Save the Internet as we know it: stop the copyright ratchet
Copyright touches everything we do online, which is fundamentally about creating or copying files, and transmitting them over the Internet. Despite its importance, the legal details of copyright are undeniably boring for most people. That’s why the copyright industry is trying to frame Article 13 of the proposed Copyright Directive as greedy US Net giants stealing from poor artists who are powerless to resist these depredations. It’s an appealing, human way of looking at things.
But it’s completely false. Copyright law already protects everything those artists produce, and already gives them ample legal tools for combating unauthorised use of their material. There’s no question that creators should be able to control how their works are used – but the laws are already there, and new ones aren’t needed. Article 13 is not about protecting artists, or shoring up a tottering status quo; it is about extending copyright yet again. It’s another example of the copyright ratchet – the fact that when copyright law is changed, it is always to make it stronger, longer, or more widely applicable – never the reverse.
Nor is Article 13 the only instance of the copyright ratchet in the proposed EU Copyright Directive. Article 11 creates a new, ancillary copyright for newspapers. As with Article 13, the story that publishers need this right is false. They can already use today’s copyright laws to halt the unauthorised use of material. And if they want to prevent search engines and the like from indexing their sites, they can use a simple and effective technical solution to block them completely – the robots exclusion standard.
Similarly, Article 3 creates an additional copyright for publishers in the field of text and data mining (TDM). It would require companies to pay again for the privilege of analysing text and data they have already legally acquired. As a previous editorial explained, this would severely hobble commercial research in the key field of artificial intelligence in the EU. The Japanese government evidently understands this: it has just amended its copyright laws to make it easier for companies to carry out TDM without needing an extra licence.
And as if those weren’t enough, Article 12a creates a totally new kind of copyright for sport event organisers: “This new right would make it copyright infringement to take snapshots or film at e.g. a football match from the audience, with your own phone or camera. Fan vlogs, selfies in the stadium, documenting choreographies/tifos etc. would all be affected by this proposal.” The proposal is a classic case of the copyright ratchet in action. Nobody has complained about the lack of this new copyright, so it cannot be claimed that introducing it is solving a serious problem. But the industry wants it anyway – just “because”.
The upload filters, ancillary copyright and sport event right are all about extending copyright, not about protecting creators. We need to remove these proposals from the Copyright Directive, because if we don’t, they will be locked in thanks to the copyright ratchet.
What makes things worse is that the text proposed by Axel Voss, the lead MEP on the legislation, didn’t include any gains for the public that might counterbalance these major new rights for companies. There was no new right to create user-generated content (UGC) in the Copyright Directive, even though this is an indispensable update for copyright in the digital age. Nor was there even the most basic panorama exception, equally necessary when everyone is routinely using their smartphones to take pictures that include public objects.
MEPs have now tabled amendments to Voss’s rejected text that would rectify those omissions, but there’s no guarantee they will be passed in Wednesday’s vote. The copyright industry has always fought tooth and nail to block even the tiniest improvement for ordinary citizens, and will doubtless be lobbying hard against exceptions for either UGC or freedom of panorama.
This week’s vote in the European Parliament is our best chance to stop these bad and one-sided ideas being fixed permanently in EU law. Everyone who cares about the Internet, or freedom and creativity, must seize this opportunity and contact MEPs to help them understand the terrible harms that will flow from taking the copyright ratchet up a notch. If we don’t, the Internet as we know it will be gone, perhaps forever.
Featured image by Kae.