jeudi, 21 février 2019

(English) Why Article 13 is not just dangerous law-making, but deeply dishonest too

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The EU Copyright Directive is now in the last stages of its passage through the EU’s legislative system. Given the advanced nature of the discussions, it is therefore highly surprising that the Legal Affairs (JURI) Committee responsible for steering it through the European Parliament has recently published a “Q and A on the draft digital copyright directive“. But it’s not hard to guess why this document has been published at this time. More and more people are waking up to the fact that the Copyright Directive in general, and Article 13 in particular, will cause huge harm to the Internet in the EU. This Q and A is an attempt to counter the objections being raised, and to quell the growing calls for Article 13 to be scrapped.

The first question of the Q & A – “What is the Copyright Directive about?” – underlines the core problem of the proposed legislation. The response is as follows: “The proposed ‘Directive on copyright in the Digital Single Market’ seeks to ensure that artists (especially small ones, for example musicians), and news publishers and journalists benefit from the online world and the internet as they do from the offline world.”

Nowhere is there any mention of the EU citizens who use the Internet, or of their priorities. So it is not surprising that the harm the Copyright Directive will cause hundreds of millions of Internet users is never addressed – because the Copyright Directive’s backers simply don’t care. The Q & A claims: “What is currently legal and permitted to share will remain legal and permitted to share.” Although that may be correct in a literal sense, Article 13’s requirement for upload filters means that in practice it is far from the truth. Material that is perfectly legal and permitted to share will be blocked by the filters, because they are necessarily imperfect, and because companies faced with legal consequences will always err on the side of caution and over-block.

The next question is: “How will the Directive affect ordinary users?” The answer is, again, true but highly misleading: “The draft directive does not target the ordinary user.” Nobody is saying that it targets Internet users – in fact, they are totally ignored in the legislation. But the key point is that upload filters will hit ordinary users, and very hard. Whether or not this is the intention is irrelevant.

“Will the directive affect internet freedom or lead to internet censorship?” the Q & A asks. The answer here is: “a user will be able to continue uploading content to internet platforms and (…) these platforms/news aggregators will be able to continue hosting such uploads, as long as the platforms respect the creators’ right to fair remuneration.” Yes, users can upload content, but some of it will be blocked unjustifiably because platforms will not take chances on material that may not be covered by any licensing deals they have signed.

The next question touches on the great lie at the heart of the Copyright Directive – that it does not require upload filters. This is something supporters have been promulgating for some time, and it is shameful to see the European Parliament itself repeat this untruth. Here’s the key part of the answer:

“The draft directive sets a goal to be achieved – An online platform/news aggregator must not earn money from material created by people without compensating them. Therefore, a platform/news aggregator is legally liable if there is content on its site for which it has not properly paid the creator. This means that those whose work is used illegally can sue the platform/news aggregator.The draft directive however does not specify or list what tools, human resources or infrastructure may be needed to prevent unremunerated material appearing on the site. There is therefore no requirement for upload filters.

However, if large platforms/news aggregators do not come up with any innovative solutions, they may end up opting for filters.”

The Q and A is trying to claim that it doesn’t require upload filters, and that the onus is on Internet companies to come up with “innovative solutions”. It says plainly that if a company uses upload filters, it must be to blame for not being sufficiently “innovative”. This is deluded nonsense. Countless experts have pointed out that it is impossible to “prevent unremunerated material appearing on the site” unless every file is checked, and then blocked if necessary – an upload filter. No amount of “innovation” will get around the logical impossibility of complying with the Copyright Directive’s goal without using upload filters.

As well as being irresponsible law making, this approach also exposes the profound tech illiteracy of many EU politicians. They evidently still think that technology is some kind of magic pixie dust that can be sprinkled on problems to make them go away. They have little understanding of the digital field, and yet are arrogant enough to ignore the world’s top experts in the field, when they say that what the Copyright Directive demands is impossible.

Adding insult to injury, the response to the question: “Why have there been numerous recriminations against the directive?” is a huge slap in the face of the EU public. The answer admits: “some statistics inside the European Parliament show that MEPs have rarely or even never been subject to a similar degree of lobbying before (such as telephone calls, emails etc.).” But it then dismisses that unprecedented level of protests as follows:

“There are numerous precedents of lobbying campaigns predicting catastrophic outcomes, which have never come true.

For example, telecom companies claimed phone bills would explode as a result of caps on roaming fees; the tobacco and restaurant lobbies claimed people would stop going to restaurants and bars as a result of the smoking ban in bars and restaurants; banks said they would have to stop lending to businesses and people, due to tougher laws on how they operated and the duty-free lobby even claimed that airports would close down as a result of the end of duty-free shopping in the single market. None of this happened.”

Notice that every “counter-example” it gives involves companies complaining about laws that benefit the public. But that is not the case with the wave of protests against the Copyright Directive, which come from the public, and are directed at the selfish demands of the copyright industry. The Q & A tries to make a false equivalence between the self-interested whining of lazy industries, and the attempt by worried tech experts and millions of concerned citizens to preserve the amazing power and freedom of the open Internet.

This, ultimately, is why the Copyright Directive is so pernicious – because it ignores completely the rights of Internet users. The fact that the new Q & A is unable to answer any of the serious criticisms of the legislation without resorting to shabby casuistry and word games is a confirmation that this is not just dangerous law-making, but deeply dishonest too. If Article 13 is passed, it will undermine the Internet in the EU, turn the region into a digital backwater, and taint the entire democratic system as a result of the EU’s repeated refusal to listen to the citizens it supposedly serves.

Featured image by peter67.

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]