On Tuesday, the European Parliament passed a sweeping new law that will change the way copyright is policed online for all 28 nations in the European Union. The Copyright Directive has proved massively controversial. Hundreds of intellectual-property academics have written about why it is so injust, Wikipedia has run blackouts in several countries, and an online petition against it topped five million signatures.
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The shift will have significance for internet users across the world. The EU nations have been more proactive than the US in taking action to regulate the internet and tech giants—passing rules first on data protection and now on copyright—but as the American public mood shifts, US lawmakers are looking to Europe for ideas.
Two particular provisions in the law have really provoked a reaction. The first, Article 11, requires search engines and similar sites to pay publishers when they reproduce short extracts of their material.
Critics of the measure note that just a few established publishing firms will receive most of the revenue. And because Google and others don’t want to pay the fee, they will likely just show less information from sites that levy it. This will potentially damage the user experience and encourage search users to go to less-scrupulous sites. If so, the ultimate situation would be a lose-lose-lose—for search engines, publishers (who get less traffic), and users alike.
The most controversial measure, though, is Article 13. It significantly increases the legal responsibility of sites like YouTube for material that violates copyright—in a way that’s characterized as essentially assuming content is guilty unless proven innocent.
In response to earlier criticism, lawmakers added specific exemptions for parody content and for Wikipedia. But in practice, experts and activists are still concerned that because of the automated filters that will be used, even material that is legal will get filtered out. That’s because any large site with user-uploaded content will need to automate its copyright compliance system—and videos may include multiple copyright issues: clips from several programs, soundtracks, and so on. The result is that a lot of content that would comply with the law will be blocked on the precautionary principle.
Automated filters are not mandated by the law, but they “might effectively be the only way to evade liability for the respective platforms,” says Sebastian Schwemer, researcher at the Centre for Information and Innovation Law at the University of Copenhagen. He fears that although Article 13 might solve a problem in one area, it will cause a host of others elsewhere.
“It seems that concerns raised by academics, civil society organizations, startups, and others have been ignored,” he says.
There are few exemptions to the ruling. Any site that is older than three years will be expected to comply. The effort of doing so could prove crippling to long-running but smaller ventures that generally operate on a shoestring. Wikipedia cofounder Jimmy Wales is among the most vocal critics of the measure, and on Tuesday he despaired of its passing, warning that the law has been overextended to apply to small resource-strapped sites rather than just tech giants with the budget to handle it.
“You, the Internet user, have lost a huge battle today in [the European] parliament,” he said in a tweet.
Explaining his opposition to MIT Technology Review, Wales added: “So many small, lovely, older places online will be regulated as if they have the resources of a giant at their disposal. This means an increase in the power of the big platforms.”
What the furor over Article 13 shows, in particular, is the difficulty of making any changes to anything online. For example, companies affected by the provisions face another headache: each of the 28 countries in the EU now gets to decide how it will implement the law, leading—potentially—to as many as 28 different enforcement regimes that even relatively small sites would have to comply with.
There are some very good reasons for using legislation to tackle the disproportionate power of the tech giants. However well-intentioned, there are vested interests on all sides, and without judicious care and attention, it is clear that users and small sites—the very people and organizations that lawmakers are supposedly seeking to support—are the ones who get caught in the middle.
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June 11-12, 2019