On 7 February, it became publicly known that the blockade in the Council of the European Union on the highly controversial Article 13 of the Copyright Directive proposal nears an end.
The details which had been on the heart of the disagreement between the Union’s most powerful member states, France and Germany, have now been “resolved” [read the agreement here]. The proposal to how exactly to deal a crippling blow to the freedom of expression on the internet in the EU involves three “mitigating” clauses, added to Article 13: Websites may be exempt from filtering obligations if they are
- available to the public for less than three years
- making an annual turnover of less than 10 million Euros
- visited by less than five million unique visitors per month
These amendments, while supposedly proposed to the benefit of small websites and start-ups, are rendered essentially meaningless by their extremely narrow scope – just think of any online service you regularly use and see if it would make the cut for exemption! Any shosting service provider, however small it may be, and no matter how clearly its audience and services are defined, will be obliged to conclude licensing agreements with everyone producing content on the internet, meaning nearly any internet user. Hosting service providers will also have to install error prone and expensive upload filtering technologies as soon as a three-year maturity is reached, or earlier if they deliver a service that attracts visitors and capital quickly. But the immense complexity of the EU copyright system, as well as the vast number of authors with whom to establish licenses that would need to be taken into account, make it essentially impossible for smaller website providers to ever have legal certainty about their liability for their user’s conduct on their services.
In essence, the only way to to avoid liability would be adopting content filtering technologies. These are mainly provided by the same corporations who ”coincidentally” were heavily involved in lobbying the European Commission to have their products enshrined in European law. Lastly, but most importantly, upload filters will not only be extremely expensive to acquire for the website owners, but they will also pose a fundamental threat to the freedom of expression of citizens on the affected webpages, meaning essentially all websites that feature user generated content. Content recognition technologies have so far an abysmal record in achieving their set out tasks. They are fundamentally unfit to recognise the subtleties of parody, satire or any other exemption that the Directive in principle recognises, yet in practice makes impossible to protect.
The “solution” that the Franco-German tandem is proposing, and which will most likely be rubber-stamped by the Council on 8 February, is not mitigating the extreme dangers posed by Article 13 to any meaningful extent. Instead, the Council continues to head for an internet in which rightsholder societies acquire a “gatekeeper” function for the internet, with the possibility to sue any internet company that fails to delete an unlicensed piece of content uploaded by one of their thousands (or millions) of users from their platform. Mass upload filters and overblocking are likely to be outcome if this agreement is also accepted by the European Parliament.
A final trilogue session with the European parliament, taking place on 11 February, will decide on how exactly the negotiating EU institutions aim to break the internet as we know it. A vote in the plenary of the European Parliament, possibly in March or April 2019, will be the last chance for the Members of the European Parliament (MEPs) to listen to the concerns of entities such as the UN Special Rapporteur on Freedom of Expression and a plethora of civil society organisations, programmers and academics.
[correction on 11 February 2019: the original publication said that the obligation in 13(4aa) was that “Websites may be exempt from concluding licensing agreements” when it should have said “Websites may be exempt from filtering obligations”]
To #SaveYourInternet, you can get in touch with your local and national MEPs, let them know about your concerns, and ask them to reject Article 13.
Franco-German agreement ((04.02.2019)
Copyright: Open Letter calling for the deletion of Articles 11 and 13 (29.01.2019)
Copyright: Compulsory filtering instead of obligatory filtering – a compromise? (04.09.2018)
How the EU copyright proposal will hurt the web and Wikipedia (02.07;2018)
EU Censorship Machine: Legislation as propaganda? (11.06.2018)