The EU’s Horrendous Copyright Proposal

European Union flags outside the European Commission headquarters in Brussels, Belgium (Yves Herman/Reuters)
This is the wrong way to address online publishers’ grievances.

In the clickbait version of the story, the proposed EU Copyright Directive would kill memes.

It would. And it would have more pernicious effects as well.

The directive advanced through the European Parliament’s Legal Affairs Committee last week; early next month a plenary session of the parliament will vote on it. If it passes, the legislation will move to a reconciliation process with other European institutions that could conclude by the end of the year. Should the policy survive that step as well, EU member states would implement it over the next few years. This would be an unmitigated disaster.

Proponents of the legislation argue that online companies are taking advantage of traditional publishers. The rapport between traditional newspaper companies and Google provides a pertinent example: Last year the search giant ended a “first click free” policy that required publishers to provide readers three paywall-free articles if they wanted their stories to be displayed in search results. Following backlash from publishers, the policy was reversed.

While content creators are one of their crucial constituencies, the platforms — which set the rules of play and attract massive, indispensable audiences — hold all the power in the digital world. The directive seeks to rebalance this asymmetrical relationship by making copyright infringement online more difficult and by ensuring compensation for content. It’s an attempt to establish a semblance of order in the digital Wild West.

Article 13 of the proposed directive creates incentive for digital platforms, such as Google and Facebook, to implement “upload filters” to keep out unlicensed content. As EU copyright law currently stands, companies are liable for unlicensed content uploaded to their platforms only after they have been alerted to the violation. However, under the Copyright Directive, companies would be liable the moment that delinquent content was uploaded. Since platforms couldn’t possibly police uploads manually, they would have no choice but to develop filters that immediately identified and blocked copyright-infringing content.

Experts worry that these filters would overreach in order to protect companies from litigation. Content that falls into a “gray area,” where copyright infringement is possible though not certain, would be blocked out of an abundance of caution, opening the possibility that platforms would censor legal content. Needless to say, this is undesirable.

Maud Sacquet, a senior manager of public policy at CCIA Europe — the industry group that represents Google, Facebook, and other tech companies in Washington and Brussels — tells National Review that “the problem with filters is that they do not recognize parody. . . . To know whether something is a copyright violation you need to understand context.” In other words, satirical content that modifies copyrighted material yet does not infringe on copyright protections could well be blocked.

YouTube has spent many years and countless millions of dollars to develop its own upload filter — called “Content ID” — which is perennially assailed by online video creators as a barrier to their work. Prone to mix-ups that deprive YouTubers of ad revenue, difficult to appeal, and subject to copyright trollery, the Content ID system makes a mess of protecting proprietary content. At Vice, Cory Doctrow puts it succinctly: “The EU proposal doubles down on this failed, $60,000,000 American corporate boondoggle and turns into European law, but expanded to every kind of copyrighted work.”

Clearly, developing upload filters costs quite a bit of money. Like the EU’s recent GDPR consumer-privacy regulation, the Copyright Directive would raise costs, forcing big platforms to direct legions of lawyers to guarantee compliance while driving small competitors out of business or away from the continent. This in addition to the chilling effects on speech these filters will necessarily have.

Another provision that would limit access to content is called the “link tax”; it would essentially require platforms to compensate content creators each time their work is shared. While copyright law already prohibits the reproduction of content in full, the directive would ban or limit the short snippets of text in link previews found on search engines and social-media sites in the absence of a licensing agreement. This would obscure user awareness of what’s behind the links they see, likely depressing traffic to the linked websites.

Heavy-handed regulation like this only freezes out the little guys and limits online speech.

Julia Reda, a Green-party member of the European Parliament from Germany, has seen this movie before. She has spearheaded the opposition to this legislation and compares the link tax proposed with measures enacted in Germany and Spain a few years ago. When Germany passed its link tax in 2013, the decline in traffic to media sites was so pronounced that many publishers simply let Google publish their article snippets without a licensing fee. The publishers, however, did not extend this licensing agreement to Google’s smaller competitors — and to this day, searches on the German version of Yahoo’s news service yield results with short headlines and no article preview.

When Spain enacted a stronger link tax in 2015, Google simply terminated its news feature in the country; this was fine for larger publishers who could count on continued traffic, but smaller websites faced a digital drought. While El País, the largest daily in Spain, should count itself among the beneficiaries of such a provision, it spoke out against the European-level proposal in an editorial that says it “suffocates the process of digital transformation.” Indeed, a study commissioned by a Spanish publishing trade group found that the consequences of the measure are “unevenly distributed, affecting primarily small or lesser-known publications such as native digital newspapers.”

This is why Sacquet says the directive “will be detrimental to the freedom of expression, creativity, innovation online, and globally speaking, to the European digital sector.” Link taxes have consistently been shown to harm small media outlets and platforms.

The digital sphere is undergoing a renegotiation of the terms of power between old and new media. By pushing back against the new sources, however, champions of old media in the EU have overplayed their hand, resulting in a regulation that will almost certainly harm the very industry it was conceived to help. This is important because the debate over how best to mediate between the new and the old in the digital realm holds repercussions that will be heard far beyond the European Union; the failure or success of this gambit and the effects that follow will enlighten future attempts to regulate technology companies.

Publishers often have a legitimate case when they argue that platforms are free-riding on their work and coercing them to act against their own interest — look at the free-click policy that Google tried. However, the provisions advanced by the Copyright Directive are clumsy and dangerous. What would instead be prudent is dialogue; big media needs big tech and vice versa. Heavy-handed regulation like this only freezes out the little guys and limits online speech.


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