Last month, a key European vote brought the EU much closer to a system of universal mass censorship and surveillance, in the name of defending copyright.
Members of the EU Parliament voted to advance the new Copyright Directive, even though it contained two extreme and unworkable clauses: Article 13 ("Censorship Machines") that would filter everything everyone posts to online platforms to see if matches a crowdsourced database of "copyrighted works" that anyone could add anything to; and Article 11 ("The Link Tax"), a ban on quote more than one word from an article when linking to them unless you are using a platform that has paid for a linking license. The link tax provision allows, but does not require, member states to create exceptions and limitations to protect online speech.
With the vote out of the way, the next step is the "trilogues." These closed-door meetings are held between representatives from European national governments, the European commission, and the European Parliament. This is the last time the language of the Directive can be substantially altered without a (rare) second Parliamentary debate.
Normally the trilogues are completely opaque. But Julia Reda, the German MEP who has led the principled opposition to Articles 11 and 13, has committed to publishing all of the negotiating documents from the Trilogues as they take place (Reda is relying on a recent European Court of Justice ruling that upheld the right of the public) to know what's going on in the trilogues).
This is an incredibly important moment. The trilogues are not held in secret because the negotiators are sure that you'll be delighted with the outcome and don't want to spoil the surprise. They're meetings where well-organised, powerful corporate lobbyists' voices are heard and the public is unable to speak. By making these documents public, Reda is changing the way European law is made, and not a moment too soon.
Articles 11 and 13 are so defective as to be unsalvageable; when they are challenged in the European Court of Justice, they may well be struck down. In the meantime, the trilogues — if they do their job right — must struggle to clarify their terms so that some of their potential for abuse and their unnavigable ambiguity is resolved.
The trilogues have it in their power to expand on the Directive's hollow feints toward due process and proportionality and produce real, concrete protections that will minimise the damage this terrible law wreaks while we work to have it invalidated by the courts.
Existing copyright filters (like YouTube's ContentID system) are set up to block people who attract too many copyright complaints, but what about people who make false copyright claims? The platforms must be allowed to terminate access to the copyright filter system for those who repeatedly make false or inaccurate claims about which copyright works are theirs.
A public record of which rightsholders demanded which takedowns would be vital for transparency and oversight, but could only work if implemented at a mandatory, EU-level.
On links, the existing Article 11 language does not define when quotation amounts to a use that must be licensed, though proponents have argued that quoting more than a single word requires a license.
The Trilogues could resolve that ambiguity by carving out a clear safe-harbor for users, and ensure that there’s a consistent set of Europe-wide exceptions and limitations to news media’s new pseudo-copyright that ensure they don’t overreach with their power.
The Trilogue must safeguard against dominant players (Google, Facebook, the news giants) creating licensing agreements that exclude everyone else.
News sites should be permitted to opt out of requiring a license for inbound links (so that other services could confidently link to them without fear of being sued), but these opt-outs must be all-or-nothing, applying to all services, so that the law doesn’t add to Google's market power by allowing them to negotiate an exclusive exemption from the link tax, while smaller competitors are saddled with license fees.
The Trilogues must establish a clear definition of "noncommercial, personal linking," clarifying whether making links in a personal capacity from a for-profit blogging or social media platform requires a license, and establishing that (for example) a personal blog with ads or affiliate links to recoup hosting costs is "noncommercial."
These patches are the minimum steps that the Trilogues must take to make the Directive clear enough to understand and obey. They won't make the Directive fit for purpose – merely coherent enough to understand. Implementing these patches would at least demonstrate that the negotiators understand the magnitude of the damage the directive will cause to the Internet.
From what we've gathered in whispers and hints, the leaders of the Trilogues recognise that these Articles are the most politically contentious of the Directive — but those negotiators think these glaring, foundational flaws can be finessed in a few weeks, with a few closed door meetings.
We’re sceptical, but at least there’s a chance that we’ll see what is going on. We’ll be watching for Reda's publication of the negotiating documents and analysing them as they appear. In the meantime, you can and should talk to your MEP about talking to your country's trilogue reps about softening the blow that the new Copyright Directive is set to deliver to our internet.
Monday 8th October 2018 1:44 am