The European Union works off a basic foundational notion – government knows best. If there are a number of options available for addressing a perceived problem, the EU will almost always select the version that gives the government power. Such is the case with the proposed new EU Copyright Directive which is so bizarre that even some otherwise power hungry political representatives are starting to think twice about it.
EU Copyright Directive
The EU is known for getting its dander up every year or two in relation to some aspect of the world we normal humans live in. The past few years, the niche has been the Internet with a focus on the horror companies do and how a bunch of skirt-munching bureaucrats [Thanks Willie of the Simpsons] can save us from the horror of behavioral tracking where so many have died from having Google and Facebook show each person relevant ads based on their searches [GDPR]. After all, why would I want to find products that might correspond to my “hungover – oh, so hungover” search? The horror.
This weeks perceived crime against society is in the field of copyright where, admittedly, the problems 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 and issue a vague directive that might help, but will almost assuredly place a large burden on companies that happen to be based in the United States.
And this brings us to the EU Copyright Directive.
To refresh your memory, an EU Directive is a general order on a subject. The Member States must then enact laws on the topic following the theme of the Directive but providing their own details. The proposed Copyright Directive is noxious in many ways, but nearly everyone has agreed two sections are particularly a bit much – Articles 11 and 13.
Journalism plays an important role in society. How else are we to keep up on the critical developments in historically important groups such as the Kardashians? I kid, but with Article 11 the EU seeks to save the antiquated newspaper business model but creating a “link tax” requiring any site or app to pay a fee to journalist groups whenever one links to their content.
Sound like a difficult idea to implement? It is.
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 and 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 if it does a small article on Taylor Swift’s favorite bathing suits with an accompanying photo shoot? Eh. But what if People Magazine does an article 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 successfully 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?
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 a 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.
“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 rightholders, take measures to ensure the functioning of agreements concluded with rightholders 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 rightholders 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 rightholders 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-matter.”
In reality, the Article requires online platforms to screen any content being uploaded to their platform for copyright infringement. 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 give 28 Member States the opportunity to require online platforms to take such action with each Member State setting out a different standard for what is required.
What could go wrong?
Now, before you have a seizure, it is important 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 definition…and most of those definitions will be in 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 Copyright Directive will have no impact on the Googles and Facebooks of the world who have the resources to jump through all the idiotic hoops the EU puts up, but the same can’t be said for smaller sites.
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. It has not been defeated. However, the fast track the Directive was on has been terminated and there will now be a hearing before the full EU Parliament to 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.