Copyright laws, that could change the internet as we know it, have been voted in by the European Parliament. The decision came to be after a year of discussions, amid protests led by open source advocates and critics out to #SaveYourInternet.
Dark day for internet freedom: The @Europarl_EN has rubber-stamped copyright reform including #Article13 and #Article11. MEPs refused to even consider amendments. The results of the final vote: 348 in favor, 274 against #SaveYourInternet pic.twitter.com/8bHaPEEUk3— Julia Reda (@Senficon) March 26, 2019
The controversial Article 13 is among the EU Copyright Directives that was passed by 348 members of the European Parliament (MEPs) in favour (and 278 against), on Tuesday, March 26.
This Article will make big tech companies legally responsible for checking all uploads to their platforms, for copyrighted content. This move will affect the likes of Google, Facebook, and YouTube, while also choking free speech and user-generated content, like on Wikipedia and Reddit, thereby stifling Europe’s digital and cultural economies.
The rules are twofold and can be summed up as “link tax” (Article 11) and “upload filter” (Article 13). The first, also called the “press publishers’ right,” is applicable to pasteboards and link aggregators like Google News and Reddit, who may now potentially have to pay publishers for linking to their content.
Article 13, which mandates an ‘upload filter’, entails that any platform profiting off uploaded material, like YouTube, has to ensure that none of the content has some sort of copyright which it does not hold the license to. The impact of this will be felt by Imgur, Tumblr, and other tech companies, which already practise the removal of copyrighted material, but will be required under the new law to apply filters (prone to error and abuse by copyright trolls) to content before it is uploaded.
Creators and musicians are pleased with the new legislation, which they believe will compensate artists fairly. However, tech companies have argued that artists are already paid fairly under the current system.
Europe has been leading the charge in terms of strengthening data and privacy laws in the information era, especially in the wake of the Cambridge Analytica data breach scandal that broke last year. It was around the time that the European Union convened to introduce stronger regulations to protect intellectual property by revising the existing legislation, which is nearly two-decades-old.
The long-awaited update was passed in Tuesday’s final vote, after several iterations specifically to do with two of its most controversial provisions, Articles 11 and 13. The implementation of the directive will, however, be contingent on individual nations in the European Union. Each of the member nations’ respective parliaments will have to vote them in first, following which the nuances will be smoothened, rolled out, and regulated by the government.
It is now up to member states to approve and enforce the decision over the next two years. By 2021, therefore, we might be confronted with new challenges as consumers and regulators of data.
Are memes safe?
After many revisions, the European Parliament assured that memes would be “specifically excluded” from the directive “for purposes of quotation, criticism, review, caricature, parody, and pastiche.” Article 13 does not include cloud storage services and upholds existing exemptions for satirical memes and GIFs.
This, in turn, raises the question of whether the AI (deployed by EU services to filter out copyrighted content) will be able to distinguish between sincere and satirical reproduction. It is also unclear how tech firms would be able to enforce that rule with a blanket filter.
In a new official statement on the Directive, German data privacy commissioner Ulrich Kelber, has warned that Article 13 will inevitably lead to the use of automated filters, because there is no conceivable way that the organisations that run online services could examine everything their users post and determine whether each message, photo, video, or audio clip is a copyright violation.
The fear surrounding the future of memes, therefore, is legitimate as they rely completely on copyrighted stills from stock photos, films, and TV shows. The viral “distracted boyfriend” meme template, for example, was a Getty stock image.
Mary Honeyball, MEP from London, however, has dismissed this “doom-mongering” saying, “People who carry out their business properly have nothing to worry about at all.”
Save your internet
Many artists and web inventors have rallied against the directive, while prominent others, including Paul McCartney, came out in support of the directive. Websites and businesses across Europe protested these controversial changes to online copyright in their own way.
Wikipedia turned dark on March 21, blocking all access and directing users to approach their local politicians against these ‘dangerous’ rules. Reddit, Twitch, and PornHub displayed messages warning of the dire consequences (on their platforms) if the law passed.
Wikimedia, the nonprofit that runs Wikipedia, said the rules would be a “net loss for free knowledge,”—their opposition reminiscent of a similar blackout in 2012, expressing outrage over the Stop Online Privacy Act (SOPA) in the US.
Aiming to curtail copyright infringement on the web by giving the US government unprecedented new powers, both SOPA and Protect IP Act (PIPA) were rejected as overreaching and unhelpful laws that cannot coexist with a free and open internet.
Unfortunately, the same cannot be said for India, where the government criminalised downloading of pirated content and banned torrent sites and illegal internet archives in 2017. This has not only threatened online freedom but severely curtailed people’s right to access the internet as well.
Criticism: Massive step forward or a massive blow?
While royalty services and creatives are overjoyed by the move, critics say the politicians behind the legislation do not understand the breadth of the laws they are proposing, and that the directive can harm free expression online. Open source advocates have further called this a regressive move at a time when knowledge and technology should be made more accessible.
“We now risk the creation of a more closed society at the very time we should be using digital advances to build a more open world where knowledge creates power for the many, not the few,” Catherine Stihler of campaign group Open Knowledge International told the BBC.
The same argument has also been put forward by copyright champions. European Parliament Rapporteur Axel Voss said that the legislation aims to protect people’s livelihoods. “This directive is an important step towards correcting a situation which has allowed a few companies to earn huge sums of money without properly remunerating the thousands of creatives and journalists whose work they depend on,” he said.
“It helps make the internet ready for the future, a space which benefits everyone, not only a powerful few.”
Even if there is a grain of truth to the directive’s noble aims, the lack of details and legal uncertainty in its latest “improved” version is telling. Google in a statement said, “The details matter and we look forward to working with policy-makers, publishers, creators and rights holders, as EU member states move to implement these new rules,” it said.
Why it matters
The threat of tech oligopoly lingers ominously as these laws await to be enforced. The EU directive will not only derail innovation but also make
small- and medium-sized EU companies, which can’t afford to license the entire catalogues of big movie, music, and book publishers, dependent on US filter vendors; Google’s Content ID for Youtube cost a reported €100 million to build and run, and it only does a fraction of the blocking required under Article 13.
Kelber too warns that this will exacerbate the already dire problem of market concentration in the tech sector, and leave Europeans exposed to the risk of online surveillance and manipulation by US companies, thus costing EU services more in compliance costs than it might save by “protecting” their work.
Furthermore, European nations with low-ranking judicial systems often become popular venues for patent litigation, making the entire exercise ineffective and partial. Exposing inventors and manufacturers to justice systems of questionable integrity will destroy their key business advantages, thus proving that strengthening copyright laws can sometimes weaken their desired impact.
Meanwhile, this article in The Conversation argues that tech companies have a lot to gain and only a little to lose from these copyright laws, while acknowledging that this norm would have prevented YouTube from becoming what it is today, had the directive existed 10-15 years ago.
The directive, it says, tilts the scales in the battle over who pays for creative works, culture, and the role and workings of a free press in a world where these “commodities” are exchanged freely on social media and other platforms controlled by giants such as Google and Facebook. But even experts believe that innovative new services and easier methods of getting music to consumers (i.e. Spotify) can be sufficient tools in fighting infringement.
With the new directive, the amount of ‘secondary’ art generated from existing art, like song covers, karaoke, gaming and fair use videos will be lost, leading to a heavy loss for subcultures and counter-culture. Most importantly, however, this severely impedes the praxis of copyleft in the arts and sciences.
The adoption of open source software, for example, is reportedly revolutionising the technology industry, by simplifying and speeding up application development, deployment, and operations. New features can be developed faster, and any issues/bugs identified are resolved sooner. This also helps with security concerns; vulnerabilities can sometimes be spotted faster, with more people working on the code—and even more viewing and perusing it. Several artists including filmmaker Nina Paley and musician Wyclef Jean are also endorsing copyleft for how it democratises art, and tears down the hegemony of copyrights, estates and legacy, especially after the artist’s death.
At a time when legislation should be safeguarding the benefits of the open net, the smokescreen of EU’s draconian copyright law can spell the beginning of the internet’s darkest phase.
Prarthana Mitra is a Staff Writer at Qrius