minute, when everything else has failed. If its supporters really think it should be examined as a feasible approach, then this would imply that the vote on the Copyright Directive should be postponed in order to give MEPs more than a few days to consider it properly. Since they are not calling for this, we can assume that it is simply a last-ditch effort to distract from the deep, unfixable problems of Article 13.
In any case, the suggestion is completely unworkable, as this detailed legal analysis (in German) indicates. The proposal, such as it is, assumes that suitable collecting societies exist in every EU Member State that would be capable of handling the huge volume of licensing required. Despite yet more false claims to the contrary, few digital companies will be exempt from needing a licence for material uploaded by users. Even the lead MEP for the new law, Axel Voss, admits this. In the larger EU nations, such societies may exist for music and video. But in smaller EU states, the situation is far less developed. And there are no collecting societies anywhere for material such as software, maps, choreography, 3D models etc. – all subject to copyright, and thus requiring licences, which will be impossible to obtain from everyone, leaving filters as the only option.
Finally, there’s also the issue of whether creators will be happy to hand over complete control of this kind of online dissemination of their works to collection societies. If they aren’t, and don’t wish to be represented by them in this way, then online companies will once more need filters to prevent those specific works being uploaded, so nothing has been gained by implementing this approach.
As we draw close to the finish of this long and exhausting legislative process, a few things are clear. One is that Article 13 does mean upload filters – no one can seriously deny this. Another is that Article 13 will not only harm freedom of expression on a massive scale, but it will also seriously damage the region’s already struggling digital economy. That’s the urgent message of a new open letter from 130 EU businesses. No amount of tweaking, tricks or supposed ‘fixes’ will turn this flawed technology into the long hoped-for magic pixie dust. The only solution is to drop Article 13 from the agreed text completely.
Please use what little time is left before the final vote next week to join the Great 2019 Web Black-out on Thursday; to participate in marches across Europe in support of the open Internet on Saturday; and, above all, to contact your MEPs to ask them to vote for the removal of Article 13.
Featured image by Dave Bleasdale.