The European Union works off a basic foundational notion. The government knows best. If there are a number of options available for addressing a perceived problem, the EU selects the version that gives the government power. Such is the case with the proposed EU Copyright Directive. This Directive is so bizarre that even some EU representatives are starting to think twice about it.
Proposed EU Copyright Directive
The EU is known for getting its dander up every year or two over some perceived wrong. The past few years, the niche has been the Internet. Notably, the horrible American tech companies. And how a bunch of skirt-munching bureaucrats [Thanks Willie of the Simpsons] can save us from the evil of behavioral tracking. After all, who would want to see ads relevant to their searches? The horror.
This week’s perceived crime against society is in the field of copyright. The issues with Copyright, admittedly, are a bit more esoteric. Specifically, how does one address a scenario where one party is stealing the content of another and groups such as the press have antiquated business models that threaten their existence? You have the EU step in with a Directive. One that places an administrative burden on the American tech companies.
And this brings us to the EU Copyright Directive. If you think the DMCA is controversial, you’ll love this Directive.
To refresh your memory, an EU Directive is a general order on a subject. The EU Member States then enact laws following the theme of the Directive but providing their own details. The proposed Copyright Directive is harmful in many ways, but nearly everyone has agreed two sections are particularly a bit much – Articles 11 and 13.
Journalism plays a vital role in society. How else are we to keep up on the critical developments in historically essential groups such as the Kardashians? I kid. But with Article 11, the proposed EU copyright directive seeks to save the antiquated newspaper business model but creating a “link tax.” Any website or app linking to a news resource in the EU would need to pay a tax.
Sound like a challenging idea to implement? It is.
a. What is Journalism?
Now, you might not have an issue with this concept at first glance. Frankly, I didn’t. But then we get into the nuts and bolts of the thing. A drunk first-year novelist couldn’t create a more confusing plot. Let’s start with a simple question. Who is a journalist? Is People Magazine? What if People does a small article on Taylor Swift’s favorite bathing suits with an accompanying photo shoot? Eh. But what if People Magazine does a piece on Taylor Swift getting arrested for a drunken assault on the Dali Lama after confusing him for an ex-boyfriend? Maybe. How about the same magazine doing an article on Kim Kardashian petitioning President Trump to pardon a woman with a drug sentence? Now that is a news story one would think is written by a journalist.
As you can see, the question of where one draws the line on what is journalism and what is not is subjective. And we haven’t even raised the issue of a news story written by…an automated computer program. Or what about a blogger unaffiliated with a newspaper who performs their own investigative journalism on local politicians?
b. 28 Standards?
The answer to all of these questions, of course, will be made clear when the Member States enact their individual laws…in theory. And yet here is where we once again run into the inherent weakness of the EU. The “Union” of Member States is often an unworkable concept because Member States tend to enact laws supporting EU directives that conflict with the laws of other Member States. The Germans thoughts on what is journalism and should be taxed likely different a good bit from Turkey where an editorial cartoon about the President can result in you being chained upside down in prison with burly guards running feathers across your ticklish feet 24/7.
Are you ready to check 28 jurisdictions for licensing and cost information before…linking? You’ll need to be if the Directive goes through.
The result of Article 11 is something the politicians appear to be oblivious to. Far fewer sites and apps will link to news sites, which will curtail the spread of important news – not support it.
To understand Article 13, you must first close your eyes and envision a scenario. You are sitting in a cafe in Brussels. The sun is out. You and four others are sitting around a table sucking absinthe through a sugar infused strainer while making opulent suckling noises.
“We have killed innovation here in Europe for this nasty Internet thing, but what of the beastly Americans? Surely, we can strike in a moment of revenge against these colonists who dominate our digital world!”
The peer next to you lying face down on the table slowly smacking her lips in an absinthe haze makes a subtle move toward verticality before falling back to the table, but not before blurting out, “Copyright, monsieur.”
“By Government, that’s it. We’ll draft a requirement that hits them right in the schwanzstucker using copyright!”
…and this is pretty much what we see with Article 13 in the proposed EU Copyright Directive.
“Information society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users shall, in cooperation with rights holders, take measures to ensure the functioning of agreements concluded with rights holders for the use of their works or other subject-matter or to prevent the availability on their services of works or other subject-matter identified by rights holders through the cooperation with the service providers. Those measures, such as the use of effective content recognition technologies, shall be appropriate and proportionate. The service providers shall provide rights holders with adequate information on the functioning and the deployment of the measures, as well as, when relevant, adequate reporting on the recognition and use of the works and other subject-matters.”
a. Just Filter, Baby
In reality, the Article requires online platforms to filter any content users upload to the platform for infringing copyright materials. Yes, you read that correctly. So, a site such as Facebook will need to screen the hundreds of millions of entries it receives each day to exclude the offending content. YouTube has a program in place that attempts to achieve this result, and it is a mess at best. Now the EU wants to allow 28 Member States to require online platforms to take such action with each Member State setting out a different standard for what is needed.
What could go wrong?
Now, before you have a seizure, it is essential to note that Article 13 only applies to sites processing “large amounts” of user-generated content. What constitutes large? Well, I think it is safe to say Facebook, Twitter, and Instagram are going to fall within the definition. Your forum with 5,000 members? Who knows. What we can guess is each Member State will try to come up with a meaning…and most of those definitions will conflict with each other.
…and this is good for the future of the Internet how?
EU Becoming Inbred Backwater?
The EU’s mad rush to enact regulations and directives regarding the Internet has many commentators wondering if the EU will become a sort of remote village in the swamps of Louisiana online. Already, more than a few sites block traffic from the EU to avoid the costly requirements of complying with the GDPR. The irony is the proposed EU Copyright Directive will have no impact on the Googles and Facebooks of the world. Those companies have the financial resources to comply. Smaller companies are not so lucky when it comes to resources.
And here is where something odd has happened.
The proposed Directive is such an ivory tower dream that makes no sense in the real world that the representatives voting on it just put the breaks on the passage of the Directive. Opponents have not defeated the Directive. However, the opponents have terminated the fast track the Directive was on. There full EU Parliament will now debate and decide its fate. The gathering of the idiots will no doubt pass the damn thing, but a sliver of hope that sanity will prevail still exists.
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