Time to tell the truth about Article 13
The EU Copyright Directive currently working its way through the legislative process is surely one of the worst draft laws ever considered in the EU. Not just in the sense that it will cause serious damage to the Internet in the EU, but also because it is of an almost unprecedentedly poor quality in terms of its detailed framing.
Lawmakers generally recognise that the texts they produce must be clear about what they are trying to achieve, and how that will be implemented. Bad laws inevitably lead to conflicting decisions in the courts, and legal challenges that may even result in laws being struck down. Uncertainty about what new legislation means is not only a waste of time, effort and money, but has a corrosive effect on people’s respect for the law itself. If the fundamental rule of medicine is “first, do no harm”, the corresponding responsibility for lawmakers is “first, don’t be vague”.
Take Article 11, for example, which introduces an ancillary copyright for snippets of news articles. We don’t know how much of a quotation will require a licence – some copyright maximalists have even called for single words to be protected. Even more seriously, we don’t know whether simply using hyperlinks would require a licence. That would clearly cause immense problems for businesses, and for people’s creativity and rights. But the texts currently being considered still do not make it absolutely certain that hyperlinks are excluded from the licensing requirement.
Article 13, which will require user-uploaded material to be pre-filtered for potential copyright infringement, is similarly riddled with uncertainties. For example, it is not clear which online companies it affects, since some may be exempt because they are small or do not involve large quantities of user-uploaded content – whatever “large” means. Similarly, there is no guidance on what should be done where upload filters are unavailable or impossible to create, or if there is no collective licensing body for the material in question. The fact that a whole range of special exceptions, that have been hurriedly bolted on afterwards, try to safeguard platforms like Wikipedia and GitHub from this provision, but may ultimately fail to do so, is evidence that those who produced the original drafts were either completely unaware of, or completely indifferent to, the collateral damage upload filters would cause.
The reason for this shambles is the lack of good faith that has soured much of the debate surrounding the EU Copyright Directive. One manifestation was the insistence that Article 13 did not require upload filters, when that was the only technology that could possibly implement the law’s requirements.
Another is that Article 13 is about the mythical “value gap”. As I’ve explained elsewhere, there is no such thing. Instead, there is an “innovation gap” between what traditional copyright companies have done on the Internet, and what the born-digital services have achieved in terms of coming up with new and profitable services. The bogus “value gap” concept is simply an attempt to persuade people that Internet companies should be punished for succeeding, where leaden-footed and lazy copyright companies failed.
In fact, claiming that Article 13 is about the “value gap” is even more dishonest than it seems. It’s not a general attack on all successful Internet services, but aimed very specifically at one in particular: Google’s YouTube. Again, this was evident from supporters of the proposed EU Copyright Directive, who consistently painted Google as the source of all digital evil. This warped view of the world even led to a risible attempt to brand massive democratic protests by the general public against the EU’s one-sided proposals as some vast Google-funded conspiracy. The absurdity of that position is underlined by the latest lobbying from Google’s YouTube division in favour of upload filters. The Pirate Party MEP Julia Reda explains:
Many have mistaken this as lobbying against Article 13 as a whole – it is not. In Monday’s Financial Times, YouTube spelled out that they would be quite happy with a law that forces everyone else to build (or, presumably, license from them) what they already have in place: Upload filters like “Content ID”.
CopyBuzz and many others have pointed out that upload filters are not a problem for YouTube, because it has already spent more money developing them, in the form of Content ID, than any other company. Article 13 would effectively force all YouTube’s competitors to start creating their own upload filters, which would take considerable time and effort, or to license them from Google. In the either case, the dominance of Google’s YouTube and its Content ID system would be reinforced – although its other services would still be adversely affected by Article 13’s wide reach.
As MEP Reda writes, the only thing Google’s YouTube division is concerned about is the idea that “online platforms [are] inescapably liable for any and all copyright infringement by their users, no matter what action they take”. That’s a problem for the company, because no upload filter is perfect – certainly not the famously fallible Content ID – which would leave Google liable for the unauthorised copyright material that it lets through on YouTube.
Since Google is now openly supporting upload filters in the form of Content ID, an obvious, if imperfect, mitigation of Article 13’s egregious flaws suggests itself: to restrict its scope to YouTube, and YouTube alone. That’s really what this has been about all along, despite the theatrics pretending that it was trying to address the non-existent “value gap”. Imposing such a constraint on the dominant player might even encourage more competition in this sector, which would be an extra bonus.
But the core benefit of such a solution would be that it tackled one of the biggest problems with Article 13: the harm caused by trying to force sites to apply upload filters to every kind of copyright material. That simply isn’t possible to do with any degree of success. The only sectors where there is a system that works even vaguely as Article 13 would require, are audio and video, both handled by YouTube’s Content ID, albeit imperfectly.
It’s time for lawmakers to tell the truth about Article 13, and to admit that it is actually about Google (as is Article 11). Restricting it to YouTube, and removing the obligation for everyone else to filter would also dispose of all the ambiguities and lack of clarity that bedevil the current proposals. That’s by no means the best solution, which would be to delete Article 13 completely. But given the unsatisfactory state of all the texts for that section being discussed in the trilogue negotiations, it’s certainly a better outcome than the dire one hurtling towards us.