Copyright in the EU

The EU red tape generation machine has become so entangle that most of the EU's latest internet laws are simply impossible to comply with.

The latest example is that search engines are nominally forced to negotiate with newspapers to agree a charge to pay for links to newspaper websites. However it now appears that French law means that newspapers can ask ask any price they like and the French authorities will fine search engines that don't agree the price.

Google has been hit with a euro 500m (£427m) fine by France's competition authority for failing to negotiate in good faith with news organisations over the use of their content.

In 2019, France became the first EU country to transpose the EU's disgraceful new Digital Copyright Directive into law. The law governed so-called neighbouring rights which are designed to compensate publishers and news agencies for the use of their material.

As a result, Google decided it would not show content from EU publishers in France, on services like search and news, unless publishers agreed to let them do so free of charge.

News organisations felt this was an abuse of Google's market power, and two organisations representing press publishers and Agence France-Presse (AFP) complained to the competition authority.

Google told the BBC: We are very disappointed with this decision - we have acted in good faith throughout the entire process.

The new ruling means that within the next two months Google must come up with proposals explaining how it will recompense companies for the use of their news. Should this fail to happen the company could face additional fines of euro 900,000 per day.

A while ago the EU passed a copyright directive demanding that internet businesses, websites and social media automatically block the upload of unauthorised copyrighted material whilst simultaneously demanding that this should not impinge on the free speech use of material in terms of memes or comment.

Of course the subtlety of distinguishing between differing usages is way beyond the AI capabilities of most EU businesses and so is more or less impossible to implement. Now EU states are getting confused on how to implement the directive in their national law.

And even though June 7 was the initial deadline for member-countries to implement it, it is far from being settled from the point of view of the harm it can cause to free online expression in the bloc.

The tortuous EU legislative process reached a milestone on June 4, when the European Commission revealed guidelines to its 27 members on how to implement Article 17, while protecting online users rights. And while the document , that is not legally binding, states that filtering should only apply to what are clear-cut cases of illegal content, it also ushers in what advocates see as a massive loophole.

It refers to giving rights holders the ability to 'earmark' content, which could end up in platforms censoring it, including in cases of fair use. Content that according to the European Commission may be earmarked as economically viable is a new term in the realm of copyright enforcement, and there are fears that it may be little more than a synonym for censorship.

Some EU member states have not given up on their legal challenge to the Directive, with Poland going to the Court of Justice of the European Union and naming the European Parliament and the Council of the European Union as defendants in a case seeking to establish if Article 17 is aligned with the bloc's Charter of Fundamental Rights. Poland is seeking partial, or full annulment of the article. The ruling is expected on July 15.

In view of the implementation deadline in summer 2021, it is becoming increasingly apparent what the transformation of the EU's disgraceful Copyright Directive in Germany could look like. The draft of the Federal Ministry of Justice and Consumer Protection is now available and is - just like the Directive on which it is based - highly controversial, in particular in terms of the possible implementation of upload filters.

The directive requires platforms to censor copyrighted material as a user attempts to upload a post. It requires the platform to scan the post prior to publication and block it should it contain copyrighted material. However the directive also specifies some legally specified exemptions without the need for licensing, e.g. parodies or so-called pastiches, i.e. remixes, memes, GIFs, mashups, fan art, fan fiction, covers or sampling. But can the automated upload filters detect that copyright material in a post is a pastiche or not?

Lexoligy describes a German variation adding some metrics to this legally permitted fair use:

The draft German Act provides for a minor exception clause for non-commercial use in social media. According to this, reproductions for non-commercial purposes of a small scale will be allowed, even if they have not been licensed (e.g. up to 20 seconds of a film or sound track, 1,000 characters of a text or photographs with a data volume of up to 250 kB).

If the public reproduction of a content is not permitted, the service provider is obliged to immediately remove the corresponding content or block access to it upon notification of the rights holder. If the content is permitted the platform must pay the author an appropriate remuneration.

It seems that the envisaged censorship process is for the platform to block the content automatically and then give an opportunity for the user to justify why the content should not be blocked. But this process doesn't sound very viable for an average social media poster. And perhaps the only practical outcome is for all copyright material to be blocked from all user posts with just a few savvy 'influencers' able to work the system.

During the Article 17 (formerly #Article13) discussions about the availability of copyright-protected works online, we fought hand-in-hand with European civil society to avoid all communications being subjected to interception and arbitrary censorship by automated upload filters. However, by turning tech companies and online services operators into copyright police, the final version of the EU Copyright Directive failed to live up to the expectations of millions of affected users who fought for an Internet in which their speech is not automatically scanned, filtered, weighed, and measured.

EU "Directives" are not automatically applicable. EU member states must "transpose" the directives into national law. The Copyright Directive includes some safeguards to prevent the restriction of fundamental free expression rights, ultimately requiring national governments to balance the rights of users and copyright holders alike. At the EU level, the Commission has launched a Stakeholder Dialogue to support the drafting of guidelines for the application of Article 17, which must be implemented in national laws by June 7, 2021. EFF and other digital rights organizations have a seat at the table, alongside rightsholders from the music and film industries and representatives of big tech companies like Google and Facebook.

During the stakeholder meetings, we made a strong case for preserving users' rights to free speech, making suggestions for averting a race among service providers to over-block user content. We also asked the EU Commission to share the draft guidelines with rights organizations and the public, and allow both to comment on and suggest improvements to ensure that they comply with European Union civil and human rights requirements.

The Commission has partly complied with EFF and its partners' request for transparency and participation. The Commission launched a targeted consultation addressed to members of the EU Stakeholder Group on Article 17. Our response focuses on mitigating the dangerous consequences of the Article 17 experiment by focusing on user rights, specifically free speech, and by limiting the use of automated filtering, which is notoriously inaccurate.

Our main recommendations are:

• Produce a non-exhaustive list of service providers that are excluded from the obligations under the Directive. Service providers not listed might not fall under the Directive's rules, and would have to be evaluated on a case-by-case basis;

• Ensure that the platforms' obligation to show best efforts to obtain rightsholders' authorization and ensure infringing content is not available is a mere due diligence duty and must be interpreted in light of the principles of proportionality and user rights exceptions;

• Recommend that Member States not mandate the use of technology or impose any specific technological solutions on service providers in order to demonstrate "best efforts";

• Establish a requirement to avoid general user (content) monitoring. Spell out that the implementation of Art 17 should never lead to the adoption of upload filters and hence general monitoring of user content;

• State that the mere fact that content recognition technology is used by some companies does not mean that it must be used to comply with Art 17. Quite the opposite is true: automated technologies to detect and remove content based on rightsholders' information may not be in line with the balance sought by Article 17.

• Safeguard the diversity of platforms and not put disproportionate burden on smaller companies, which play an important role in the EU tech ecosystem;

• Establish that content recognition technology cannot assess whether the uploaded content is infringing or covered by a legitimate use. Filter technology may serve as assistants, but can never replace a (legal) review by a qualified human;

• Filter-technology can also not assess whether user content is likely infringing copyright;

• If you believe that filters work, prove it. The Guidance should contain a recommendation to create and maintain test suites if member states decide to establish copyright filters. These suites should evaluate the filters' ability to correctly identify both infringing materials and non-infringing uses. Filters should not be approved for use unless they can meet this challenge;

• Complaint and redress procedures are not enough. Fundamental rights must be protected from the start and not only after content has been taken down;

• The Guidance should address the very problematic relationship between the use of automated filter technologies and privacy rights, in particular the right not to be subject to a decision based solely on automated processing under the GDPR.

The implementation of Art 17 (formerly Article 13) into national laws will have a profound effect on what users can say and share online. The controversial rule, part of the EU's copyright directive approved last year, has the potential to turn tech companies and online services operators into copyright police. It is now up to national Member States to implement the directive and to ensure that user rights and freedom of speech is giving priority over notoriously inaccurate filtering and harmful monitoring of user content.

The initial forays into transposition were catastrophic . Both France and the Netherlands have failed to present a balanced copyright implementation proposal. Now, the Germany government presented launched a public consultation on a draft bill to implement the EU copyright directive. The draft takes a step in the right direction. Options for users to pre-flag uploads as authorized and exceptions for every day uses are a clear added value from a user perspective. However, in its current shape, the draft fails to adequately protect user rights and freedom of expression. It seems inevitable that service providers will use content recognition technologies to monitor all user uploads and privacy rights are not considered at all.

We have therefore recently submitted comments to the German government with recommendations of how to improve the current version. Our message is clear: have the interest of users and freedom of speech in mind rather than solidifying the dominance of big tech platforms that already exist.

With the passage of last year's Copyright Directive, the EU demanded that member states pass laws that reduce copyright infringement by internet users while also requiring that they safeguard the fundamental rights of users (such as the right to free expression) and also the limitations to copyright . These safeguards must include protections for the new EU-wide exemption for commentary and criticism. Meanwhile states are also required to uphold the GDPR, which safeguards users against mass, indiscriminate surveillance, while somehow monitoring everything every user posts to decide whether it infringes copyright .

Serving these goals means that when EU member states turn the Directive into their national laws (the "transposition" process), their governments will have to decide to give more weight to some parts of the Directive, and that courts would have to figure out whether the resulting laws passed constitutional muster while satisfying the requirement of EU members to follow its rules.

The initial forays into transposition were catastrophic. First came France's disastrous proposal , which "balanced" copyright enforcement with Europeans' fundamental rights to fairness, free expression, and privacy by simply ignoring those public rights.

Now, the Dutch Parliament has landed in the same untenable legislative cul-de-sac as their French counterparts, proposing a Made-in-Holland version of the Copyright Directive that omits:

• Legally sufficient protections for users unjustly censored due to false accusations of copyright infringement;

• Legally sufficient protection for users whose work makes use of the mandatory, statutory exemptions for parody and criticism;

• A ban on "general monitoring"-- that is, continuous, mass surveillance;

• Legally sufficient protection for "legitimate uses" of copyright works.

These are not optional elements of the Copyright Directive. These protections were enshrined in the Directive as part of the bargain meant to balance the fundamental rights of Europeans against the commercial interests of entertainment corporations. The Dutch Parliament's willingness to pay mere lip-service to these human rights-preserving measures as legislative inconveniences is a grim harbinger of other EU nations' pending lawmaking, and an indictment of the Dutch Parliament's commitment to human rights.

EFF was pleased to lead a coalition of libraries, human rights NGOs, and users' rights organizations in an open letter to the EU Commission asking them to monitor national implementations that respect human rights.

In April, we followed this letter with a note to the EC's Copyright Stakeholder Dialogue Team , setting out the impossibility of squaring the Copyright Directive with the GDPR's rules protecting Europeans from "general monitoring," and calling on them to direct member-states to create test suites that can evaluate whether companies' responses to their laws live up to their human rights obligations.

Today, we renew these and other demands, and we ask that Dutch Parliamentarians do their job in transposing the Copyright Directive , with the understanding that the provisions that protect Europeans' rights are not mere ornaments, and any law that fails to uphold those provisions is on a collision course with years of painful, costly litigation.

The European Union's controversial new copyright rules are on a collision course with EU data privacy rules. The GDPR guards data protection, privacy, and other fundamental rights in the handling of personal data. Such rights are likely to be affected by an automated decision-making system that's guaranteed to be used, and abused, under Article 17 to find and filter out unauthorized copyrighted material. Here we take a deep dive examining how the EU got here and why Member States should act now to embrace enforcement policies for the Copyright Directive that steer clear of automated filters that violate the GDPR by censoring and discriminating against users.

Platforms Become the New Copyright Police

Article 17 of the EU's Cop yright Directive (formerly Article 13) makes online services liable for user-uploaded content that infringes someone's copyright. To escape liability, online service operators have to show that they made best efforts to obtain rightsholders' authorization and ensure infringing content is not available on their platforms. Further, they must show they acted expeditiously to remove content and prevent its re-upload after being notified by rightsholders.

Prior to passage of the Copyright Directive, user rights advocates alerted lawmakers that operators would have to employ upload filters to keep infringing content off their platforms. They warned that then Article 13 will turn online services into copyright police with special license to scan and filter billions of users' social media posts and videos, audio clips, and photos for potential infringements.

While not everyone agreed about the features of the controversial overhaul of outdated copyright rules, there was little doubt that any automated system for catching and blocking copyright infringement would impact users, who would sometimes find their legitimate posts erroneously removed or blocked. Instead of unreservedly safeguarding user freedoms, the compromise worked out focuses on procedural safeguards to counter over-blocking. Although complaint and redress mechanisms are supposed to offer a quick fix, chances are that censored Europeans will have to join a long queue of fellow victims of algorithmic decision-making and await the chance to plead their case.

Can't See the Wood For the Trees: the GDPR

There's something awfully familiar about the idea of an automated black-box judgment system that weighs user-generated content and has a significant effect on the position of individuals. At recent EU copyright dialogue debates on technical and legal limits of copyright filters, EU data protection rules--which restrict the use of automated decision-making processes involving personal data--were not put on the agenda by the EU officials. Nor were academic experts on the GDPR who have raised this issue in the past (read this analysis by Sophie Stalla-Bourdillon or have a look at this year's CPDP panel on copyright filters ).

Under Article 22 of the GDPR , users have a right "not to be subject to a decision based solely on automated processing, including profiling, which produces legal effects concerning him or her or similarly significantly affects him or her." Save for exceptions, which will be discussed below, this provision protects users from detrimental decisions made by algorithms, such as being turned down for an online loan by a service that uses software, not humans, to accept or reject applicants. In the language of the regulation, the word "solely" means a decision-making process that is totally automated and excludes any real human influence on the outcome.

The Copyright-Filter Test Personal Data

The GDPR generally applies if a provider is processing personal data, which is defined as any information relating to an identified or identifiable natural person ("data subject," Article 4(1) GDPR ). Virtually every post that Article 17 filters analyze will have come from a user who had to create an account with an online service before making their post. The required account registration data make it inevitable that Copyright Directive filters must respect the GDPR. Even anonymous posts will have metadata, such as IP addresses ( C-582/14, Breyer v Germany), which can be used to identify the poster. Anonymization is technically fraught, but even purportedly anonymization will not satisfy the GDPR if the content is connected with a user profile, such as a social media profile on Facebook or YouTube.

Defenders of copyright filters might counter that these filters do not evaluate metadata. Instead, they'll say that filters merely compare uploaded content with information provided by rightsholders. However, the Copyright Directive's algorithmic decision-making is about much more than content-matching. It is the decision whether a specific user is entitled to post a specific work. Whether the user's upload matches the information provided by rightsholders is just a step along the way. Filters might not always use personal data to determine whether to remove content, but the decision is always about what a specific individual can do. In other words: how can monitoring and removing peoples' uploads, which express views they seek to share, not involve a decision about based on that individual?

Moreover, the concept of "personal data" is very broad. The EU Court of Justice (Case C-434/16 Nowak v Data Protection Commissioner ) held that "personal data" covers any information "provided that it 'relates' to the data subject," whether through the content (a selfie uploaded on Facebook), through the purpose (a video is processed to evaluate a person's preferences), or through the effect (a person is treated differently due to the monitoring of their uploads). A copyright filter works by removing any content that matches materials from anyone claiming to be a rightsholder. The purpose of filtering is to decide whether a work will or won't be made public. The consequence of using filtering as a preventive measure is that users' works will be blocked in error, while other (luckier) users' works will not be blocked, meaning the filter creates a significant effect or even discriminates against some users.

Even more importantly, the Guidelines on automated decision-making developed by the WP29 , an official European data protection advisory body (now EDPB ) provide a user-focused interpretation of the requirements for automated individual decision-making. Article 22 applies to decisions based on any type of data. That means that Article 22 of the GDPR applies to algorithms that evaluate user-generated content that is uploaded to a platform.

Adverse Effects

Do copyright filters result in "legal" or "significant" effects as envisioned in the GDPR? The GDPR doesn't define these terms, but the guidelines endorsed by the European Data Protection Board enumerate some "legal effects," including denial of benefits and the cancellation of a contract.

The guidelines explain that even where a filter's judgment does not have legal impact, it still falls within the scope of Article 22 of the GDPR if the decision-making process has the potential to significantly affect the behaviour of the individual concerned, has a prolonged impact on the user, or leads to discrimination against the user. For example, having your work erroneously blocked could lead to adverse financial circumstances or denial of economic opportunities. The more intrusive a decision is and the more reasonable expectations are frustrated, the higher the likelihood for adverse effects.

Consider a takedown or block of an artistic video by a creator whose audience is waiting to see it (they may have backed the creator's crowdfunding campaign). This could result in harming the creator's freedom to conduct business, leading to financial loss. Now imagine a critical essay about political developments. Blocking this work is censorship that impairs the author's right of free expression. There are many more examples that show that adverse effects will often be unavoidable.

Legitimate Grounds for Automated Individual Decision-Making

There are three grounds under which automated decision-making may be allowed under the GDPR's Article 22(2). Users may be subjected to automated decision-making if one of three exceptions apply:

• it's necessary for entering into or performance of a contract,

• authorized by the EU or member state law, or

• based on the user's explicit consent.

Necessity

Copyright filters cannot justly be considered "necessary" under this rule . "Necessity" is narrowly construed in the data protection framework, and can't merely be something that is required under terms of service. Rather, a "necessity" defence for automated decision-making must be in line with the objectives of data protection law, and can't be used if there are more fair or less intrusive measures available. The mere participation in an online service does not give rise to this "necessity," and thus provides no serious justification for automated decision-making.

Authorization

Perhaps proponents of upload filters will argue that they will be authorized by the EU member state's law that implement the Copyright Directive. Whether this is what the directive requires has been ambiguous from the very beginning.

Copyright Directive rapporteur MEP Axel Voss insisted that the Copyright Directive would not require upload filters and dismissed claims to the contrary as mere scare-mongering by digital rights groups. Indeed, after months of negotiation between EU institutions, the final language version of the directive conspicuously avoided any explicit reference to filter technologies. Instead, Article 17 requires "preventive measures" to ensure the non-availability of copyright-protected content and makes clear that its application should not lead to any identification of individual users, nor to the processing of personal data, except where provided under the GDPR.

Even if the Copyright Directive does "authorize" the use of filters, Article 22(2)(b) of the GDPR says that regulatory authorization alone is not sufficient to justify automated decision-making. The authorizing law--the law that each EU Member State will make to implement the Copyright Directive--must include "suitable" measures to safeguard users' rights, freedoms, and legitimate interests. It is unclear whether Article 17 provides enough leeway for member states to meet these standards.

Consent

Without "necessity" or "authorization," the only remaining path for justifying copyright filters under the GDPR is explicit consent by users. For data processing based on automated decision-making, a high level of individual control is required. The GDPR demands that consent be freely given, specific, informed, and unambiguous. As take-it-or-leave-it situations are against the rationale of true consent, it must be assessed whether the decision-making is necessary for the offered service. And consent must be explicit, which means that the user must give an obvious express statement of consent. It seems likely that few users will be interested in consenting to onerous filtering processes.

Article 22 says that even if automated decision-making is justified by user consent or by contractual necessity, platforms must safeguard user rights and freedoms. Users always have the right to obtain "human intervention" from platforms, to express their opinion about the content removal, and to challenge the decision. The GDPR therefore requires platforms to be fully transparent about why and how users' work was taken down or blocked.

Conclusion: Copyright-Filters Must Respect Users' Privacy Rights

The significant negative effects on users subjected to automated decision-making, and the legal uncertainties about the situations in which copyright-filters are permitted, should best be addressed by a policy of legislative self-restraint. Whatever decision national lawmakers take, they should ensure safeguards for users' privacy, freedom of speech and other fundamental rights before any uploads are judged, blocked or removed.

If Member States adopt this line of reasoning and fulfill their legal obligations in the spirit of EU privacy rules, it could choke off any future for EU-mandated, fully-automated upload filters. This will set the groundwork for discussions about general monitoring and filtering obligations in the upcoming Digital Service Act.

(Many thanks to Rossana Ducato for the exchange of legal arguments, which inspired this article).

Thanks to the adoption of a disastrous new Copyright Directive, the European Union is about to require its member states to pass laws requiring online service providers to ensure the unavailability of copyright-protected works. This will likely result in the use of copyright filters that automatically assess user-submitted audio, text, video and still images for potential infringement. The Directive does include certain safeguards to prevent the restriction of fundamental free expression rights, but national governments will need some way to evaluate whether the steps tech companies take to comply meet those standards. That evaluation must be both objective and balanced to protect the rights of users and copyright holders alike.

Quick background for those who missed this development: Last March, the European Parliament narrowly approved the new set of copyright rules , squeaking it through by a mere five votes (afterwards, ten MEPs admitted they'd been confused by the process and had pressed the wrong button).

By far the most controversial measure in the new rules was a mandate requiring online services to use preventive measures to block their users from posting text, photos, videos, or audio that have been claimed as copyrighted works by anyone in the world. In most cases, the only conceivable preventive measure that satisfies this requirement is an upload filter. Such a filter would likely fall afoul of the ban on general monitoring anchored in the 2000 E-Commerce Directive (which is currently under reform) and mirrored in Article 17 of the Copyright Directive.

There are grave problems with this mandate, most notably that it does not provide for penalties for fraudulently or negligently misrepresenting yourself as being the proprietor of a copyrighted work. Absent these kinds of deterrents, the Directive paves the way for the kinds of economic warfare , extortion and censorship against creators that these filters are routinely used for today.

But the problems with filters are not limited to abuse: Even when working as intended, filters pose a serious challenge for both artistic expression and the everyday discourse of Internet users, who use online services for a laundry list of everyday activities that are totally disconnected from the entertainment industry, such as dating, taking care of their health, staying in touch with their families, doing their jobs, getting an education, and participating in civic and political life.

The EU recognized the risk to free expression and other fundamental freedoms posed by a system of remorseless, blunt-edged automatic copyright filters, and they added language to the final draft of the Directive to balance the rights of creators with the rights of the public. Article 17(9) requires online service providers to create effective and expeditious complaint and redress mechanisms for users who have had their material removed or their access disabled.

Far more important than these after-the-fact remedies, though, are the provisions in Article 17(7), which requires that Member States shall ensure that users...are able to rely on limitations and exceptions to copyright, notably quotation, criticism, review and use for the purpose of caricature, parody or pastiche. These free expression protections have special status and will inform the high industry standards of professional diligence required for obtaining licenses and establishing preventive measures (Art 17(4)).

This is a seismic development in European copyright law. European states have historically operated tangled legal frameworks for copyright limitations and exceptions that diverged from country to country. The 2001 Information Society Directive didn't improve the situation: Rather than establishing a set of region-wide limitations and exceptions, the EU offered member states a menu of copyright exceptions and allowed each country to pick some, none, or all of these exceptions for their own laws.

With the passage of the new Copyright Directive, member states are now obliged to establish two broad categories of copyright exceptions: those quotation, criticism, review and caricature, parody or pastiche exceptions. To comply with the Directive, member states must protect those who make parodies or excerpt works for the purpose of review or criticism. Equally importantly, a parody that's legal in, say, France, must also be legal in Germany and Greece and Spain.

Under Article 17(7), users should be able to rely on these exceptions. The protective measures of the Directive--including copyright filters--should not stop users from posting material that doesn't infringe copyright, including works that are legal because they make use of these mandatory parody/criticism exceptions. For avoidance of doubt, Article 17(9) confirms that filters shall in no way affect legitimate uses, such as uses under exceptions or limitations provided for in Union law and Recital 70 calls on member states to ensure that their filter laws do not interfere with exceptions and limitations, in particular those that guarantee the freedom of expression of users.

As EU member states move to transpose the Directive by turning it into national laws, they will need to evaluate claims from tech companies who have developed their own internal filters (such as YouTube's Content ID filter) or who are hoping to sell filters to online services that will help them comply with the Directive's two requirements:

1. To block copyright infringement; and

2. To not block user-submitted materials that do not infringe copyright, including materials that take advantage of the mandatory exceptions in 17(7), as well as additional exceptions that each member state's laws have encoded under the Information Society Directive (for example, Dutch copyright law permits copying without permission for "scientific treatises," but does not include copying for "the demonstration or repair of equipment," which is permitted in Portugal and elsewhere).

Evaluating the performance of these filters will present a major technical challenge, but it's not an unprecedented one.

Law and regulation are no stranger to technical performance standards. Regulators routinely create standardized test suites to evaluate manufacturers' compliance with regulation, and these test suites are maintained and updated based on changes to rules and in response to industry conduct. (In)famously, EU regulators maintained a test suite for evaluating compliance with emissions standards for diesel vehicles, then had to undertake a top-to-bottom overhaul of these standards in the wake of widespread cheating by auto manufacturers.

Test suites are the standard way for evaluating and benchmarking technical systems, and they provide assurances to consumers that the systems they entrust will perform as advertised. Reviewers maintain standard suites for testing the performance of code libraries, computers and subcomponents (such as mass-storage devices and video-cards) and protocols and products, such as 3D graphics rendering programs.

We believe that the EU's guidance to member states on Article 17 implementations should include a recommendation to create and maintain test suites if member states decide to establish copyright filters. These suites should evaluate both the filters' ability to correctly identify infringing materials and non-infringing uses. The filters could also be tested for their ability to correctly identify works that may be freely shared, such as works in the public domain and works that are licensed under permissive regimes such as the Creative Commons licenses

EFF previously sketched out a suite to evaluate filters' ability to comply with US fair use . Though fair use and EU exceptions and limitations are very different concepts, this test suite does reveal some of the challenges of complying with Article 17's requirement the EU residents should be able to rely upon the parody and criticism exceptions it defines.

Notably, these exceptions require that the filter make determinations about the character of a work under consideration: to be able to distinguish excerpting a work to critique it (a protected use) versus excerpting a work to celebrate it (a potentially prohibited use).

For example, a creator might sample a musician's recording in order to criticize the musician's stance on the song's subject matter (one of the seminal music sampling cases turned on this very question ). This new sound file should pass through a filter, even if it detects a match with the original recording, after the filter determines that the creator of the new file intended to criticize the original artist, and that they sampled only those parts of the original recording as were necessary to make the critical point.

However, if another artist sampled the original recording for a composition that celebrated the original artist's musical talent, the filter should detect and block this use, as enthusiastic tribute is not among the limitations and exceptions permitted under the Infosoc Directive , nor those mandated by the Copyright Directive.

This is clearly a difficult programming challenge. Computers are very bad at divining intent and even worse at making subjective determinations about whether the intent was successfully conveyed in a finished work.

However, filters should not be approved for use unless they can meet this challenge. In the decades since the Acuff-Rose sampling decision came down in 1994, musicians around the world have treated its contours as a best practice in their own sampling. A large corpus of music has since emerged that fits this pattern. The musicians who created (and will create) music that hews to the standard--whose contours are markedly similar to those mandated in the criticism/parody language of Article 17--would have their fundamental expression rights as well as their rights to profit from their creative labors compromised if they had to queue up to argue their case through a human review process every time they attempted to upload their work.

Existing case-law among EU member states makes it clear that these kinds of subjective determinations are key to evaluating whether a work is entitled to make use of a limitation or exception in copyright law. For example, the landmark Germania 3 case demands that courts consider a balancing of relevant interests when determining whether a quotation is permissible.

Parody cases require even more subjective determination, with Dutch case law holding that a work can only qualify as a parody if it evokes an existing work, while being noticeably different, and constitutes an expression of humor or mockery. ( Deckmyn v. Vandersteen (C-201/13, 2014) ).

Article 17 was passed amidst an unprecedented controversy over the consequences for the fundamental right to free expression once electronic discourse was subjected to automated judgments handed down by automated systems. The changes made in the run-up to the final vote were intended to ensure a high level of protection for the fundamental rights of European Internet users.

The final Article 17 text offers two different assurances to European Internet users: first, the right to a mechanism for effective and expeditious complaint and redress, and second, Article 17(7) and (4)'s assurance that Europeans are able to rely on their right to undertake quotation, criticism, review and use for the purpose of caricature, parody or pastiche ... in accordance with high industry standards of professional diligence.

The Copyright Directive passed amid unprecedented controversy, and its final drafters promised that Article 17 had been redesigned to protect the innocent as well as punishing the guilty, this being the foundational premise of all fair systems of law. National governments have a duty to ensure that it's no harder to publish legal material than it is to remove illegal material. Streamlining the copyright enforcement system to allow anyone to block the publication of anything, forever, without evidence or oversight presents an obvious risk for those whose own work might be blocked through malice or carelessness, and it is not enough to send those people to argue their case before a tech company's copyright tribunal. If Europeans are to be able to rely upon copyright limitations and exceptions, then they should be assured that their work will be no harder to publish than any other's.

Germany was a major force behind the EU's disgraceful copyright directive passed last year. It is perhaps no surprise that proposed implementation into German law is even more extreme than the directive.

In particular the link tax has been drafted so that it is nearly impossible to refer to a press article without an impossibly expensive licence to use the newspaper's content.

The former Pirate Party MEP Julia Reda has picked out the main bad ideas on Twitter.

Under the German proposals, now up for public consultation, only single words or very short extracts of a press article can be quoted without a license. Specifically, free quotation is limited to:

• the headline
• a small-format preview image with a resolution of 128-by-128 pixels
• a sequence of sounds, images or videos with a duration of up to three seconds

Techdirt explains:

The proposal states that the new ancillary copyright does not apply to hyperlinks, or to private or non-commercial use of press publishers' materials by a single user. However, as we know from the tortured history of the Creative Commons non-commercial license, it is by no means clear what non-commercial means in practice.

Press publishers are quite likely to insist that posting memes on YouTube, Facebook or Twitter -- all undoubtedly commercial in nature -- is not allowed in general under the EU Copyright Directive.

We won't know until top EU courts rule on the details, which will take years. In the meantime, online services will doubtless prefer to err on the side of caution, keen to avoid the risk of heavy fines. It is likely they will configure their automated filters to block any use of press publishers' material that goes beyond the extremely restrictive limits listed above. Moreover, this will probably apply across the EU, not just in Germany, since setting up country-by-country upload filters is more expensive. Far easier to roll out the most restrictive rules across the whole region.

Universities and Science Minister Chris Skidmore has said that the UK will not implement the EU Copyright Directive after the country leaves the EU.

Several companies have criticised the disgraceful EU law, which would hold them accountable for not removing copyrighted content uploaded by users.

EU member states have until 7 June 2021 to implement the new reforms, but the UK will have left the EU by then.

It was Article 13 which prompted fears over the future of memes and GIFs - stills, animated or short video clips that go viral - since they mainly rely on copyrighted scenes from TV and film. Critics noted that Article 13 would make it nearly impossible to upload even the tiniest part of a copyrighted work to Facebook, YouTube, or any other site.

Other articles give the news industry total copyright control of news material that people have previously been widely used in people's blogs and posts commenting on the news.

Prime Minister Boris Johnson criticised the law in March, claiming that it was terrible for the internet.

Google had campaigned fiercely against the changes, arguing they would harm Europe's creative and digital industries and change the web as we know it. YouTube boss Susan Wojcicki had also warned that users in the EU could be cut off from the video platform.

The EU is a bizarre institution. It tries to resolve fairness issues, social ills and international competition rules, all by dreaming up reams of red tape without any consideration of where it will lead.

Well red tape ALWAYS works to the advantage of the largest players who have the scale and wealth to take the onerous and expensive rules in their stride. The smaller players end up being pushed out of the market.

And in the case of the internet the largest players are American (or more latterly Chinese) and indeed they have proven to best able to take advantage of European rules. And of course the smaller players are European and are indeed being pushed out of the market.

Axel Voss is one of the worst examples of European politicians dreaming up red tape that advantages the USA. His latest effort was to push through an upcoming European law that will require social media companies to pre-censor up loaded content for copyright infringement. Of course the only way this can be done practically is to have some mega artificial intelligence effort to try and automatically scan all content for video, text and audio that may be copyrighted. And guess who are the only companies in the world that have the technology to perform such a feat...well the US and Chinese internet giants of course.

Now out of supreme irony Voss himself has had a whinge about the American and Chinese domination of the internet.

In a long whinge about the lack of European presence in the internet industry he commented on Europe's dependence on US companies. If Google decides to switch off all its services tomorrow, I would like to know what will be left in Europe, said Voss, painting a gloomy picture in which there are no search engines, no browsers and no Google Maps.

.. Read the full article from euractiv.com

Poland is challenging the EU's copyright directive in the EU Court of Justice (CJEU) on grounds of its threats to freedom of speech on the internet, Foreign Minister Jacek Czaputowicz said on Friday.

The complaint especially addresses a mechanism obliging online services to run preventive checks on user content even without suspicion of copyright infringement. Czaputowicz explained at a press conference in Warsaw:

Poland has charged the copyright directive to the CJEU, because in our opinion it creates a fundamental threat to freedom of speech on the internet. Such censorship is forbidden both by the Polish constitution and EU law. The Charter of Fundamental Rights (of the European Union - PAP) guarantees freedom of speech.

The directive is to change the way online content is published and monitored. EU members have two years to introduce the new regulations. Against the directive are Poland, Holland, Italy, Finland and Luxembourg.

The EU Council of Ministers has approved the Copyright Directive, which includes the link tax and censorship machines. The legislation was voted through by a majority of EU ministers despite noble opposition from Italy, Luxembourg, Netherlands, Poland, Finland, and Sweden.

As explained by Julia Reda MEP, a majority of 55% of Member States, representing 65% of the population, was required to adopt the legislation. That was easily achieved with 71.26% in favor, so the Copyright Directive will now pass into law.

As the image above shows, several countries voted against adoption, including Italy, Luxembourg, Netherlands, Poland, Finland, and Sweden. Belgium, Estonia, and Slovenia absta ined.

But in the final picture that just wasn't enough, with both Germany and the UK voting in favor, the Copyright Directive is now adopted.

EU member states will now have two years to implement the law, which requires platforms like YouTube to sign licensing agreements with creators in order to use their content. If that is not possible, they will have to ensure that infringing content uploaded by users is taken down and not re-uploaded to their services.

The entertainment lobby will not stop here, over the next two years, they will push for national implementations that ignore users' fundamental rights, comments Julia Reda:

It will be more important than ever for civil society to keep up the pressure in the Member States!

The European Parliament has backed disgraceful copyright laws which will change the nature of the net.

The new rules include holding technology companies responsible for material posted without proper copyright permission. This will destroy the livelihoods of European people making their living from generating content.

The Copyright Directive was backed by 348 MEPs, with 278 against.

It is now up to member states to approve the decision. If they do, they will have two years to implement it once it is officially published.

The two clauses causing the most controversy are known as Article 11 and Article 13.

Article 11 states that websites will either have to pay to use links from news websites or else be banned from linking to or quoting news services.

Article 13 holds larger technology companies responsible for material posted without a copyright licence.

It means they would need to pre-censor content before it is uploaded. Only the biggest US internet companies will have the technology to achieve this automatically, even then technical difficulties in recognising content will results in inevitable over censorship from having to err on the side f caution.

The campaign group Open Knowledge International described it as a massive blow for the internet.

We now risk the creation of a more closed society at the very time we should be using digital advances to build a more open world where knowledge creates power for the many, not the few, said chief executive Catherine Stihler. Skip Twitter post by @Senficon

Dark day for internet freedom: The @Europarl_EN has rubber-stamped copyright reform including #Article13 and #Article11. MEPs refused to even consider amendments. The results of the final vote: 348 in favor, 274 against #SaveYourInternet pic.twitter.com/8bHaPEEUk3 204 Julia Reda (@Senficon) March 26, 2019.

Update: Europe's efforts to curb the internet giants only make them stronger

31st March 2019. See  article from theguardian.com by Kenan Malik

New legislation on copyright will hurt small users and boost tech titans' influence

Websites and businesses across Europe went dark yesterday in protest of disgraceful changes to copyright law being introduced by the European Union.

Ahead of a final vote on the legislation next Tuesday, March 26th, a number of European Wikipedia sites are going dark for the day, blocking all access and directing users to contact their local EU representative to protest the laws. Other major sites, such as Twitch and PornHub, are showing protest banners on their homepages and social media. Meanwhile, any users uploading content to Reddit will be shown this notice: Critics of the Copyright Directive say it could lead to messages like this.

The law in question is the EU Copyright Directive, a long-awaited update to copyright law. Two provisions have been singled out by critics as dangerous to European people's freedom and livehoods.

These are Article 11, which lets publishers charge platforms if they link to their stories (the link tax'), and Article 13, which makes platforms legally responsible for users uploading copyrighted material (the so-called 'upload filter').

Article 13 is particularly dangerous, say critics. It will make all platforms hosting user-generated content legally responsible for users uploading copyrighted content. The only way to stop these uploads, say critics, will be to scan content before its uploaded, leading to the creation of filters that will err on the side of censorship and will be abused by copyright trolls.

Wikipedia said the rules would be a "net loss for free knowledge." Volunteer editors for the German, Czech, Danish, and Slovak Wikipedias have all blacked out their sites for the day.

As well as the website blackouts , more than five million internet users have signed a petition protesting Article 13 . Marches and demonstrations are also planned in European cities across the weekend and on Monday and Tuesday before the final vote.

Update: The latest from MEP Julia Reda

21st March 2019. See tweets from twitter.com

The official version of the #copyright trilogue agreement is online now, translations will follow shortly. Don't get a heart attack when you see #Article13 has been renumbered #Article17, both the old and the new numbers will show up on MEPs' voting lists. http://www.europarl.europa.eu/doceo/document/A-8-2018-0245-AM-271-271_EN.pdf

Our efforts to defeat #Article13 just got a huge boost! Polish @Platforma_org will vote AGAINST the #copyright directive unless #Article13 is deleted! They're the second largest single political party in EPP after @CDU. Thanks @MichalBoni https://twitter.com/MichalBoni/status/1109057398566764544 #SaveYourInternet

At a press conference in Berlin, @AxelVossMdEP confirmed rumours that some press publishers have threatened parliamentarians with bad election coverage if they vote against the #copyright reform. Voss does not consider this problematic. #Article11 #Article13 #SaveYourInternet

Update: Anti censorship hub

22nd March 2019. See  article from avn.com

Pornhub posted a banner at the top of the European version of its site on Thursday, as seen in the image at the top of this page. The discussion forum Reddit204the self-described front page of the internet204and the sprawling online encyclopedia Wikipedia also protested the planned new law, according to a Business Insider report .

The new EU Copyright Directive will be up for its final vote in the week of Mar 25, and like any piece of major EU policy, it has been under discussion for many years and had all its areas of controversy resolved a year ago -- but then German MEP Axel Voss took over as the "rapporteur" (steward) of the Directive and reintroduced the long-abandoned idea of forcing all online services to use filters to block users from posting anything that anyone, anywhere claimed was their copyrighted work.

There are so many obvious deficiencies with adding filters to every message-board, online community, and big platform that the idea became political death, as small- and medium-sized companies pointed out that you can't fix the EU's internet by imposing costs that only US Big Tech firms could afford to pay, thus wiping out all European competition.

So Voss switched tactics, and purged all mention of filters from the Directive, and began to argue that he didn't care how online services guaranteed that their users didn't infringe anyone's copyrights, even copyrights in works that had only been created a few moments before and that no one had ever seen before, ever. Voss said that it didn't matter how billions of user posts were checked, just so long as it all got filtered.

(It's like saying, "I expect you to deliver a large, four-legged African land-mammal with a trunk, tusk and a tail, but it doesn't have to be an elephant -- any animal that fits those criteria will do).

Now, in a refreshingly frank interview, Voss has come clean: the only way to comply with Article 13 will be for every company to install filters.

When asked whether filters will be sufficient to keep Youtube users from infringing copyright, Voss said, "If the platform's intention is to give people access to copyrighted works, then we have to think about whether that kind of business should exist." That is, if Article 13 makes it impossible to have an online platform where the public is allowed to make work available without first having to submit it to legal review, maybe there should just no longer be anywhere for the public to make works available.

Here's what Europeans can do about this:

* Pledge 2019 : make your MEP promise to vote against Article 13. The vote comes just before elections, so MEPs are extremely interested in the issues on voters' minds.

* Save Your Internet : contact your MEP and ask them to protect the internet from this terrible idea.

* Turn out and protest on March 23 , two days ahead of the vote. Protests are planned in cities and towns in every EU member-state.

German Data Privacy Commissioner Ulrich Kelber is also a computer scientist, which makes him uniquely qualified to comment on the potential consequences of the proposed new EU Copyright Directive. The Directive will be voted on at the end of this month, and its Article 13 requires that online communities, platforms, and services prevent their users from committing copyright infringement, rather than ensuring that infringing materials are speedily removed.

In a new official statement on the Directive ( English translation ), Kelber warns that Article 13 will inevitably lead to the use of automated filters, because there is no imaginable way for the organisations that run online services to examine everything their users post and determine whether each message, photo, video, or audio clip is a copyright violation.

Kelber goes on to warn that this will exacerbate the already dire problem of market concentration in the tech sector, and expose Europeans to particular risk of online surveillance and manipulation.

That's because under Article 13, Europe's online companies will be required to block all infringement , even if they are very small and specialised (the Directive gives an online community three years' grace period before it acquires this obligation, less time if the service grosses over ?5m/year). These small- and medium-sized European services (SMEs) will not be able to afford to license the catalogues of the big movie, music, and book publishers, so they'll have to rely on filters to block the unlicensed material.

But if a company is too small to afford licenses, it's also too small to build filters. Google's Content ID for YouTube cost a reported ?100 million to build and run, and it only does a fraction of the blocking required under Article 13. That means that they'll have to buy filter services from someone else. The most likely filter vendors are the US Big Tech companies like Google and Facebook, who will have to build and run filters anyway, and could recoup their costs by renting access to these filters to smaller competitors.

Another possible source of filtering services is companies that sell copyright enforcement tools like Audible Magic ( supplier to Big Tech giants like Facebook ), who have spent lavishly to lobby in favour of filters (along with their competitors ).

As Kelber explains, this means that Europeans who use European services in the EU will nevertheless likely have every public communication they make channeled into offshore tech companies' servers for analysis. These European services will then have to channel much of their revenues to the big US tech companies or specialist filter vendors.

So Article 13 guarantees America's giant companies a permanent share of all small EU companies' revenues and access to an incredibly valuable data-stream generated by all European discourse, conversation, and expression. These companies have a long track record of capitalising on users' personal data to their advantage, and between that advantage and the revenues they siphon off of their small European competitors, they are likely to gain permanent dominance over Europe's Internet.

Kelber says that this is the inevitable consequence of filters, and has challenged the EU to explain how Article 13's requirements could be satisfied without filters. He's called for "a thoughtful overhaul" of the bill based on "data privacy considerations," describing the market concentration as a "clear and present danger."

We agree, and so do millions of Europeans. In fact, the petition against Article 13 has attracted more signatures than any other petition in European history and is on track to be the most popular petition in the history of the human race within a matter of days.

With less than a month to go before the final vote in the European Parliament on the new Copyright Directive, Kelber's remarks couldn't be more urgent. Subjecting Europeans' communications to mass commercial surveillance and arbitrary censorship is bad for human rights and free expression, but as Kelber so ably argues, it's also a disaster for competition.

Take Action: Stop Article 13

In the evening of February 13, negotiators from the European Parliament and the Council concluded the trilogue negotiations with a final text for the new EU Copyright Directive.

For two years we've debated different drafts and versions of the controversial Articles 11 and 13. Now, there is no more ambiguity: This law will fundamentally change the internet as we know it -- if it is adopted in the upcoming final vote. But we can still prevent that!

Please click the links to take a look at the final wording of Article 11 and Article 13 . Here's my summary:

Article 13: Upload filters

Parliament negotiator Axel Voss accepted the deal between France and Germany I laid out in a recent blog post :

• Commercial sites and apps where users can post material must make "best efforts" to preemptively buy licences for anything that users may possibly upload -- that is: all copyrighted content in the world. An impossible feat.

• In addition, all but very few sites (those both tiny and very new) will need to do everything in their power to prevent anything from ever going online that may be an unauthorised copy of a work that a rightsholder has registered with the platform. They will have no choice but to deploy upload filters , which are by their nature both expensive and error-prone .

• Should a court ever find their licensing or filtering efforts not fierce enough, sites are directly liable for infringements as if they had committed them themselves. This massive threat will lead platforms to over-comply with these rules to stay on the safe side, further worsening the impact on our freedom of speech.

Article 11: The "link tax"

The final version of this extra copyright for news sites closely resembles the version that already failed in Germany -- only this time not limited to search engines and news aggregators, meaning it will do damage to a lot more websites.

• Reproducing more than "single words or very short extracts" of news stories will require a licence. That will likely cover many of the snippets commonly shown alongside links today in order to give you an idea of what they lead to. We will have to wait and see how courts interpret what "very short" means in practice -- until then, hyperlinking (with snippets) will be mired in legal uncertainty.

• No exceptions are made even for services run by individuals, small companies or non-profits, which probably includes any monetised blogs or websites.

Other provisions

The project to allow Europeans to conduct Text and Data Mining , crucial for modern research and the development of artificial intelligence, has been obstructed with too many caveats and requirements. Rightholders can opt out of having their works datamined by anyone except research organisations.

Authors' rights: The Parliament's proposal that authors should have a right to proportionate remuneration has been severely watered down: Total buy-out contracts will continue to be the norm.

Minor improvements for access to cultural heritage : Libraries will be able to publish out-of-commerce works online and museums will no longer be able to claim copyright on photographs of centuries-old paintings.

 

How we got here Former digital Commissioner Oettinger proposed the law

The history of this law is a shameful one. From the very beginning , the purpose of Articles 11 and 13 was never to solve clearly-defined issues in copyright law with well-assessed measures, but to serve powerful special interests , with hardly any concern for the collateral damage caused.

In the relentless pursuit of this goal , concerns by independent academics , fundamental rights defenders , independent publishers , startups and many others were ignored. At times, confusion was spread about crystal-clear contrary evidence . Parliament negotiator Axel Voss defamed the unprecedented protest of millions of internet users as " built on lies ".

In his conservative EPP group, the driving force behind this law, dissenters were marginalised . The work of their initially-appointed representative was thrown out after the conclusions she reached were too sensible. Mr Voss then voted so blindly in favour of any and all restrictive measures that he was caught by surprise by some of the nonsense he had gotten approved. His party, the German CDU/CSU, nonchalantly violated the coalition agreement they had signed (which rejected upload filters), paying no mind to their own minister for digital issues .

It took efforts equally herculean and sisyphean across party lines to prevent the text from turning out even worse than it now is.

In the end, a closed-door horse trade between France and Germany was enough to outweigh the objections... so far.

What's important to note, though: It's not "the EU" in general that is to blame -- but those who put special interests above fundamental rights who currently hold considerable power. You can change that at the polls! The anti-EU far right is trying to seize this opportunity to promote their narrow-minded nationalist agenda -- when in fact without the persistent support of the far-right ENF Group (dominated by the Rassemblement/Front National ) the law could have been stopped in the crucial Legal Affairs Committee and in general would not be as extreme as it is today.

 

We can still stop this law

Our best chance to stop the EU copyright law: The upcoming Parliament vote.

The Parliament and Council negotiators who agreed on the final text now return to their institutions seeking approval of the result. If it passes both votes unchanged, it becomes EU law , which member states are forced to implement into national law.

In both bodies, there is resistance.

The Parliament's process starts with the approval by the Legal Affairs Committee -- which is likely to be given on Monday, February 18.

Next, at a date to be announced, the EU member state governments will vote in the Council. The law can be stopped here either by 13 member state governments or by any number of governments who together represent 35% of the EU population ( calculator ). Last time, 8 countries representing 27% of the population were opposed. Either a large country like Germany or several small ones would need to change their minds: This is the less likely way to stop it.

Our best bet: The final vote in the plenary of the European Parliament , when all 751 MEPs, directly elected to represent the people, have a vote. This will take place either between March 25 and 28, on April 4 or between April 15 and 18. We've already demonstrated last July that a majority against a bad copyright proposal is achievable .

The plenary can vote to kill the bill -- or to make changes , like removing Articles 11 and 13. In the latter case, it's up to the Council to decide whether to accept these changes (the Directive then becomes law without these articles) or to shelve the project until after the EU elections in May, which will reshuffle all the cards.

This is where you come in

The final Parliament vote will happen mere weeks before the EU elections . Most MEPs -- and certainly all parties -- are going to be seeking reelection. Articles 11 and 13 will be defeated if enough voters make these issues relevant to the campaigns. ( Here's how to vote in the EU elections -- change the language to one of your country's official ones for specific information)

It is up to you to make clear to your representatives: Their vote on whether to break the internet with Articles 11 and 13 will make or break your vote in the EU elections. Be insistent -- but please always stay polite.

• Look up your representatives' voting behavior at SaveYourInternet.eu

• Call or visit your MEPs' offices (in Brussels, Strasbourg or their local constituency)

• Visit campaign and party events and bring up the topic

• Sign the record-breaking petition and spread the word, if you haven't yet

Together, we can still stop this law.

Update: What next?

27th February 2019. Via Julia Reda on Twitter

For the record the draft legislation was approved by 16 votes to 9 with no abstentions.

The final vote in Parliament will take place during the 25-28th March II plenary session.

Article 13 is the on-again / off-again controversial proposal to make virtually every online community, service, and platform legally liable for any infringing material posted by their users, even very briefly, even if there was no conceivable way for the online service provider to know that a copyright infringement had taken place.

This will require unimaginable sums of money to even attempt, and the attempt will fail. The outcome of Article 13 will be a radical contraction of alternatives to the U.S. Big Tech platforms and the giant media conglomerates. That means that media companies will be able to pay creators less for their work, because creators will have no alternative to the multinational entertainment giants.

Throwing Creators Under the Bus

The media companies lured creators' groups into supporting Article 13 by arguing that media companies and the creators they distribute have the same interests. But in the endgame of Article 13, the media companies threw their creator colleagues under the bus , calling for the deletion of clauses that protect artists' rights to fair compensation from media companies, prompting entirely justifiable howls of outrage from those betrayed artists' rights groups.

But the reality is that Article 13 was always going to be bad for creators. At best, all Article 13 could hope for was to move a few euros from Big Tech's balance-sheet to Big Content's balance-sheet (and that would likely be a temporary situation). Because Article 13 would reduce the options for creators by crushing independent media and tech companies, any windfalls that media companies made would go to their executives and shareholders, not to the artists who would have no alternative but to suck it up and take what they're offered.

After all: when was the last time a media company celebrated a particularly profitable year by increasing their royalty rates?

It Was Always Going to Be Filters

The initial versions of Article 13 required companies to build copyright filters, modeled after YouTube's "Content ID" system: YouTube invites a select group of trusted rightsholders to upload samples of works they claim as their copyright, and then blocks (or diverts revenue from) any user's video that seems to match these copyright claims.

There are many problems with this system. On the one hand, giant media companies complain that they are far too easy for dedicated infringers to defeat; and on the other hand, Content ID ensnares all kinds of legitimate forms of expression, including silence , birdsong , and music uploaded by the actual artist for distribution on YouTube . Sometimes, this is because a rightsholder has falsely claimed copyrights that don't belong to them; sometimes, it's because Content ID generated a "false positive" (that is, made a mistake); and sometimes it's because software just can't tell the difference between an infringing use of a copyrighted work and a use that falls under "fair dealing," like criticism, commentary, parody, etc. No one has trained an algorithm to recognise parody, and no one is likely to do so any time soon (it would be great if we could train humans to reliably recognise parody!).

Copyright filters are a terrible idea. Google has spent a reported $100 million (and counting) to build a very limited copyright filter that only looks at videos and only blocks submissions from a select group of pre-vetted rightsholders. Article 13 covers all possible copyrighted works: text, audio, video, still photographs, software, translations. And some versions of Article 13 have required platforms to block infringing publications of every copyrighted work, even those that no one has told them about: somehow, your community message-board for dog-fanciers is going to have to block its users from plagiarising 50-year-old newspaper articles, posts from other message-boards, photos downloaded from social media, etc. Even the milder "compromise" versions of Article 13 required online services to block publication of anything they'd been informed about, with dire penalties for failing to honour a claim, and no penalties for bogus claims.

But even as filters block things that aren't copyright infringement, they still allow dedicated infringers to operate with few hindrances. That's because filters use relatively simple, static techniques to inspect user uploads, and infringers can probe the filters' blind-spots for free, trying different techniques until they hit on ways to get around them. For example, some image filters can be bypassed by flipping the picture from left to right , or rendering it in black-and-white instead of color. Filters are "black boxes" that can be repeatedly tested by dedicated infringers to see what gets through.

For non-infringers -- the dolphins caught in copyright's tuna-nets -- there is no underground of tipsters who will share defeat-techniques to help get your content unstuck. If you're an AIDS researcher whose videos have been falsely claimed by AIDS deniers in order to censor them, or police brutality activists whose bodycam videos have been blocked by police departments looking to evade criticism, you are already operating at the limit of your abilities, just pursuing your own cause. You can try to become a filter-busting expert in addition to your research, activism, or communications, but there are only so many hours in a day, and the overlap between people with something to say and people who can figure out how to evade overzealous (or corrupted) copyright filters just isn't very large.

All of this put filters into such bad odor that mention of them was purged from Article 13, but despite obfuscation , it was clear that Article 13's purpose was to mandate filters: there's just no way to imagine that every tweet, Facebook update, message-board comment, social media photo, and other piece of user-generated content could be evaluated for copyright compliance without an automated system. And once you make online forums liable for their users' infringement, they have to find some way to evaluate everything their users post.

Just Because Artists Support Media Companies, It Doesn't Mean Media Companies Support Artists

Spending hundreds of millions of euros to build filters that don't stop infringers but do improperly censor legitimate materials (whether due to malice, incompetence, or sloppiness) will not put any money in artists' pockets.

Which is not to say that these won't tilt the balance towards media companies (at least for a while). Because filters will always fail at least some of the time, and because Article 13 doesn't exempt companies from liability when this happens, Big Tech will have to come to some kind of accommodation with the biggest media companies -- Get Out Of Jail cards, along with back-channels that media companies can use to get their own material unstuck when it is mistakenly blocked by a filter. (It's amazing how often one part of a large media conglomerate will take down its own content, uploaded by another part of the same sprawling giant.)

But it's pretty naive to imagine that transferring money from Big Tech to Big Content will enrich artists. Indeed, since there's no way that smaller European tech companies can afford to comply with Article 13, artists will have no alternative but to sign up with the major media companies, even if they don't like the deal they're offered.

Smaller companies play an important role today in the EU tech ecosystem. There are national alternatives to Instagram, Google, and Facebook that outperform U.S. Big Tech in their countries of origin. These will not survive contact with Article 13. Article 13's tiny exemptions for smaller tech companies were always mere ornaments, and the latest version of Article 13 renders them useless .

Smaller tech companies will also be unable to manage the inevitable flood of claims by copyright trolls and petty grifters who see an opportunity.

Smaller media companies -- often run by independent artists to market their own creations, or those of a few friends -- will likewise find themselves without a seat at the table with Big Tech, whose focus will be entirely on keeping the media giants from using Article 13's provisions to put them out of business altogether.

Meanwhile, "filters for everything" will be a bonanza for fraudsters and crooks who prey on artists. Article 13 will force these systems to err on the side of over-blocking potential copyright violations, and that's a godsend for blackmailers , who can use bogus copyright claims to shut down artists' feeds, and demand money to rescind the claims. In theory, artists victimised in this way can try to get the platforms to recognise the scam, but without the shelter of a big media company with its back-channels into the big tech companies, these artists will have to get in line behind millions of other people who have been unjustly filtered to plead their case.

If You Think Big Tech Is Bad Now...

In the short term, Article 13 tilts the field toward media companies, but that advantage will quickly evaporate.

Without the need to buy or crush upstart competitors in Europe, the American tech giants will only grow bigger and harder to tame. Even the aggressive antitrust work of the European Commission will do little to encourage competition if competing against Big Tech requires hundreds of millions for copyright compliance as part of doing business -- costs that Big Tech never had to bear while it was growing, and that would have crushed the tech companies before they could grow.

Ten years after Article 13 passes, Big Tech will be bigger than ever and more crucial to the operation of media companies. The Big Tech companies will not treat this power as a public trust to be equitably managed for all: they will treat it as a commercial advantage to be exploited in every imaginable way. When the day comes that FIFA or Universal or Sky needs Google or Facebook or Apple much more than the tech companies need the media companies, the tech companies will squeeze, and squeeze, and squeeze.

This will, of course, harm the media companies' bottom line. But you know who else it will hurt? Artists.

Because media giants, like other companies who have a buyer's market for their raw materials -- that is, art and other creative works -- do not share their windfalls with their suppliers, but they absolutely expect their suppliers to share their pain.

When media companies starve, they take artists with them. When artists have no other option, the media companies squeeze them even harder .

What Is To Be Done?

Neither media giants nor tech giants have artists' interests at heart.

Both kinds of company are full of people who care about artists, but institutionally, they act for their shareholders, and every cent they give to an artist is a cent they can't return to those investors.

One important check on this dynamic is competition. Antitrust regulators have many tools at their disposal, and those tools have been largely idle for more than a generation. Companies have been allowed to grow by merger, or by acquiring nascent competitors, leaving artists with fewer media companies and fewer tech companies, which means more chokepoints where they are shaken down for their share of the money from their work.

Another important mechanism could be genuine copyright reform, such as re-organizing the existing regulatory framework for copyright, or encouraging new revenue-sharing schemes such as voluntary blanket licenses, which could allow artists to opt into a pool of copyrights in exchange for royalties.

Any such scheme must be designed to fight historic forms of corruption, such as collecting societies that unfairly share out license payments, or media companies that claim these. That's the sort of future-proof reform that the Copyright Directive could have explored, before it got hijacked by vested interests.

In the absence of these policies, we may end up enriching the media companies, but not the artists whose works they sell. In an unfair marketplace, simply handing more copyrights to artists is like giving your bullied kid extra lunch-money: the bullies will just take the extra money, too, and your kid will still go hungry.

Artists Should Be On the Side of Free Expression

It's easy to focus on media and art when thinking about Article 13, but that's not where its primary effect will be felt.

The platforms that Article 13 targets aren't primarily entertainment systems: they are used for everything, from romance to family life, employment to entertainment, health to leisure, politics and civics, and more besides.

Copyright filters will impact all of these activities, because they will all face the same problems of false-positives, censorship, fraud and more.

The arts has always championed free expression for all , not just for artists. Big Tech and Big Media already exert enormous control over our public and civic lives. Dialing that control up is bad for all of us, not just those of us in the arts.

Artists and audiences share an interest in promoting the fortunes of artists: people don't buy books or music or movies because they want to support media companies, they do it to support creators. As always, the right side for artists to be on is the side of the public: the side of free expression, without corporate gatekeepers of any kind.

Take Action Stop Article 13

Last week's publication of the final draft of the new EU Copyright Directive baffled and infuriated almost everyone, including the massive entertainment companies that lobbied for it in the first place; the artists' groups who endorsed it only to have their interests stripped out of the final document; and the millions and millions of Europeans who had publicly called on lawmakers to fix grave deficiencies in the earlier drafts, only to find these deficiencies made even worse .

Take Action: Stop Article 13

Thankfully, Europeans aren't taking this lying down. With the final vote expected to come during the March 25-28 session, mere weeks before European elections, European activists are pouring the pressure onto their Members of the European Parliament (MEPs), letting them know that their vote on this dreadful mess will be on everyone's mind during the election campaigns.

The epicenter of the uprising is Germany, which is only fitting, given that German MEP Axel Voss is almost singlehandedly responsible for poisoning the Directive with rules that will lead to mass surveillance and mass censorship, not to mention undermining much of Europe's tech sector.

The German Consumer Association were swift to condemn the Directive, stating : "The reform of copyright law in this form does not benefit anyone, let alone consumers. MEPs are now obliged to do so. Since the outcome of the trilogue falls short of the EU Parliament's positions at key points, they should refuse to give their consent."

A viral video of Axel Voss being confronted by activists has been picked up by politicians campaigning against Voss's Christian Democratic Party in the upcoming elections, spreading to Germany's top TV personalities, like Jan Böhmermann.

Things are just getting started. On Saturday, with just two days of organizing, hundreds of Europeans marched on the streets of Cologne against Article 13. A day of action --March 23, just before the first possible voting date for MEPs--is being planned, with EU-wide events.

In the meantime, the petition to save Europe from the Directive --already the largest in EU history--keeps racking up more signatures, and is on track to be the largest petition in the history of the world.

Take Action : Stop Article 13

The Council of the EU headed by Donald Tusk has just adopted as the common position, the deal struck by France and Germany on the controversial EU Copyright Directive that was leaked earlier this week .

While Italy, Poland, the Netherlands, Sweden, Finland and Luxembourg maintained their opposition to the text and were newly joined by Malta and Slovakia, Germany's support of the "compromise" secretly negotiated with France over the last weeks has broken the previous deadlock .

This new Council position is actually more extreme than previous versions, requiring all platforms older than 3 years to automatically censor all their users' uploads, and putting unreasonable burdens even on the newest companies.

The German Conservative--Social Democrat government is now in blatant violation of its own coalition agreement , which rejects upload filters against copyright infringement as disproportionate. This breach of coalition promises will not go down well with many young voters just ahead of the European elections in May. Meanwhile, prominent members of both German government parties have joined the protests against upload filters.

The deal in Council paves the way for a final round of negotiations with the Parliament over the course of next week, before the entire European Parliament and the Council vote on the final agreement. It is now up to you to contact your MEPs, call their offices in their constituencies and visit as many of their election campaign events as you can! Ask them to reject a copyright deal that will violate your rights to share legal creations like parodies and reviews online, and includes measures like the link tax that will limit your access to the news and drive small online newspapers out of business.

Right before the European elections, your voices cannot be ignored! Join the over 4.6 million signatories to the largest European petition ever and tell your representatives: If you break the Internet and accept Article 13, we won't reelect you!

Contrary to some reports A rticle 13 was not shelved solely because EU governments listened to the unprecedented public opposition and understood that upload filters are costly, error-prone and threaten fundamental rights.

Without doubt, the consistent public opposition contributed to 11 member state governments voting against the mandate, instead of just 6 last year, but ultimately the reform hinges on agreement between France and Germany , who due to their size can make or break blocking minorities. The deadlock is the direct result of their disagreement, which was not about whether to have upload filters at all; they just couldn't  agree on exactly who should be forced to install those faulty filters :

The deadlock hinged on a disagreement between France and Germany

• France's position: Article 13 is great and must apply to all platforms, regardless of size . They must demonstrate that they have done all they possibly could to prevent uploads of copyrighted material. In the case of small businesses, that may or may not mean using upload filters -- ultimately, a court would have to make that call . (This was previously the majority position among EU governments , supported by France, before Italy's newly elected government retracted their support for Article 13 altogether.)

• Germany's position: Article 13 is great, but it should not apply to everyone. Companies with a turnover below ?20 million per year should be excluded outright, so as not to harm European internet startups and SMEs. (This was closer to the European Parliament's current position , which calls for the exclusion of companies with a turnover below ?10 million and fewer than 50 employees.)

What brought France and Germany together:

Making Article 13 even worse In the Franco-German deal , which leaked today, Article 13 does apply to all for-profit platforms. Upload filters must be installed by everyone except those services which fit all three of the following extremely narrow criteria:

• Available to the public for less than 3 years

• Annual turnover below ? 10 million

• Fewer than 5 million unique monthly users

Countless apps and sites that do not meet all these criteria would need to install upload filters, burdening their users and operators, even when copyright infringement is not at all currently a problem for them. Some examples:

• Discussion boards on for-profit sites, such as the Ars Technica or Heise.de forums (older than 3 years)

• Patreon , a platform with the sole purpose of helping authors get paid (fails to meet any of the three criteria)

• Niche social networks like GetReeled , a platform for anglers (well below 5 million users, but older than 3 years)

• Small European competitors to larger US brands like wykop, a Polish news sharing platform similar to reddit (well below ? 10 million turnover, bur may be above 5 million users depending on the calculation method)

On top of that, even the smallest and newest platforms, which do meet all three criteria , must still demonstrate they have undertaken " best efforts " to obtain licenses from rightholders such as record labels, book publishers and stock photo databases for anything their users might possibly upload -- an impossible task . In practice, all sites and apps where users may upload material will likely be forced to accept any license a rightholder offers them , no matter how bad the terms, and no matter whether the y actually want their copyrighted material to be available on the platform or not , to avoid the massive legal risk of coming in conflict with Article 13. In summary: France's and Germany's compromise on Article 13 still calls for nearly everything we post or share online to require prior permission by "censorship machines" , algorithms that are fundamentally unable to distinguish between copyright infringement and legal works such as parody and critique. It would change the web from a place where we can all freely express ourselves into one where big corporate rightholders are the gatekeepers of what can and can't be published. It would allow these rightholders to bully any for-profit site or app that includes an upload function. European innovation on the web would be discouraged by the new costs and legal risks for startups -- even if they only apply when platforms become successful, or turn 3 years old. Foreign sites and apps would be incentivised to just geoblock all EU users to be on the safe side.

Now everything hinges on the European Parliament

With this road block out of the way, the trilogue negotiations to finish the new EU copyright law are back on. With no time to lose, there will be massive pressure to reach an overall agreement within the next few days and pass the law in March or April. The most likely next steps will be a rubber-stamping of the new Council position cooked up by Germany and France on Friday, 8 February, and a final trilogue on Monday, 11 February.
MEPs, most of whom are fighting for re-election, will get one final say. Last September, a narrow majority for Article 13 could only be found in the Parliament after a small business exception was included that was much stronger than the foul deal France and Germany are now proposing -- but I don't have high hopes that Parliament negotiator Axel Voss will insist on this point. Whether MEPs will reject this harmful version of Article 13 (like they initially did last July) or bow to the pressure will depend on whether all of us make clear to them: If you break the internet and enact Article 13, we won't re-elect you.

Update: Now made even worse

6th February 2019. See  article from eff.org by Cory Doctorow

As the German Government Abandons Small Businesses, the Worst Parts of the EU Copyright Directive Come Roaring Back, Made Even Worse

After the last-minute collapse of negotiations over the new EU Copyright Directive , things have only gone from bad to worse for the beleaguered (but deadly and far-reaching) internet regulation.

Under the proposal, online platforms would have to spend hundreds of millions of euros on algorithmic copyright filters that would compare everything users tried to post with a database of supposedly copyrighted works, which anyone could add anything to, and block any suspected matches. This would snuff out all the small EU competitors to America's Big Tech giants, and put all Europeans' communications under threat of arbitrary censorship by balky, unaccountable, easily abused algorithms.

The proposal also lets newspapers decide who can link to their sites, and charge for the right to do so, in order to transfer some trifling sums from Big Tech to giant news conglomerates, while crushing smaller tech companies and marginalising smaller news providers.

With EU elections looming, every day that passes without resumed negotiations puts the Directive further and further away from any hope of being voted on in this Parliament (and the next Parliament is likely to have a very different composition, making things even more uncertain). Already, it would take heroic measures to take any finalised agreement into legislation: just the deadlines for translation, expert review, etc, make it a near impossibility. Within a couple of weeks, there will be no conceivable way to get the Directive voted on before the elections.

That's why it's so important that opposition is continuing to mount for the Directive, and it certainly is.

Last week, the German Minister of Justice agreed to receive a petition signed by more than 4.5 million Europeans opposing the Directive, the largest petition in European history, and a close second to the largest-ever internet petition.

This week, the Association of European Research Libraries came out against the Directive, saying that the "premises both Articles are built on are fundamentally wrong" and calling on negotiators to "delete Articles 11 and 13 from the proposal."

Update: 89 organisations call for the scrpping of the link tax and censorship machines

See open letter from edri.org

Your Excellency Deputy Ambassador,
Dear European Commission Vice-President Andrus Ansip
Dear MEPs Voss, Adinolfi, Boutonnet, Cavada, Dzhambazki, Geringer de Oedenberg, Joulaud, Mastálka, Reda, Stihler,

We are writing you on behalf of business organisations, civil society organisations, creators, academics, universities, public libraries, research organisations and libraries, startups, software developers, EU online platforms, and Internet Service Providers.

Taking note of the failure of the Council to find a majority for a revised negotiation mandate on Friday 18 January, we want to reiterate our position that the manifest flaws in Articles 11 and 13 of the proposal for a Copyright Directive in the Digital Single Market constitute insurmountable stumbling blocks to finding a balanced compromise on the future of Copyright in the European Union. Despite more than two years of negotiations, it has not been possible for EU policy makers to take the serious concerns of industry, civil society, academics, and international observers such as the UN special rapporteur on freedom of expression into account, as the premises both Articles are built on are fundamentally wrong.

In light of the deadlock of the negotiations on Articles 11 and 13, as well as taking into consideration the cautious stance of large parts of the creative industries, we ask you to delete Articles 11 and 13 from the proposal. This would allow for a swift continuation of the negotiations, while the issues that were originally intended to be addressed by Articles 11 and 13 could be tackled in more appropriate legal frameworks than this Copyright Directive.

We hope that you will take our suggestion on board when finalising the negotiations and put forward a balanced copyright review that benefits from wide stakeholder support in the European Union.

Yours sincerely,

Europe 1. European Digital Rights (EDRi) 2. Allied for Startups 3. Civil Liberties Union for Europe (Liberties) 4. Copyright for Creativity (C4C) 5. Create.Refresh 6. European Bureau of Library, Information and Documentation Associations (EBLIDA) 7. European Internet Services Providers Association (EuroISPA) 8. European Network for Copyright in Support of Education and Science (ENCES) 9. European University Association (EUA) 10. Ligue des Bibliothèques Européennes de Recherche -- Association of European Research Libraries (LIBER) 11. Open State Foundation 12. Scholarly Publishing and Academic Resources Coalition Europe (SPARC Europe) Austria 13. epicenter.works -- for digital rights 14. Digital Society 15. Initiative für Netzfreiheit (IfNf) 16. Internet Service Providers Austria (ISPA Austria) Belgium 17. FusionDirectory 18. Opensides 19. SA&S -- Samenwerkingsverband Auteursrecht & Samenleving (Partnership Copyright & Society) Bulgaria 20. BlueLink Foundation Czech Republic 21. Iuridicum Remedium (IuRe) 22. Seznam.cz Denmark 23. IT-Political Association of Denmark Estonia 24. Wikimedia Eesti Finland 25. Electronic Frontier Finland (EFFI) 26. Finnish Federation for Communications and Teleinformatics (FiCom) France 27. April 28. Conseil National du Logiciel Libre (CNLL) 29. NeoDiffusion 30. Renaissance Numérique 31. Uni-Deal 32. Wikimédia France Germany 33. Bundesverband Deutsche Startups 34. Chaos Computer Club 35. Deutscher Bibliotheksverband e.V. (dbv) 36. Digitalcourage e.V. 37. Digitale Gesellschaft e.V. 38. eco -- Association of the Internet Industry 39. Factory Berlin 40. Förderverein Informationstechnik und Gesellschaft (FITUG e.V.) 41. Initiative gegen ein Leistungsschutzrecht (IGEL) 42. Silicon Allee 43. Wikimedia Deutschland Greece 44. Open Technologies Alliance -- GFOSS (Greek Free Open Source Software Society) 45. Homo Digitalis Italy 46. Hermes Center for Transparency and Digital Human Rights 47. Roma Startup 48. Associazione per la Libertà nella Comunicazione Elettronica Interattiva (ALCEI) Luxembourg 49. Frënn vun der Ënn Netherlands 50. Bits of Freedom (BoF) 51. Dutch Association of Public Libraries (VOB) 52. Vrijschrift Poland 53. Centrum Cyfrowe Foundation 54. ePanstwo Foundation 55. Startup Poland 56. ZIPSEE Digital Poland Portugal 57. Associação D3 -- Defesa dos Direitos Digitais (D³) 58. Associação Nacional para o Software Livre (ANSOL) Romania 59. APADOR-CH (Romanian Helsinki Committee) 60. Association for Technology and Internet (ApTI) Slovakia 61. Sapie.sk Slovenia 62. Digitas Institute 63. Forum za digitalno druzbo (Digital Society Forum) Spain 64. Asociación de Internautas 65. Grupo 17 de Marzo 66. MaadiX 67. Rights International Spain 68. Xnet Sweden 69. Dataskydd.net 70. Föreningen för Digitala Fri- och Rättigheter (DFRI) United Kingdom 71. Coalition for a Digital Economy (COADEC) 72. Open Rights Group (ORG) International 73. Alternatif Bilisim Dernegi (Alternatif Bilisim) (Turkey) 74. ARTICLE 19 75. Association for Progressive Communications (APC) 76. Center for Democracy & Technology (CDT) 77. COMMUNIA Association 78. Derechos Digitales (Latin America) 79. Electronic Frontier Foundation (EFF) 80. Electronic Information for Libraries (EIFL) 81. Index on Censorship 82. International Federation of Library Associations and Institutions (IFLA) 83. Israel Growth Forum (Israel) 84. My Private Network 85. Open Knowledge International 86. OpenMedia 87. SHARE Foundation (Serbia) 88. SumOfUs 89. World Wide Web Foundation

The European Council has firmly rejected the negotiating mandate that was supposed to set out Member States' position ahead of what was supposed to be the final negotiation round with the European Parliament. National governments failed to agree on a common position on the two most controversial articles, Article 11, also known as the Link Tax, and Article 13, which would require online platforms to use upload filters in an attempt to prevent copyright infringement before it happens.

A total of 11 countries voted against the compromise text proposed by the Romanian Council presidency earlier this week: Germany, Belgium, the Netherlands, Finland and Slovenia, who already opposed a previous version of the directive, as well as Italy, Poland, Sweden, Croatia, Luxembourg and Portugal. With the exception of Portugal and Croatia, all of these governments are known for thinking that either Article 11 or Article 13, respectively, are insufficiently protective of users' rights. At the same time, some rightsholder groups who are supposed to benefit from the Directive are also turning their backs on Article 13.

This surprising turn of events does not mean the end of Link Tax or censorship machines, but it does make an adoption of the copyright directive before the European elections in May less likely. The Romanian Council presidency will have the chance to come up with a new text to try to find a qualified majority, but with opposition mounting on both sides of the debate, this is going to be a difficult task indeed.

The outcome of today's Council vote also shows that public attention to the copyright reform is having an effect. Keeping up the pressure in the coming weeks will be more important than ever to make sure that the most dangerous elements of the new copyright proposal will be rejected.

The Internet is Facing a Catastrophe For Free Expression and Competition But You Could Still Tip The Balance. By Cory Doctorow

The new EU Copyright Directive is progressing at an alarming rate. This week, the EU is asking its member-states to approve new negotiating positions for the final language. Once they get it, they're planning to hold a final vote before pushing this drastic, radical new law into 28 countries and 500,000,000 people.

While the majority of the rules in the new Directive are inoffensive updates to European copyright law, two parts of the Directive represent pose a dire threat to the global Internet:

• Article 11: A proposal to make platforms pay for linking to news sites by creating a non-waivable right to license any links from for-profit services (where those links include more than a word or two from the story or its headline). Article 11 fails to define "news sites," "commercial platforms" and "links," which invites 28 European nations to create 28 mutually exclusive, contradictory licensing regimes. Additionally, the fact that the "linking right" can't be waived means that open-access, public-interest, nonprofit and Creative Commons news sites can't opt out of the system.

• Article 13: A proposal to end the appearance of unlicensed copyrighted works on big user-generated content platforms, even for an instant. Initially, this included an explicit mandate to develop "filters" that would examine every social media posting by everyone in the world and check whether it matched entries in an open, crowdsourced database of supposedly copyrighted materials. In its current form, the rule says that filters "should be avoided" but does not explain how billions of social media posts, videos, audio files, and blog posts should be monitored for infringement without automated filtering systems.

Taken together, these two rules will subject huge swaths of online expression to interception and arbitrary censorship, and give the largest news companies in Europe the power to decide who can discuss and criticise their reporting, and undermining public-interest, open-access journalism.

The Directive is now in the hands of the European member-states. National ministers are going to decide whether or not Europe becomes a global exporter of censorship and surveillance. Your voice counts : when you contact your ministers, you are speaking as one citizen to another, in a national context, about issues of import to you and your neighbours. Your national government depends on your goodwill to win the votes to continue its mandate. This is a rare moment in European lawmaking when local connections from citizens matter more than well-funded, international corporations.

If you live in Sweden, Germany, Luxembourg, or Poland:

Please contact your ministers to convey your concern about Article 13 and 11.

We've set up action pages to reach the right people, but you should tailor your message to describe who you are, and your worries. Your country has previously expressed concerns about Article 13 and 11, and may still oppose it.

• Sweden: Take Action Here.
• Germany: Take Action Here.
• Luxembourg: Take Action Here.
• Poland: Take Action Here.
• Belgium: Take Action Here.

4,000,000 Europeans have signed a petition opposing Article 13 of the new Copyright in the Single Market Directive. They oppose it for two main reasons: because it will inevitably lead to the creation of algorithmic copyright filters that only US Big Tech companies can afford (making the field less competitive and thus harder for working artists to negotiate better deals in) and because these filters will censor enormous quantities of legitimate material, thanks to inevitable algorithmic errors and abuse.

On Monday, a delegation from the signatories officially presented the Trilogue negotiators with the names of 4,000,000+ Europeans who oppose Article 13. These 4,000,000 are in esteemed company: Article 13 is also opposed by the father of the Internet, Vint Cerf, and the creator of the Web, Tim Berners-Lee and more than 70 of the Internet's top technical experts, not to mention Europe's largest sports leagues and film studios. Burgeoning movements opposing the measure have sprung up in Italy and Poland.

But no matter how much damage the EU proposed law will do to European businesses and creators, it does not go far enough for the large corporates. This leaves a tricky negation for the EU power brokers of the EU Commission and EU Council of Ministers. The law is widely opposed by European people but now the US corporates are whingeing that they don't like a few concessions made to get get the bill through the European Parliament. They want the full horror of censorship machines resurrected. The EFF reports on a delay to proceedings:

This week EU negotiators in Strasbourg struggled to craft the final language of the Copyright in the Single Digital Market Directive, in their last possible meeting for 2019. They failed, thanks in large part to the Directive's two most controversial clauses: Article 11, which requires paid licenses for linking to news stories while including more than a word or two; and Article 13, which will lead to the creation of error-prone copyright censorship algorithms that will block users from posting anything that has been identified as a copyrighted work -- even if that posting is lawful. This means that the Directive will not be completed, as was expected, under Austria's presidency of the European Union. The negotiations between the European Parliament, representatives of the member states, and the European Commission (called "trilogues") will continue under the Romanian presidency, in late January.

The controversy over Article 13 and Article 11 has not diminished since millions of Europeans voiced their opposition to the proposals and their effect on the Internet earlier this year. Even supporters and notional beneficiaries have now grown critical of the proposals. An open letter signed by major rightsholder groups, including movie companies and sports leagues, asks the EU to exempt their products from Article 13 altogether , and suggest it should only apply to the music industry's works. Meanwhile, the music industry wrote their own open letter, saying that he latest proposed text on Article 13 won't solve their problems. These rightsholders join the world's most eminent computer scientists, including the inventors of the Internet and the Web, who denounced the whole approach and warned of the irreparable harm it will do to free expression and the hope of a fair, open Internet.

The collective opposition is unsurprising. Months of closed-door negotiations and corporate lobbying have actually made the proposals worse : even less coherent, and more riddled with irreconcilable contradictions. The way that the system apportions liability (with stiff penalties for allowing a user to post something that infringes copyright, and no consequences for censoring legitimate materials) leads inexorably to filters . And as recent experiences with Tumblr's attempt to filter adult material have shown, algorithms are simply not very good at figuring out when a user has broken a rule, let alone a rule as technical and fact-intensive as copyright.

What is worse, the Directive will only reinforce the power of US Big Tech companies by inhibiting the emergence of European competitors. That's because only the biggest tech companies have the millions of euros it will cost to deploy the filters Article 13 requires. Proponents of Article 13 stress that the dominance of platforms like Google and Facebook leaves them with insufficient bargaining leverage and say this leads to a systematic undervaluing of their products. But Article 13 will actually reduce that leverage even further by preventing the emergence of alternative platforms.

Compromises suggested by the negotiators to limit the damage are proving unlikely to help. Prior to the Trilogue, Article 13 was imposed on all online platforms save those businesses with less than 10 million euros in annual turnover. Some parties, realising that this will limit the EU tech sector, have suggested changing the figure, but doubling that figure to 20 million doesn't help. If you own a European tech company that you hope will compete with Google someday, you will have to do something Google never had to face: the day you make the leap from 20 million euros in annual turnover to 20,000,001 euros, you will have to find hundreds of millions of euros to implement an Article 13 copyright filter.

Others have proposed a "notice-and-staydown" system to reassure rightsholders that they will not have to invest their own resources in maintaining the copyright filters. But creating this model for copyright complaints extinguishes any hope of moderating the harms Article 13 will do to small European companies. Earlier drafts of Article 13 spoke of case-by-case assessments for mid-sized platforms, which would exempt them from implementing filters if they were judged to be engaged in good faith attempts to limit infringement. But notice-and-staydown (the idea that once a platform has been notified of a user's copyright violation, it must prevent every other user from making such a violation, ever) necessarily requires filters. Others in the negotiation are now arguing that microenterprises should have to pay the burden, and are pressing for even these small and mid-sized business exemptions to be deleted from the text.

With European internet users, small business people, legal experts, technical experts, human rights and free speech experts all opposed to these proposals, we had hoped that they would be struck from the Trilogue's final draft. Now, they are blocking the passage of other important copyright reforms. Even Article 13 and 11's original advocates are realising how much they depend on a working Internet, and a remuneration system that might have a chance of working.

Still, the lobbying will continue over the holiday break. Some of the world's biggest entertainment and Internet companies will be throwing their weight around the EU to find a "compromise" that will keep no-one happy, and will exclude the needs and rights of individual Internet users, and European innovators.

Read more about the Directive, and contact your MEPs and national governments at Save Your Internet .

As the controversy over the EU's Article 13 censorship machines continue, Twitter appears to be the communications weapon of choice for parties on both sides.

As one of the main opponents of Article 13 and in particular its requirement for upload filtering, Julia Reda MEP has been a frequent target for proponents. Accused of being a YouTube/Google shill (despite speaking out loudly against YouTube's maneuvering), Reda has endured a lot of criticism. As an MEP, she's probably used to that.

However, a recent response to one of her tweets from music giant IFPI opens up a somewhat ironic can of worms that deserves a closer look.

Since kids will be affected by Article 13, largely due to their obsessiveness with YouTube, Reda recently suggested that they should lobby their parents to read up on the legislation. In tandem with pop-ups from YouTube advising users to oppose Article 13, that seemed to irritate some supporters of the proposed law.

As the response from IFPI's official account shows, Reda's advice went down like a lead balloon with the music group, a key defender of Article 13. The IFPI tweeted:.

Shame on you: Do you really approve of minors being manipulated by big tech companies to deliver their commercial agenda?

It's pretty ironic that IFPI has called out Reda for informing kids about copyright law to further the aims of big tech companies. As we all know, the music and movie industries have been happily doing exactly the same to further their own aims for at least ten years and probably more.

Digging through the TF archives, there are way too many articles detailing how big media has directly targeted kids with their message over the last decade. Back in 2009, for example, a former anti-piracy consultant for EMI lectured kids as young as five on anti-piracy issues.

In 2011, Europeans rose up over ACTA , the misleadingly named "Anti-Counterfeiting Trade Agreement," which created broad surveillance and censorship regimes for the internet. They were successful in large part thanks to the Polish activists who thronged the streets to reject the plan, which had been hatched and exported by the US Trade Representative.

Now, Europe is in on the verge of an ever farther-reaching scheme to censor and surveil the internet: the new Copyright Directive, which limits who can link to (and criticise) the news and sets up crowdsourced databases of blacklisted content that anyone can add anything to, and which cannot thereafter be published online.

The Poles aren't having any of it: a broad coalition of Poles from the left and the right have come together to oppose the new Directive, dubbing it "ACTA2," which should give you an idea of how they feel about the matter.

There are now enough national governments opposed to the Directive to constitute a "blocking minority" that could stop it dead. Alas, the opposition is divided on whether to reform the offending parts of the Directive, or eliminate them outright (this division is why the Directive squeaked through the last vote, in September), and unless they can work together, the Directive still may proceed.

A massive coalition of 15,000 Polish creators whose videos, photos and text are enjoyed by over 20,000,000 Poles have signed an open letter supporting the idea of a strong, creator-focused copyright and rejecting the new Copyright Directive as a direct path to censoring filters that will deprive them of their livelihoods.

The coalition points out that online media is critical to the lives of everyday Poles for purposes that have nothing to do with the entertainment industry: education, the continuation of Polish culture, and connections to the global Polish diaspora.

Polish civil society and its ruling political party are united in opposing ACTA2; Polish President Andrzej Duda vowed to oppose it.

Early next month, the Polish Internet Governance Forum will host a roundtable on the question; they have invited proponents of the Directive to attend and publicly debate the issue.

Defending equal access to the free and open internet is core to Reddit's ideals, and something that redditors have told us time and again they hold dear too, from the SOPA/PIPA battle to the fight for Net Neutrality. This is why even though we are an American company with a user base primarily in the United States, we've nevertheless spent a lot of time this year warning about how an overbroad EU Copyright Directive could restrict Europeans' equal access to the open Internet--and to Reddit.

Despite these warnings, it seems that EU lawmakers still don't fully appreciate the law's potential impact, especially on small and medium-sized companies like Reddit. So we're stepping things up to draw attention to the problem. Users in the EU will notice that when they access Reddit via desktop, they are greeted by a modal informing them about the Copyright Directive and referring them to detailed resources on proposed fixes .

The problem with the Directive lies in Articles 11 (link licensing fees) and 13 (copyright filter requirements), which set sweeping, vague requirements that create enormous liability for platforms like ours. These requirements eliminate the previous safe harbors that allowed us the leeway to give users the benefit of the doubt when they shared content. But under the new Directive, activity that is core to Reddit, like sharing links to news articles, or the use of existing content for creative new purposes (r/photoshopbattles, anyone?) would suddenly become questionable under the law, and it is not clear right now that there are feasible mitigating actions that we could take while preserving core site functionality. Even worse, smaller but similar attempts in various countries in Europe in the past have shown that such efforts have actually harmed publishers and creators .

Accordingly, we hope that today's action will drive the point home that there are grave problems with Articles 11 and 13, and that the current trilogue negotiations will choose to remove both entirely. Barring that, however, we have a number of suggestions for ways to improve both proposals. Engine and the Copia Institute have compiled them here at https://dontwreckthe.net/ . We hope you will read them and consider calling your Member of European Parliament ( look yours up here ). We also hope that EU lawmakers will listen to those who use and understand the internet the most, and reconsider these problematic articles. Protecting rights holders need not come at the cost of silencing European internet users.

When the EU started planning its new Copyright Directive (the "Copyright in the Digital Single Market Directive"), a group of powerful entertainment industry lobbyists pushed a terrible idea: a mandate that all online platforms would have to create crowdsourced databases of "copyrighted materials" and then block users from posting anything that matched the contents of those databases.

At the time, we, along with academics and technologists explained why this would undermine the Internet, even as it would prove unworkable. The filters would be incredibly expensive to create, would erroneously block whole libraries' worth of legitimate materials, allow libraries' more worth of infringing materials to slip through, and would not be capable of sorting out "fair dealing" uses of copyrighted works from infringing ones.

The Commission nonetheless included it in their original draft. Two years later, after the European Parliament went back and forth on whether to keep the loosely-described filters, with German MEP Axel Voss finally squeezing a narrow victory in his own committee, and an emergency vote of the whole Parliament. Now, after a lot of politicking and lobbying, Article 13 is potentially only a few weeks away from becoming officially an EU directive, controlling the internet access of more than 500,000,000 Europeans.

The proponents of Article 13 have a problem, though: filters don't work, they cost a lot, they underblock, they overblock, they are ripe for abuse (basically, all the objections the Commission's experts raised the first time around). So to keep Article 13 alive, they've spun, distorted and obfuscated its intention, and now they can be found in the halls of power, proclaiming to the politicians who'll get the final vote that "Article 13 does not mean copyright filters."

But it does.

Here's a list of Frequently Obfuscated Questions and our answers. We think that after you've read them, you'll agree: Article 13 is about filters, can only be about filters, and will result in filters.

• Article 13 is about filtering, not "just" liability

  Today, most of the world (including the EU) handles copyright infringement with some sort of takedown process. If you provide the public with a place to publish their thoughts, photos, videos, songs, code, and other copyrightable works, you don't have to review everything they post (for example, no lawyer has to watch 300 hours of video every minute at YouTube before it goes live). Instead, you allow rightsholders to notify you when they believe their copyrights have been violated and then you are expected to speedily remove the infringement. If you don't, you might still not be liable for your users' infringement, but you lose access to the quick and easy 'safe harbor' provided by law in the event that you are named as part of any copyright lawsuit (and since the average internet company has a lot more money than the average internet user, chances are you will be named in that suit). What you're not expected to be is the copyright police. And in fact, the EU has a specific Europe-wide law that stops member states from forcing Internet services from having to play this role: the same rule that defines the limits of their liability, the E-Commerce Directive, in the very next article, prohibits a "general obligation to monitor." That's to stop countries from saying "you should know that your users are going to break some law, some time, so you should actively be checking on them all the time -- and if you don't, you're an accomplice to their crimes." The original version of Article tried to break this deal, by re-writing that second part. Instead of a prohibition on monitoring, it required it, in the form of a mandatory filter.

  When the European Parliament rebelled against that language, it was because millions of Europeans had warned them of the dangers of copyright filters. To bypass this outrage, Axel Voss proposed an amendment to the Article that replaced an explicit mention of filters, but rewrote the other part of the E-Commerce directive. By claiming this "removed the filters", he got his amendment passed -- including by gaining votes by MEPs who thought they were striking down Article 13.Voss's rewrite says that sharing sites are liable unless they take steps to stop that content before it goes online.

  So yes, this is about liability, but it's also about filtering. What happens if you strip liability protections from the Internet? It means that services are now legally responsible for everything on their site. Consider a photo-sharing site where millions of photos are posted every hour. There are not enough lawyers -- let alone copyright lawyers -- let alone copyright lawyers who specialise in photography -- alive today to review all those photos before they are permitted to appear online.

  Add to that all the specialists who'd have to review every tweet, every video, every Facebook post, every blog post, every game mod and livestream. It takes a fraction of a second to take a photograph, but it might take hours or even days to ensure that everything the photo captures is either in the public domain, properly licensed, or fair dealing. Every photo represents as little as an instant's work, but making it comply with Article 13 represents as much as several weeks' work. There is no way that Article 13's purpose can be satisfied with human labour.

  It's strictly true that Axel Voss's version of Article 13 doesn't mandate filters -- but it does create a liability system that can only be satisfied with filters.

  But there's more: Voss's stripping of liability protections has Big Tech like YouTube scared, because if the filters aren't perfect, they will be potentially liable for any infringement that gets past them -- and given their billions, that means anyone and everyone might want to get a piece of them. So now, YouTube has started lobbying for the original text, copyright filters and all. That text is still on the table, because the trilogue uses both Voss' text (liability to get filters) and member states' proposal (all filters, all the time) as the basis for the negotiation.

• Most online platforms cannot have lawyers review all the content they make available

  The only online services that can have lawyers review their content are services for delivering relatively small libraries of entertainment content, not the general-purpose speech platforms that make the Internet unique. The Internet isn't primarily used for entertainment (though if you're in the entertainment industry, it might seem that way): it is a digital nervous system that stitches together the whole world of 21st Century human endeavor. As the UK Champion for Digital Inclusion discovered when she commissioned a study of the impact of Internet access on personal life, people use the Internet to do everything, and people with Internet access experience positive changes across their lives : in education, political and civic engagement, health, connections with family, employment, etc.

  The job we ask, say, iTunes and Netflix to do is a much smaller job than we ask the online companies to do. Users of online platforms do sometimes post and seek out entertainment experiences on them, but as a subset of doing everything else: falling in love, getting and keeping a job, attaining an education, treating chronic illnesses, staying in touch with their families, and more. iTunes and Netflix can pay lawyers to check all the entertainment products they make available because that's a fraction of a slice of a crumb of all the material that passes through the online platforms. That system would collapse the instant you tried to scale it up to manage all the things that the world's Internet users say to each other in public.

• It's impractical for users to indemnify the platforms

  Some Article 13 proponents say that online companies could substitute click-through agreements for filters, getting users to pay them back for any damages the platform has to pay out in lawsuits. They're wrong. Here's why.

  Imagine that every time you sent a tweet, you had to click a box that said, "I promise that this doesn't infringe copyright and I will pay Twitter back if they get sued for this." First of all, this assumes a legal regime that lets ordinary Internet users take on serious liability in a click-through agreement, which would be very dangerous given that people do not have enough hours in the day to read all of the supposed 'agreements' we are subjected to by our technology.

  Some of us might take these agreements seriously and double-triple check everything we posted to Twitter but millions more wouldn't, and they would generate billions of tweets, and every one of those tweets would represent a potential lawsuit.

  For Twitter to survive those lawsuits, it would have to ensure that it knew the true identity of every Twitter user (and how to reach that person) so that it could sue them to recover the copyright damages they'd agreed to pay. Twitter would then have to sue those users to get its money back. Assuming that the user had enough money to pay for Twitter's legal fees and the fines it had already paid, Twitter might be made whole... eventually. But for this to work, Twitter would have to hire every contract lawyer alive today to chase its users and collect from them. This is no more sustainable than hiring every copyright lawyer alive today to check every tweet before it is published.

• Small tech companies would be harmed even more than large ones

  It's true that the Directive exempts "Microenterprises and small-sized enterprises" from Article 13, but that doesn't mean that they're safe. The instant a company crosses the threshold from "small" to "not-small" (which is still a lot smaller than Google or Facebook), it has to implement Article 13's filters. That's a multi-hundred-million-dollar tax on growth, all but ensuring that the small Made-in-the-EU competitors to American Big Tech firms will never grow to challenge them. Plus, those exceptions are controversial in the Trilogue, and may disappear after yet more rightsholder lobbying.

• Existing filter technologies are a disaster for speech and innovation

  ContentID is YouTube's proprietary copyright filter. It works by allowing a small, trusted cadre of rightsholders to claim works as their own copyright, and limits users' ability to post those works according to the rightsholders' wishes, which are more restrictive than what the law's user protections would allow. ContentID then compares the soundtrack (but not the video component) of any user uploads to the database to see whether it is a match.

  Everyone hates ContentID. Universal and the other big rightsholders complain loudly and frequently that ContentID is too easy for infringers to bypass. YouTube users point out that ContentID blocks all kind of legit material, including silence , birdsong , and music uploaded by the actual artist for distribution on YouTube . In many cases, this isn't a 'mistake,' in the sense that Google has agreed to let the big rightsholders block or monetize videos that do not infringe any copyright, but instead make a fair use of copyrighted material.

  ContentID does a small job, poorly: filtering the soundtracks of videos to check for matches with a database populated by a small, trusted group. No one (who understands technology) seriously believes that it will scale up to blocking everything that anyone claims as a copyrighted work (without having to show any proof of that claim or even identify themselves!), including videos, stills, text, and more.

• Online platforms aren't in the entertainment business

  The online companies most impacted by Article 13 are platforms for general-purpose communications in every realm of human endeavor, and if we try to regulate them like a cable operator or a music store, that's what they will become.

• The Directive does not adequately protect fair dealing and due process

  Some drafts of the Directive do say that EU nations should have "effective and expeditious complaints and redress mechanisms that are available to users" for "unjustified removals of their content. Any complaint filed under such mechanisms shall be processed without undue delay and be subject to human review. Right holders shall reasonably justify their decisions to avoid arbitrary dismissal of complaints."

  What's more, "Member States shall also ensure that users have access to an independent body for the resolution of disputes as well as to a court or another relevant judicial authority to assert the use of an exception or limitation to copyright rules."

  On their face, these look like very good news! But again, it's hard (impossible) to see how these could work at Internet scale. One of EFF's clients had to spend ten years in court when a major record label insisted -- after human review, albeit a cursory one-- that the few seconds' worth of tinny background music in a video of her toddler dancing in her kitchen infringed copyright. But with Article 13's filters, there are no humans in the loop: the filters will result in millions of takedowns, and each one of these will have to receive an "expeditious" review. Once again, we're back to hiring all the lawyers now alive -- or possibly, all the lawyers that have ever lived and ever will live -- to check the judgments of an unaccountable black box descended from a system that thinks that birdsong and silence are copyright infringements.

  It's pretty clear the Directive's authors are not thinking this stuff through. For example, some proposals include privacy rules: "the cooperation shall not lead to any identification of individual users nor the processing of their personal data." Which is great: but how are you supposed to prove that you created the copyrighted work you just posted without disclosing your identity? This could not be more nonsensical if it said, "All tables should weigh at least five tonnes and also be easy to lift with one hand."

• The speech of ordinary Internet users matters

  Eventually, arguments about Article 13 end up here: "Article 13 means filters, sure. Yeah, I guess the checks and balances won't scale. OK, I guess filters will catch a lot of legit material. But so what? Why should I have to tolerate copyright infringement just because you can't do the impossible? Why are the world's cat videos more important than my creative labour?"

  One thing about this argument: at least it's honest. Article 13 pits the free speech rights of every Internet user against a speculative theory of income maximisation for creators and the entertainment companies they ally themselves with: that filters will create revenue for them.

  It's a pretty speculative bet. If we really want Google and the rest to send more money to creators, we should create a Directive that fixes a higher price through collective licensing.

  But let's take a moment here and reflect on what "cat videos" really stand in for here. The personal conversations of 500 million Europeans and 2 billion global Internet users matter : they are the social, familial, political and educational discourse of a planet and a species. They have worth, and thankfully it's not a matter of choosing between the entertainment industry and all of that -- both can peacefully co-exist, but it's not a good look for arts groups to advocate that everyone else shut up and passively consume entertainment product as a way of maximising their profits.

The closed-door trilogue efforts to finalise the EU Copyright Directive continue. The Presidency of the Council, currently held by Austria, has now circulated among the EU member state governments a new proposal for a compromise between the differing drafts currently on the table for the controversial Articles 11 and 13.

Under this latest proposal, both upload filters and the link tax would be here to stay -- with some changes for the better, and others for the worse.

Upload filters/Censorshipmachines

Let's recall: In its final position, the European Parliament had tried its utmost to avoid specifically mentioning upload filters, in order to avoid the massive public criticism of that measure. The text they ended up with, however, was even worse: It would make online platforms inescapably liable for any and all copyright infringement by their users, no matter what action they take. Not even the strictest upload filter in the world could possibly hope to catch 100% of unlicensed content.

This is what prompted YouTube's latest lobbying efforts in favour of upload filters and against the EP's proposal of inescapable liability. Many have mistaken this as lobbying against Article 13 as a whole -- it is not. In Monday's Financial Times, YouTube spelled out that they would be quite happy with a law that forces everyone else to build (or, presumably, license from them) what they already have in place: Upload filters like Content ID.

In this latest draft, the Council Presidency sides with YouTube, going back to rather explicitly prescribing upload filters. The Council proposes two alternative options on how to phrase that requirement, but they match in effect:

Platforms are liable for all copyright infringements committed by their users, EXCEPT if they

• cooperate with rightholders

• by implementing effective and proportionate steps to prevent works they've been informed about from ever going online determining which steps those are must take into account suitable and effective technologies

• Under this text, wherever upload filters are possible, they must be implemented: All your uploads will require prior approval by error-prone copyright bots .

On the good side, the Council Presidency seems open to adopting the Parliament's exception for platforms run by small and micro businesses . It also takes on board the EP's better-worded exception for open source code sharing platforms like GitHub.

On the bad side, Council rejects Parliament's efforts for a stronger complaint mechanism requiring reviews by humans and an independent conflict resolution body. Instead it takes on board the EP's insistence that licenses taken out by a platform don't even have to necessarily cover uses of these works by the users of that platform. So, for example, even if YouTube takes out a license to show a movie trailer, that license could still prevent you as an individual YouTuber from using that trailer in your own uploads.

Article 11 Link tax

On the link tax, the Council is mostly sticking to its position: It wants the requirement to license even short snippets of news articles to last for one year after an article's publication, rather than five, as the Parliament proposed.

In a positive development, the Council Presidency adopts the EP's clarification that at least the facts included in news articles as such should not be protected. So a journalist would be allowed to report on what they read in another news article, in their own words.

Council fails to clearly exclude hyperlinks -- even those that aren't accompanied by snippets from the article. It's not uncommon for the URLs of news articles themselves to include the article's headline. While the Council wants to exclude insubstantial parts of articles from requiring a license, it's not certain that headlines count as insubstantial. (The Council's clause allowing acts of hyperlinking when they do not constitute communication to the public would not apply to such cases, since reproducing the headline would in fact constitute such a communication to the public.)

The Council continues to want the right to only apply to EU-based news sources -- which could in effect mean fewer links and listings in search engines, social networks and aggregators for European sites, putting them at a global disadvantage.

However, it also proposes spelling out that news sites may give out free licenses if they so choose -- contrary to the Parliament, which stated that listing an article in a search engine should not be considered sufficient payment for reproducing snippets from it.

When the EU voted for mandatory copyright censorship of the internet in September, Italy had a different government; the ensuing Italian elections empowered a new government, who oppose the filters.

Once states totalling 35% of the EU's population oppose the new Copyright Directive, they can form a "blocking minority" and kill it or cause it to be substantially refactored. With the Italians opposing the Directive because of its draconian new internet rules (rules introduced at the last moment, which have been hugely controversial), the reputed opponents of the Directive have now crossed the 35% threshold, thanks to Germany, Finland, the Netherlands, Slovenia, Belgium and Hungary.

Unfortunately, the opponents of Article 11 (the "link tax") and Article 13 (the copyright filters) are not united on their opposition -- they have different ideas about what they would like to see done with these provisions. If they pull together, that could be the end of these provisions.

If you're a European this form will let you contact your MEP quickly and painlessly and let them know how you feel about the proposals.

That's where matters stand now: a growing set of countries who think copyright filters and link taxes go too far, but no agreement yet on rejecting or fixing them.

The trilogues are not a process designed to resolve such large rifts when both the EU states and the parliament are so deeply divided.

What happens now depends entirely on how the members states decide to go forward: and how hard they push for real reform of Articles 13 and 11. The balance in that discussion has changed, because Italy changed its position. Italy changed its position because Italians spoke up. If you reach out to your countries' ministry in charge of copyright, and tell them that these Articles are a concern to you, they'll start paying attention too. And we'll have a chance to stop this terrible directive from becoming terrible law across Europe.

YouTube has warned its video creators about the likely effect of the EU's upcoming censorship machines:

YouTube's growing creative economy is at risk, as the EU Parliament voted on Article 13, copyright legislation that could drastically change the internet that you see today.

Article 13 as written threatens to shut down the ability of millions of people -- from creators like you to everyday users -- to upload content to platforms like YouTube. And it threatens to block users in the EU from viewing content that is already live on the channels of creators everywhere. This includes YouTube's incredible video library of educational content, such as language classes, physics tutorials and other how-to's.

This legislation poses a threat to both your livelihood and your ability to share your voice with the world. And, if implemented as proposed, Article 13 threatens hundreds of thousands of jobs, European creators, businesses, artists and everyone they employ. The proposal could force platforms, like YouTube, to allow only content from a small number of large companies. It would be too risky for platforms to host content from smaller original content creators, because the platforms would now be directly liable for that content. We realize the importance of all rights holders being fairly compensated, which is why we built Content ID and a platform to pay out all types of content owners. But the unintended consequences of article 13 will put this ecosystem at risk. We are committed to working with the industry to find a better way. This language could be finalized by the end of the year, so it's important to speak up now.

Please take a moment to learn more about how it could affect your channel and take action immediately. Tell the world through social media (#SaveYourInternet) and your channel why the creator economy is important and how this legislation will impact you

As the EU advances the new Copyright Directive towards becoming law in its 28 member-states, it's important to realise that the EU's plan will end up censoring the Internet for everyone , not just Europeans.

A quick refresher: Under Article 13 of the new Copyright Directive, anyone who operates a (sufficiently large) platform where people can post works that might be copyrighted (like text, pictures, videos, code, games, audio etc) will have to crowdsource a database of "copyrighted works" that users aren't allowed to post, and block anything that seems to match one of the database entries.

These blacklist databases will be open to all comers (after all, anyone can create a copyrighted work): that means that billions of people around the world will be able to submit anything to the blacklists, without having to prove that they hold the copyright to their submissions (or, for that matter, that their submissions are copyrighted). The Directive does not specify any punishment for making false claims to a copyright, and a platform that decided to block someone for making repeated fake claims would run the risk of being liable to the abuser if a user posts a work to which the abuser does own the rights .

The major targets of this censorship plan are the social media platforms, and it's the "social" that should give us all pause.

That's because the currency of social media is social interaction between users . I post something, you reply, a third person chimes in, I reply again, and so on.

Now, let's take a hypothetical Twitter discussion between three users: Alice (an American), Bob (a Bulgarian) and Carol (a Canadian).

Alice posts a picture of a political march: thousands of protesters and counterprotesters, waving signs. As is common around the world , these signs include copyrighted images, whose use is permitted under US "fair use" rules that permit parody. Because Twitter enables users to communicate significant amounts of user-generated content, they'll fall within the ambit of Article 13.

Bob lives in Bulgaria, an EU member-state whose copyright law does not permit parody . He might want to reply to Alice with a quote from the Bulgarian dissident Georgi Markov , whose works were translated into English in the late 1970s and are still in copyright.

Carol, a Canadian who met Bob and Alice through their shared love of Doctor Who, decides to post a witty meme from " The Mark of the Rani ," a 1985 episode in which Colin Baker travels back to witness the Luddite protests of the 19th Century.

Alice, Bob and Carol are all expressing themselves through use of copyrighted cultural works, in ways that might not be lawful in the EU's most speech-restrictive copyright jurisdictions. But because (under today's system) the platform typically is only required to to respond to copyright complaints when a rightsholder objects to the use, everyone can see everyone else's posts and carry on a discussion using tools and modes that have become the norm in all our modern, digital discourse.

But once Article 13 is in effect, Twitter faces an impossible conundrum. The Article 13 filter will be tripped by Alice's lulzy protest signs, by Bob's political quotes, and by Carol's Doctor Who meme, but suppose that Twitter is only required to block Bob from seeing these infringing materials.

Should Twitter hide Alice and Carol's messages from Bob? If Bob's quote is censored in Bulgaria, should Twitter go ahead and show it to Alice and Carol (but hide it from Bob, who posted it?). What about when Bob travels outside of the EU and looks back on his timeline? Or when Alice goes to visit Bob in Bulgaria for a Doctor Who convention and tries to call up the thread? Bear in mind that there's no way to be certain where a user is visiting from, either.

The dangerous but simple option is to subject all Twitter messages to European copyright censorship, a disaster for online speech.

And it's not just Twitter, of course: any platform with EU users will have to solve this problem. Google, Facebook, Linkedin, Instagram, Tiktok, Snapchat, Flickr, Tumblr -- every network will have to contend with this.

With Article 13, the EU would create a system where copyright complainants get a huge stick to beat the internet with, where people who abuse this power face no penalties, and where platforms that err on the side of free speech will get that stick right in the face.

As the EU's censorship plan works its way through the next steps on the way to becoming binding across the EU, the whole world has a stake -- but only a handful of appointed negotiators get a say.

If you are a European, the rest of the world would be very grateful indeed if you would take a moment to contact your MEP and urge them to protect us all in the new Copyright Directive.

( Image: The World Flag , CC-BY-SA )

New Copyright Powers, New Terrorist Content Laws: A Grim Day For Digital Rights in Europe

See  article from eff.org by Danny O'Brien

Despite waves of calls and emails from European Internet users, the European Parliament today voted to accept the principle of a universal pre-emptive copyright filter for content-sharing sites, as well as the idea that news publishers should have the right to sue others for quoting news items online -- or even using their titles as links to articles. Out of all of the potential amendments offered that would fix or ameliorate the damage caused by these proposals, they voted for worst on offer .

There are still opportunities, at the EU level, at the national level, and ultimately in Europe's courts, to limit the damage. But make no mistake, this is a serious setback for the Internet and digital rights in Europe.

It also comes at a trepidatious moment for pro-Internet voices in the heart of the EU. On the same day as the vote on these articles, another branch of the European Union's government, the Commission, announced plans to introduce a new regulation on preventing the dissemination of terrorist content online . Doubling down on speedy unchecked censorship, the proposals will create a new removal order, which will oblige hosting service providers to remove content within one hour of being ordered to do so. Echoing the language of the copyright directive, the Terrorist Regulation aims at ensuring smooth functioning of the digital single market in an open and democratic society, by preventing the misuse of hosting services for terrorist purposes; it encourages the use of proactive measures, including the use of automated tools.

Not content with handing copyright law enforcement to algorithms and tech companies, the EU now wants to expand that to defining the limits of political speech too.

And as bad as all this sounds, it could get even worse. Elections are coming up in the European Parliament next May. Many of the key parliamentarians who have worked on digital rights in Brussels will not be standing. Marietje Schaake, author of some of the better amendments for the directive, announced this week that she would not be running again. Julia Reda, the German Pirate Party representative, is moving on; Jan Philipp Albrecht, the MEP behind the GDPR, has already left Parliament to take up a position in domestic German politics. The European Parliament's reserves of digital rights expertise, never that full to begin with, are emptying.

The best that can be said about the Copyright in the Digital Single Market Directive, as it stands, is that it is so ridiculously extreme that it looks set to shock a new generation of Internet activists into action -- just as the DMCA, SOPA/PIPA and ACTA did before it.

If you've ever considered stepping up to play a bigger role in European politics or activism, whether at the national level, or in Brussels, now would be the time.

It's not enough to hope that these laws will lose momentum or fall apart from their own internal incoherence, or that those who don't understand the Internet will refrain from breaking it. Keep reading and supporting EFF, and join Europe's powerful partnership of digital rights groups, from Brussels-based EDRi to your local national digital rights organization . Speak up for your digital business, open source project, for your hobby or fandom, and as a contributor to the global Internet commons.

This was a bad day for the Internet and for the European Union: but we can make sure there are better days to come.

The European Parliament has voted to approve new copyright powers enabling the big media industry to control how their content is used on the internet.

Article 11 introduces the link tax which lets news companies control how their content is used. The target of the new law is to make Google pay newspapers for its aggregating Google News service. The collateral damage is that millions of websites can now be harangued for linking to and quoting articles, or even just sharing links to them.

Article 13 introduces the requirements for user content sites to create censorship machines that pre-scan all uploaded content and block anything copyrighted. The original proposal, voted on in June, directly specified content hosts use censorship machines (or filters as the EU prefers to call them). After a cosmetic rethink since June, the law no longer specifies automatic filters, but instead specifies that content hosts are responsible for copyright published. And of course the only feasible way that content hosts can ensure they are not publishing copyrighted material is to use censorship machines anyway. The law was introduced, really with just the intention of making YouTube and Facebook pay more for content from the big media companies. The collateral damage to individuals and small businesses was clearly of no concern to the well lobbied MEPs.

Both articles will introduce profound new levels of censorship to all users of the internet, and will also mean that there will reduced opportunities for people to get their contributions published or noticed on the internet. This is simply because the large internet companies are commercial organisations and will always make decisions with costs and profitability in mind. They are not state censors with a budget to spend on nuanced decision making. So the net outcome will be to block vast swathes of content being uploaded just in case it may contain copyright.

An example to demonstrate the point is the US censorship law, FOSTA. It requires content hosts to block content facilitating sex trafficking. Internet companies generally decided that it was easier to block all adult content rather than to try and distinguish sex trafficking from non-trafficking sex related content. So sections of websites for dating and small ads, personal services etc were shut down overnight.

The EU however has introduced a few amendments to the original law to slightly lessen the impact an individuals and small scale content creators.

• Article 13 will now only apply to platforms where the main purpose ...is to store and give access to the public or to stream significant amounts of copyright protected content uploaded / made available by its users and that optimise content and promotes for profit making purposes .
• When defining best practices for Article 13, special account must now be taken of fundamental rights, the use of exceptions and limitations. Special focus should also be given to ensuring that the burden on SMEs remain appropriate and that automated blocking of content is avoided (effectively an exception for micro/small businesses). Article 11 shall not extend to mere hyperlinks, which are accompanied by individual words (so it seems links are safe, but quoted snippets of text must be very short) and the protection shall also not extend to factual information which is reported in journalistic articles from a press publication and will therefore not prevent anyone from reporting such factual information .
• Article 11 shall not prevent legitimate private and non-commercial use of press publications by individual users .
• Article 11 rights shall expire 5 years after the publication of the press publication. This term shall be calculated from the first day of January of the year following the date of publication. The right referred to in paragraph 1 shall not apply with retroactive effect .
• Individual member states will now have to decide how Article 11 is implemented, which could create some confusion across borders.

At the same time, the EU rejected the other modest proposals to help out individuals and small creators:

• No freedom of panorama. When we take photos or videos in public spaces, we're apt to incidentally capture copyrighted works: from stock art in ads on the sides of buses to t-shirts worn by protestors, to building facades claimed by architects as their copyright. The EU rejected a proposal that would make it legal Europe-wide to photograph street scenes without worrying about infringing the copyright of objects in the background.
• No user-generated content exemption, which would have made EU states carve out an exception to copyright for using excerpts from works for criticism, review, illustration, caricature, parody or pastiche.

A final round of negotiation with the EU Council and European Commission is now due to take place before member states make a decision early next year. But this is historically more of a rubber stamping process and few, if any, significant changes are expected.

However, anybody who mistakenly thinks that Brexit will stop this from impacting the UK should be cautious. Regardless of what the EU approves, the UK might still have to implement it, and in any case the current UK Government supports many of the controversial new measures.

The European Parliament has approved a disgraceful copyright law that threatens to destroy the internet as we know it.

The rulehands more power to news and record companies against Internet giants like Google and Facebook. But it also allows companies to make sweeping blocks of user-generated content, such as internet memes or reaction GIFs that use copyrighted material. The tough approach could spell the end for internet memes, which typically lay text over copyrighted photos or video from television programmes, films, music videos and more.

MEPs voted 438 in favour of the measures, 226 against, with 39 abstentions. The vote introduced Articles 11 and 13 to the directive, dubbed the link tax and censorship machines.

Article 13 puts the onus of policing for copyright infringement on the websites themselves. This forces web giants like YouTube and Facebook to scan uploaded content to stop the unlicensed sharing of copyrighted material. If the internet companies find that such scanning does not work well, or makes the service unprofitable, the companies could pull out of allowing users to post at all on topics where the use of copyright material is commonplace.

The second amendment to the directive, Article 11, is intended to give publishers and newspapers a way to make money when companies like Google link to their stories.Search engines and online platforms like Twitter and Facebook will have to pay a license to link to news publishers when quoting portions of text from these outlets.

Following Wednesday's vote, EU lawmakers will now take the legislation to talks with the European Commission and the 28 EU countries.

I appreciate your concerns regarding the new Copyright reform proposals. However, the objective of Article 13 is to make sure authors, such as musicians, are appropriately paid for their work, and to ensure that platforms fairly share revenues which they derive from creative works on their sites with creators. I will be voting for new text which seeks to exclude small and microenterprise platforms from the scope and to introduce greater proportionality for SMEs.

In the text under discussion, if one of the main purposes of a platform is to share copyright works, if they optimise these works and also derive profit from them, the platform would need to conclude a fair license with the rightholders, if rightholders request this. If not, platforms will have to check for and remove specific copyright content once this is supplied from rightholders. This could include pirated films which are on platforms at the same time as they are shown at the cinema. However, if a platform's main purpose is not to share protected works, it does not optimise copyright works nor to make profit from them, it would not be required to conclude a license. There are exemptions for online encyclopaedias (Wikipedia), sites where rightholders have approved to the uploading of their works and software platforms, while online market places (including Ebay) are also out of the scope.

Closing this value gap is an essential part of the Copyright Directive, which Secretary of State Matthew Hancock supports addressing . My Conservative colleagues and I support the general policy justification behind it, which is to make sure that platforms are responsible for their sites and that authors are fairly rewarded and incentivised to create work. Content recognition will help to make sure creators, such as song writers, can be better identified and paid fairly for their work. Nevertheless, this should not be done at the expense of users' rights. We are dedicated to striking the right balance between adequately rewarding rightholders and safeguarding users' rights. There are therefore important safeguards to protect users' rights, respect data protection, and to make sure that only proportionate measures are taken.

I will therefore be supporting the mandate to enter into trilogue negotiations tomorrow so that the Directive can become law.

[Surely one understand that musicians are getting a bit of a rough deal from the internet giants and one can see where McIntyre is coming from. However it is clear that little thought has been made into how rules will pan out in the real profit driven world where the key take holders are doing their best for their shareholders, not the European peoples. It is surely driving the west into poverty when laws are so freely passed just to do a few nice things, whilst totally ignoring the cost of destroying people's businesses and incomes].

Offsite Comment: ...And from the point of view of the internet giants

EU copyright war a shame, says big tech lobby

See  article from channelnewsasia.com. Siada El Ramly, the executive director of EDiMA, the association that defends the interests of online platforms in Brussels

On Wednesday, the EU will vote on whether to accept two controversial proposals in the new Copyright Directive; one of these clauses, Article 13, has the potential to allow anyone, anywhere in the world, to effect mass, rolling waves of censorship across the Internet.

The way things stand today, companies that let their users communicate in public (by posting videos, text, images, etc) are required to respond to claims of copyright infringement by removing their users' posts, unless the user steps up to contest the notice. Sites can choose not to remove work if they think the copyright claims are bogus, but if they do, they can be sued for copyright infringement (in the United States at least), alongside their users, with huge penalties at stake. Given that risk, the companies usually do not take a stand to defend user speech, and many users are too afraid to stand up for their own speech because they face bankruptcy if a court disagrees with their assessment of the law.

This system, embodied in the United States' Digital Millennium Copyright Act (DMCA) and exported to many countries around the world, is called notice and takedown, and it offers rightsholders the ability to unilaterally censor the Internet on their say-so, without any evidence or judicial oversight. This is an extraordinary privilege without precedent in the world of physical copyright infringement (you can't walk into a cinema, point at the screen, declare I own that, and get the movie shut down!).

But rightsholders have never been happy with notice and takedown. Because works that are taken down can be reposted, sometimes by bots that automate the process, rightsholders have called notice and takedown a game of whac-a-mole , where they have to keep circling back to remove the same infringing files over and over.

Rightsholders have long demanded a notice and staydown regime. In this system, rightsholders send online platforms digital copies of their whole catalogs; the platforms then build copyright filters that compare everything a user wants to post to this database of known copyrights, and block anything that seems to be a match.

Tech companies have voluntarily built versions of this system. The most well-known of the bunch is YouTube's Content ID system, which cost $60,000,000 to build, and which works by filtering the audio tracks of videos to categorise them. Rightsholders are adamant that Content ID doesn't work nearly well enough, missing all kinds of copyrighted works, while YouTube users report rampant overmatching, in which legitimate works are censored by spurious copyright claims: NASA gets blocked from posting its own Mars rover footage; classical pianists are blocked from posting their own performances , birdsong results in videos being censored , entire academic conferences lose their presenters' audio because the hall they rented played music at the lunch-break--you can't even post silence without triggering copyright enforcement. Besides that, there is no bot that can judge whether something that does use copyrighted material is fair dealing. Fair dealing is protected under the law, but not under Content ID.

If Content ID is a prototype, it needs to go back to the drawing board. It overblocks (catching all kinds of legitimate media) and underblocks (missing stuff that infuriates the big entertainment companies). It is expensive, balky, and ineffective.

It's coming soon to an Internet near you.

On Wednesday, the EU will vote on whether the next Copyright Directive will include Article 13, which makes Content-ID-style filters mandatory for the whole Internet, and not just for the soundtracks of videos--also for the video portions, for audio, for still images, for code, even for text. Under Article 13, the services we use to communicate with one another will have to accept copyright claims from all comers, and block anything that they believe to be a match.

This measure will will censor the Internet and it won't even help artists to get paid.

Let's consider how a filter like this would have to work. First of all, it would have to accept bulk submissions. Disney and Universal (not to mention scientific publishers, stock art companies, real-estate brokers, etc) will not pay an army of data-entry clerks to manually enter their vast catalogues of copyrighted works, one at a time, into dozens or hundreds of platforms' filters. For these filters to have a hope of achieving their stated purpose, they will have to accept thousands of entries at once--far more than any human moderator could review.

But even if the platforms could hire, say, 20 percent of the European workforce to do nothing but review copyright database entries, this would not be acceptable to rightsholders. Not because those workers could not be trained to accurately determine what was, and was not, a legitimate claim--but because the time it would take for them to review these claims would be absolutely unacceptable to rightsholders.

It's an article of faith among rightsholders that the majority of sales take place immediately after a work is released, and that therefore infringing copies are most damaging when they're available at the same time as a new work is released (they're even more worried about pre-release leaks).

If Disney has a new blockbuster that's leaked onto the Internet the day it hits cinemas, they want to pull those copies down in seconds, not after precious days have trickled past while a human moderator plods through a queue of copyright claims from all over the Internet.

Combine these three facts:

1. Anyone can add anything to the blacklist of copyrighted works that can't be published by Internet users;

2. The blacklists have to accept thousands of works at once; and

3. New entries to the blacklist have to go into effect instantaneously.

It doesn't take a technical expert to see how ripe for abuse this system is. Bad actors could use armies to bots to block millions of works at a go (for example, jerks could use bots to bombard the databases with claims of ownership over the collected works of Shakespeare, adding them to the blacklists faster than they could possibly be removed by human moderators, making it impossible to quote Shakespeare online).

But more disturbing is targeted censorship: politicians have long abused takedown to censor embarrassing political revelations or take critics offline , as have violent cops and homophobic trolls .

These entities couldn't use Content ID to censor the whole Internet: instead, they had to manually file takedowns and chase their critics around the Internet. Content ID only works for YouTube -- plus it only allows trusted rightsholders to add works wholesale to the notice and staydown database, so petty censors are stuck committing retail copyfraud.

But under Article 13, everyone gets to play wholesale censor, and every service has to obey their demands: just sign up for a rightsholder account on a platform and start telling it what may and may not be posted. Article 13 has no teeth for stopping this from happening: and in any event, if you get kicked off the service, you can just pop up under a new identity and start again.

Some rightsholder lobbyists have admitted that there is potential for abuse here, they insist that it will all be worth it, because it will get artists paid. Unfortunately, this is also not true.

For all that these filters are prone to overblocking and ripe for abuse, they are actually not very effective against someone who actually wants to defeat them.

Let's look at the most difficult-to-crack content filters in the world: the censoring filters used by the Chinese government to suppress politically sensitive materials. These filters have a much easier job than the ones European companies will have to implement: they only filter a comparatively small number of items, and they are built with effectively unlimited budgets, subsidized by the government of one of the world's largest economies, which is also home to tens of millions of skilled technical people, and anyone seeking to subvert these censorship systems is subject to relentless surveillance and risks long imprisonment and even torture for their trouble.

Those Chinese censorship systems are really, really easy to break , as researchers from the University of Toronto's Citizen Lab demonstrated in a detailed research report released a few weeks ago.

People who want to break the filters and infringe copyright will face little difficulty. The many people who want to stay on the right side of the copyright --but find themselves inadvertently on the wrong side of the filters--will find themselves in insurmountable trouble, begging for appeal from a tech giant whose help systems all dead-end in brick walls. And any attempt to tighten the filters to catch these infringers, will of course, make it more likely that they will block non-infringing content.

A system that allows both censors and infringers to run rampant while stopping legitimate discourse is bad enough, but it gets worse for artists.

Content ID cost $60,000,000 and does a tiny fraction of what the Article 13 filters must do. When operating an online platform in the EU requires a few hundred million in copyright filtering technology, the competitive landscape gets a lot more bare. Certainly, none of the smaller EU competitors to the US tech giants can afford this.

On the other hand, US tech giants can afford this (indeed, have pioneered copyright filters as a solution , even as groups like EFF protested it ), and while their first preference is definitely to escape regulation altogether, paying a few hundred million to freeze out all possible competition is a pretty good deal for them.

The big entertainment companies may be happy with a deal that sells a perpetual Internet Domination License to US tech giants for a bit of money thrown their way, but that will not translate into gains for artists. The fewer competitors there are for the publication, promotion, distribution and sale of creative works, the smaller the share will be that goes to creators.

We can do better: if the problem is monopolistic platforms (and indeed, monopolistic distributors ), tackling that directly as a matter of EU competition law would stop those companies from abusing their market power to squeeze creators. Copyright filters are the opposite of antitrust, though: it will make the biggest companies much bigger, to the great detriment of all the little guys in the entertainment industry and in the market for online platforms for speech.

In exactly one week, the European Parliament will hold a crucial debate and vote on a proposal so terrible , it can only be called an extinction-level event for the Internet as we know it.

At issue is the text of the new EU Copyright Directive, which updates the 17-year-old copyright regulations for the 28 member-states of the EU. It makes a vast array of technical changes to EU copyright law, each of which has stakeholders rooting for it, guaranteeing that whatever the final text says will become the law of the land across the EU.

The Directive was pretty uncontroversial, right up to the day last May when the EU started enforcing the General Data Protection Regulation (GDPR), a seismic event that eclipsed all other Internet news for weeks afterward. On that very day, a German MEP called Axl Voss quietly changed the text of the Directive to reintroduce two long-discarded proposals -- "Article 11" and "Article 13" -- proposals that had been evaluated by the EU's own experts and dismissed as dangerous and unworkable.

Under Article 11 -- the " link tax " -- online services are banned from allowing links to news services on their platforms unless they get a license to make links to the news; the rule does not define "news service" or "link," leaving 28 member states to make up their own definitions and leaving it to everyone else to comply with 28 different rules.

Under Article 13 -- the " censorship machines " -- anyone who allows users to communicate in public by posting audio, video, stills, code, or anything that might be copyrighted -- must send those posts to a copyright enforcement algorithm. The algorithm will compare it to all the known copyrighted works (anyone can add anything to the algorithm's database) and censor it if it seems to be a match.

These extreme, unworkable proposals represent a grave danger to the Internet. The link tax means that only the largest, best-funded companies will be able to offer a public space where the news can be discussed and debated. The censorship machines are a gift to every petty censor and troll (just claim copyright in an embarrassing recording and watch as it disappears from the Internet!), and will add hundreds of millions to the cost of operating an online platform, guaranteeing that Big Tech's biggest winners will never face serious competition and will rule the Internet forever.

That's terrible news for Europeans, but it's also alarming for all the Internet's users, especially Americans.

The Internet's current winners -- Google, Facebook, Twitter, Apple, Amazon -- are overwhelmingly American, and they embody the American regulatory indifference to surveillance and privacy breaches.

But the Internet is global, and that means that different regions have the power to export their values to the rest of the world. The EU has been a steady source of pro-privacy, pro-competition, public-spirited Internet rules and regulations, and European companies have a deserved reputation for being less prone to practicing " surveillance capitalism " and for being more thoughtful about the human impact of their services.

In the same way that California is a global net exporter of lifesaving emissions controls for vehicles, the EU has been a global net exporter of privacy rules, anti-monopoly penalties, and other desperately needed corrections for an Internet that grows more monopolistic, surveillant, and abusive by the day.

Many of the cheerleaders for Articles 11 and 13 talk like these are a black eye for Google and Facebook and other U.S. giants, and it's true that these would result in hundreds of millions in compliance expenditures by Big Tech, but it's money that Big Tech (and only Big Tech) can afford to part with. Europe's much smaller Internet companies need not apply.

It's not just Europeans who lose when the EU sells America's tech giants the right to permanently rule the Internet: it's everyone, because Europe's tech companies, co-operatives, charities, and individual technologists have the potential to make everyone's Internet experience better. The U.S. may have a monopoly on today's Internet, but it doesn't have a monopoly on good ideas about how to improve tomorrow's net.

The global Internet means that we have friends and colleagues and family all over the world. No matter where you are in the world today, please take ten minutes to get in touch with two friends in the EU , send them this article, and then ask them to get in touch with their MEPs by visiting Save Your Internet .

Take Action

There's only one Internet and we all live on it. Europeans rose up to kill ACTA , the last brutal assault on Internet freedom, helping Americans fight our own government's short-sighted foolishness; now the rest of the world can return the favor to our friends in the EU.

Back in 2001, the European Parliament came together to pass regulations and set up copyright laws for the internet, a technology that was just finding its footing after the dot com boom and bust. Wikipedia had just been born, and there were 29 million websites. No one could imagine the future of this rapidly growing ecosystem -- and today, the internet is even more complex. Over a billion websites, countless mobile apps, and billions of additional users. We are more interconnected than ever. We are more global than ever. But 17 years later, the laws that protect this content and its creators have not kept up with the exponential growth and evolution of the web.

Next week, the European Parliament will decide how information online is shared in a vote that will significantly affect how we interact in our increasingly connected, digital world. We are in the last few moments of what could be our last opportunity to define what the internet looks like in the future. The next wave of proposed rules under consideration by the European Parliament will either permit more innovation and growth, or stifle the vibrant free web that has allowed creativity, innovation, and collaboration to thrive. This is significant because copyright does not only affect books and music, it profoundly shapes how people communicate and create on the internet for years to come.

This is why we must remember the original objective for this update to the law: to make copyright rules that work for better access to a quickly-evolving, diverse, and open internet.

The very context in which copyright operates has changed completely. Consider Wikipedia, a platform which like much of the internet today, is made possible by people who act as consumers and creators. People read Wikipedia, but they also write and edit articles, take photos for Wikimedia Commons, or contribute to other Wikimedia free knowledge projects. Content on Wikipedia is available under a free license for anyone to use, copy, or remix.

Every month, hundreds of thousands of volunteers make decisions about what content to include on Wikipedia, what constitutes a copyright violation, and when those decisions need to be revised . We like it this way -- it allows people, not algorithms, to make decisions about what knowledge should be presented back to the rest of the world.

Changes to the EU Directive on Copyright in the Digital Single Market could have serious implications for Wikipedia and other independent and nonprofit websites like it.

The internet today is collaborative and open by nature. And that is why our representatives to the EU must institute policies that promote the free exchange of information online for everyone.

We urge EU representatives to support reform that adds critical protections for public domain works of art, history, and culture, and to limit new exclusive rights to existing works that are already free of copyright.

The world should be concerned about new proposals to introduce a system that would automatically filter information before it appears online. Through pre-filtering obligations or increased liability for user uploads, platforms would be forced to create costly, often biased systems to automatically review and filter out potential copyright violations on their sites. We already know that these systems are historically faulty and often lead to false positives. For example, consider the experience of a German professor who repeatedly received copyright violation notices when using public domain music from Beethoven, Bartók, and Schubert in videos on YouTube.

The internet has already created alternative ways to manage these issues. For instance, Wikipedia contributors already work hard to catch and remove infringing content if it does appear. This system, which is largely driven by human efforts, is very effective at preventing copyright infringement.

Much of the conversation surrounding EU copyright reform has been dominated by the market relationships between large rights holders and for-profit internet platforms. But this small minority does not reflect the breadth of websites and users on the internet today. Wikipedians are motivated by a passion for information and a sense of community. We are entirely nonprofit, independent, and volunteer-driven. We urge MEPs to consider the needs of this silent majority online when designing copyright policies that work for the entire internet.

As amendments to the draft for a new Copyright Directive are considered, we urge the European Parliament to create a copyright framework that reflects the evolution of how people use the internet today. We must remember the original problem policymakers set out to solve: to bring copyright rules in line with a dramatically larger, more complex digital world and to remove cross-border barriers. We should remain true to the original vision for the internet -- to remain an open, accessible space for all.

Following massive protests, the EU copyright reform plans were sent back to the drawing board last month. This means that the proposal will be opened up for changes, also to the controversial "upload filter" text. In support of this effort and to show critics that the opposition is real, the protests will soon move beyond the web, to the streets of several European cities.

After years of careful planning and negotiating, the European Parliament was ready to vote on its new copyright directive last month. With backing from large political factions and pretty much the entire entertainment industry, many assumed that proposal would pass.

They were wrong .

The Copyright Directive was sent back to the drawing board following protests from legal scholars, Internet gurus, activists, and many members of the public. Article 13, often referred to as the "upload filter" proposal, was at the center of this pushback.

The vote was a massive blow to those who put their hope on the EU's proposed copyright changes. Following the failure of SOPA and ACTA, this was another disappointment, which triggered several entertainment industry insiders to call foul play.

They claimed that the grassroots protests were driven by automated tools, which "spammed" Members of Parliament were with protest messages, noting that large tech companies such as Google were partly behind this.

This narrative is gaining attention from the mainstream media, and there are even calls for a criminal investigation into the matter.

Opponents of the upload filters clearly disagree. In part triggered by the criticism, but more importantly, to ensure that copyright reform proposals will change for the better, they plan to move the protests to the streets of Europe later this month.

Julia Reda, the Pirate Party's Member of European Parliament, is calling people to join these protests, to have their voices heard, and to show the critics that there are real people behind the opposition. Reda wrote:

We haven't won yet. After their initial shock at losing the vote in July, the proponents of upload filters and the 'link tax' have come up with a convenient narrative to downplay the massive public opposition they faced.

They're claiming the protest was all fake, generated by bots and orchestrated by big internet companies. According to them, Europeans don't actually care about their freedom of expression. We don't actually care about EU lawmaking enough to make our voices heard. We will just stand idly by as our internet is restricted to serve corporate interests.

Thus far, nearly a million people have voiced their discontent with the copyright reform plans through an online petition. And if it's up to Reda, these people should do the same away from their keyboard.

On September 12th, Members of Parliament will vote on the future of the Copyright Directive and the protests are planned two weeks earlier, on August 26th.

Reda notes:

Our goal is clear: The Parliament must adopt alternatives for Article 11 and Article 13 that don't force platforms to install upload filters and don't threaten links and snippets with an extra layer of copyright.

The public protests will take place in several cities including Berlin, Ljubljana, Prague, Stockholm, Vienna, and Warsaw. The organizers hope to gain the same momentum as the ACTA protests did when hundreds of thousands of people marched the streets.

That would certainly make an impact.

The pending update to the EU Copyright Directive is coming up for a committee vote on June 20 or 21 and a parliamentary vote either in early July or late September. While the directive fixes some longstanding problems with EU rules, it creates much, much larger ones: problems so big that they threaten to wreck the Internet itself.

Under Article 13 of the proposal , sites that allow users to post text, sounds, code, still or moving images, or other copyrighted works for public consumption will have to filter all their users' submissions against a database of copyrighted works. Sites will have to pay to license the technology to match submissions to the database, and to identify near matches as well as exact ones. Sites will be required to have a process to allow rightsholders to update this list with more copyrighted works.

Even under the best of circumstances, this presents huge problems. Algorithms that do content-matching are frankly terrible at it. The Made-in-the-USA version of this is YouTube's Content ID system, which improperly flags legitimate works all the time, but still gets flack from entertainment companies for not doing more.

There are lots of legitimate reasons for Internet users to upload copyrighted works. You might upload a clip from a nightclub (or a protest, or a technical presentation) that includes some copyrighted music in the background. Or you might just be wearing a t-shirt with your favorite album cover in your Tinder profile. You might upload the cover of a book you're selling on an online auction site, or you might want to post a photo of your sitting room in the rental listing for your flat, including the posters on the wall and the picture on the TV.

Wikipedians have even more specialised reasons to upload material: pictures of celebrities, photos taken at newsworthy events, and so on.

But the bots that Article 13 mandates will not be perfect. In fact, by design, they will be wildly imperfect.

Article 13 punishes any site that fails to block copyright infringement, but it won't punish people who abuse the system. There are no penalties for falsely claiming copyright over someone else's work, which means that someone could upload all of Wikipedia to a filter system (for instance, one of the many sites that incorporate Wikpedia's content into their own databases) and then claim ownership over it on Twitter, Facebook and Wordpress, and everyone else would be prevented from quoting Wikipedia on any of those services until they sorted out the false claims. It will be a lot easier to make these false claims that it will be to figure out which of the hundreds of millions of copyrighted claims are real and which ones are pranks or hoaxes or censorship attempts.

Article 13 also leaves you out in the cold when your own work is censored thanks to a malfunctioning copyright bot. Your only option when you get censored is to raise an objection with the platform and hope they see it your way--but if they fail to give real consideration to your petition, you have to go to court to plead your case.

Article 13 gets Wikipedia coming and going: not only does it create opportunities for unscrupulous or incompetent people to block the sharing of Wikipedia's content beyond its bounds, it could also require Wikipedia to filter submissions to the encyclopedia and its surrounding projects, like Wikimedia Commons. The drafters of Article 13 have tried to carve Wikipedia out of the rule , but thanks to sloppy drafting, they have failed: the exemption is limited to "noncommercial activity". Every file on Wikipedia is licensed for commercial use.

Then there's the websites that Wikipedia relies on as references. The fragility and impermanence of links is already a serious problem for Wikipedia's crucial footnotes, but after Article 13 becomes law, any information hosted in the EU might disappear--and links to US mirrors might become infringing--at any moment thanks to an overzealous copyright bot. For these reasons and many more, the Wikimedia Foundation has taken a public position condemning Article 13.

Speaking of references: the problems with the new copyright proposal don't stop there. Under Article 11, each member state will get to create a new copyright in news. If it passes, in order to link to a news website, you will either have to do so in a way that satisfies the limitations and exceptions of all 28 laws, or you will have to get a license. This is fundamentally incompatible with any sort of wiki (obviously), much less Wikipedia.

It also means that the websites that Wikipedia relies on for its reference links may face licensing hurdles that would limit their ability to cite their own sources. In particular, news sites may seek to withhold linking licenses from critics who want to quote from them in order to analyze, correct and critique their articles, making it much harder for anyone else to figure out where the positions are in debates, especially years after the fact. This may not matter to people who only pay attention to news in the moment, but it's a blow to projects that seek to present and preserve long-term records of noteworthy controversies. And since every member state will get to make its own rules for quotation and linking, Wikipedia posts will have to satisfy a patchwork of contradictory rules, some of which are already so severe that they'd ban any items in a "Further Reading" list unless the article directly referenced or criticized them.

The controversial measures in the new directive have been tried before. For example, link taxes were tried in Spain and Germany and they failed , and publishers don't want them . Indeed, the only country to embrace this idea as workable is China , where mandatory copyright enforcement bots have become part of the national toolkit for controlling public discourse.

Articles 13 and 11 are poorly thought through, poorly drafted, unworkable--and dangerous. The collateral damage they will impose on every realm of public life can't be overstated. The Internet, after all, is inextricably bound up in the daily lives of hundreds of millions of Europeans and an entire constellation of sites and services will be adversely affected by Article 13. Europe can't afford to place education, employment, family life, creativity, entertainment, business, protest, politics, and a thousand other activities at the mercy of unaccountable algorithmic filters. If you're a European concerned about these proposals, here's a tool for contacting your MEP .

Directive on copyright in the Digital Single Market destined to become a nightmare

OPEN LETTER IN LIGHT OF THE 27 APRIL 2018 COREPER I MEETING

Your Excellency Ambassador, cc. Deputy Ambassador,

We, the undersigned, are writing to you ahead of your COREPER discussion on the proposed Directive on copyright in the Digital Single Market.

We are deeply concerned that the text proposed by the Bulgarian Presidency in no way reflects a balanced compromise, whether on substance or from the perspective of the many legitimate concerns that have been raised. Instead, it represents a major threat to the freedoms of European citizens and businesses and promises to severely harm Europe's openness, competitiveness, innovation, science, research and education.

A broad spectrum of European stakeholders and experts, including academics, educators, NGOs representing human rights and media freedom, software developers and startups have repeatedly warned about the damage that the proposals would cause. However, these have been largely dismissed in rushed discussions taking place without national experts being present. This rushed process is all the more surprising when the European Parliament has already announced it would require more time (until June) to reach a position and is clearly adopting a more cautious approach.

If no further thought is put in the discussion, the result will be a huge gap between stated intentions and the damage that the text will actually achieve if the actual language on the table remains:

• Article 13 (user uploads) creates a liability regime for a vast area of online platforms that negates the E-commerce Directive, against the stated will of many Member States, and without any proper assessment of its impact. It creates a new notice and takedown regime that does not require a notice. It mandates the use of filtering technologies across the board.

• Article 11 (press publisher's right) only contemplates creating publisher rights despite the many voices opposing it and highlighting it flaws, despite the opposition of many Member States and despite such Member States proposing several alternatives including a "presumption of transfer".

• Article 3 (text and data mining) cannot be limited in terms of scope of beneficiaries or purposes if the EU wants to be at the forefront of innovations such as artificial intelligence. It can also not become a voluntary provision if we want to leverage the wealth of expertise of the EU's research community across borders.

• Articles 4 to 9 must create an environment that enables educators, researchers, students and cultural heritage professionals to embrace the digital environment and be able to preserve, create and share knowledge and European culture. It must be clearly stated that the proposed exceptions in these Articles cannot be overridden by contractual terms or technological protection measures.

• The interaction of these various articles has not even been the subject of a single discussion. The filters of Article 13 will cover the snippets of Article 11 whilst the limitations of Article 3 will be amplified by the rights created through Article 11, yet none of these aspects have even been assessed.

With so many legal uncertainties and collateral damages still present, this legislation is currently destined to become a nightmare when it will have to be transposed into national legislation and face the test of its legality in terms of the Charter of Fundamental Rights and the Bern Convention.

We hence strongly encourage you to adopt a decision-making process that is evidence-based, focussed on producing copyright rules that are fit for purpose and on avoiding unintended, damaging side effects.

Yours sincerely,

The over 145 signatories of this open letter -- European and global organisations, as well as national organisations from 28 EU Member States, represent human and digital rights, media freedom, publishers, journalists, libraries, scientific and research institutions, educational institutions including universities, creator representatives, consumers, software developers, start-ups, technology businesses and Internet service providers.

EUROPE  1. Access Info Europe. 2. Allied for Startups. 3. Association of European Research Libraries (LIBER). 4. Civil Liberties Union for Europe (Liberties). 5. Copyright for Creativity (C4C). 6. Create Refresh Campaign. 7. DIGITALEUROPE. 8. EDiMA. 9. European Bureau of Library, Information and Documentation Associations (EBLIDA). 10. European Digital Learning Network (DLEARN). 11. European Digital Rights (EDRi). 12. European Internet Services Providers Association (EuroISPA). 13. European Network for Copyright in Support of Education and Science (ENCES). 14. European University Association (EUA). 15. Free Knowledge Advocacy Group EU 16. Lifelong Learning Platform. 17. Public Libraries 2020 (PL2020). 18. Science Europe. 19. South East Europe Media Organisation (SEEMO). 20. SPARC Europe. 

AUSTRIA  21. Freischreiber Österreich. 22. Internet Service Providers Austria (ISPA Austria). 

BELGIUM  23. Net Users' Rights Protection Association (NURPA)

BULGARIA  24. BESCO -- Bulgarian Startup Association. 25. BlueLink Foundation. 26. Bulgarian Association of Independent Artists and Animators (BAICAA). 27. Bulgarian Helsinki Committee. 28. Bulgarian Library and Information Association (BLIA). 29. Creative Commons Bulgaria. 30. DIBLA. 31. Digital Republic. 32. Hamalogika. 33. Init Lab. 34. ISOC Bulgaria. 35. LawsBG. 36. Obshtestvo.bg. 37. Open Project Foundation. 38. PHOTO Forum. 39. Wikimedians of Bulgaria.  C ROATIA  40. Code for Croatia

CYPRUS  41. Startup Cyprus

CZECH R EPUBLIC  42. Alliance pro otevrene vzdelavani (Alliance for Open Education)
 43. Confederation of Industry of the Czech Republic. 44. Czech Fintech Association. 45. Ecumenical Academy. 46. EDUin. 

DENMARK  47. Danish Association of Independent Internet Media (Prauda) E STONIA. 48. Wikimedia Eesti

FINLAND  49. Creative Commons Finland. 50. Open Knowledge Finland. 51. Wikimedia Suomi. 

FRANCE  52. Abilian. 53. Alliance Libre. 54. April. 55. Aquinetic. 56. Conseil National du Logiciel Libre (CNLL). 57. France Digitale. 58. l'ASIC. 59. Ploss Auvergne-Rhône-Alpes (PLOSS-RA). 60. Renaissance Numérique. 61. Syntec Numérique. 62. Tech in France. 63. Wikimédia France. 

GERMANY  64. Arbeitsgemeinschaft der Medieneinrichtungen an Hochschulen e.V. (AMH). 65. Bundesverband Deutsche Startups. 66. Deutscher Bibliotheksverband e.V. (dbv). 67. eco -- Association of the Internet Industry. 68. Factory Berlin. 69. Initiative gegen ein Leistungsschutzrecht (IGEL). 70. Jade Hochschule Wilhelmshaven/Oldenburg/Elsfleth. 71. Karlsruhe Institute of Technology (KIT). 72. Landesbibliothekszentrum Rheinland-Pfalz. 73. Silicon Allee. 74. Staatsbibliothek Bamberg. 75. Ubermetrics Technologies. 76. Universitäts- und Landesbibliothek Sachsen-Anhalt (Martin-Luther-University Halle-Wittenberg). 77. University Library of Kaiserslautern (Technische Universität Kaiserslautern). 78. Verein Deutscher Bibliothekarinnen und Bibliothekare e.V. (VDB). 79. ZB MED -- Information Centre for Life Sciences. 

GREECE  80. Greek Free Open Source Software Society (GFOSS)

HUNGARY  81. Hungarian Civil Liberties Union. 82. ICT Association of Hungary -- IVSZ. 83. K-Monitor

IRELAND  84. Technology Ireland

ITALY  85. Hermes Center for Transparency and Digital Human Rights. 86. Istituto Italiano per la Privacy e la Valorizzazione dei Dati. 87. Italian Coalition for Civil Liberties and Rights (CILD). 88. National Online Printing Association (ANSO). 

LATVIA  89. Startin.LV (Latvian Startup Association). 90. Wikimedians of Latvia User Group. 

LITHUANIA  91. Aresi Labs. 

LUXEMBOURG.   92. Frënn vun der Ënn. 

MALTA
  93. Commonwealth Centre for Connected Learning

NETHERLANDS  94. Dutch Association of Public Libraries (VOB) 95. Kennisland. 

POLAND  96. Centrum Cyfrowe. 97. Coalition for Open Education (KOED). 98. Creative Commons Polska. 99. Elektroniczna BIBlioteka (EBIB Association). 100. ePan@stwo Foundation. 101. Fundacja Szkola z Klasa@ (School with Class Foundation).  102. Modern Poland Foundation.  103. Os@rodek Edukacji Informatycznej i Zastosowan@ Komputerów w Warszawie (OEIiZK). 104. Panoptykon Foundation. 105. Startup Poland. 106. ZIPSEE. 

PORTUGAL  107. Associação D3 -- Defesa dos Direitos Digitais (D3). 108. Associação Ensino Livre. 109. Associação Nacional para o Software Livre (ANSOL). 110. Associação para a Promoção e Desenvolvimento da Sociedade da Informação (APDSI). 

ROMANIA  111. ActiveWatch. 112. APADOR-CH (Romanian Helsinki Committee). 113. Association for Technology and Internet (ApTI) 114. Association of Producers and Dealers of IT&C equipment (APDETIC). 115. Center for Public Innovation. 116. Digital Citizens Romania. 117. Kosson.ro Initiative. 118. Mediawise Society. 119. National Association of Public Librarians and Libraries in Romania (ANBPR). 

SLOVAKIA  120. Creative Commons Slovakia. 121. Slovak Alliance for Innovation Economy (SAPIE). 

SLOVENIA  122. Digitas Institute. 123. Forum za digitalno dru@bo (Digital Society Forum). 

SPAIN  124. Asociación de Internautas. 125. Asociación Española de Startups (Spanish Startup Association)
 126. MaadiX. 127. Sugus. 128. Xnet. 

SWEDEN  129. Wikimedia Sverige

UK  130. Libraries and Archives Copyright Alliance (LACA). 131. Open Rights Group (ORG). 132. techUK. 

GLOBAL  133. ARTICLE 19. 134. Association for Progressive Communications (APC). 135. Center for Democracy & Technology (CDT). 136. COMMUNIA Association. 137. Computer and Communications Industry Association (CCIA). 138. Copy-Me. 139. Creative Commons. 140. Electronic Frontier Foundation (EFF). 141. Electronic Information for Libraries (EIFL). 142. Index on Censorship. 143. International Partnership for Human Rights (IPHR). 144. Media and Learning Association (MEDEA). 145. Open Knowledge International (OKI). 146. OpenMedia. 147. Software Heritage

The EU is mooting a new copyright regime for the largest market in the world, and the Commissioners who are drafting the new rules are completely captured by the entertainment industry, to the extent that they have ignored their own experts and produced a farcical Big Content wishlist that includes the most extensive internet censorship regime the world has ever seen, perpetual monopolies for the biggest players, and a ban on European creators using Creative Commons licenses to share their works.

Under the new rules, anyone who allows the public to post material will have to maintain vast databases of copyrighted works claimed by rightsholders , and any public communications that matches anything in these databases has to be blocked. These databases have been tried on much more modest scales -- Youtube's Content ID is a prominent example -- and they're a mess. Because rightsholders are free to upload anything and claim ownership of it, Content ID is a font of garbagey, sloppy, fraudulent copyright abuse: five different companies claim to own the rights to white noise ; Samsung claims to own any drawing of its phones ; Nintendo claims it owns gamers' animated mashups ; Sony claims it owns stock footage it stole from a filmmaker whose work it had censored; the biggest music companies in the world all claim to own the rights to "Silent Night" , a rogues' gallery of sleazy copyfraudsters claim to own NASA's spacecraft landing footage -- all in all, these systems benefit the large and the unethical at the cost of small and nimble.

That's just for starters.

Since these filter systems are incredibly expensive to create and operate, anyone who wants to get into business competing with the companies that grew large without having to create systems like these will have to source hundreds of millions in capital before they can even enter the market. Youtube 2018 can easily afford Content ID; Youtube 2005 would have been bankrupted if they'd had to build it.

And then there's the matter of banning Creative Commons licenses.

In order to bail out the largest newspapers in the EU, the Commission is proposing a Link Tax -- a fee that search engines and sites like Boing Boing will have to pay just for the right to link to news stories on the web. This idea has been tried before in Spain and Germany and the newspapers who'd called for it quickly admitted it wasn't working and stopped using it.

But the new, worse-than-ever Link Tax contains a new wrinkle: rightsholders will not be able to waive the right to be compensated under the Link Tax. That means that European creators -- who've released hundreds of millions of works under Creative Commons licenses that allow for free sharing without fee or permission -- will no longer be able to choose the terms of a Creative Commons license; the inalienable, unwaivable right to collect rent any time someone links to your creations will invalidate the core clause in these licenses.

Europeans can write to their MEPs and the European Commission using this joint Action Centre ; please act before it's too late.

The European Copyright Directive was enacted in 2001 and is now woefully out of date. Thanks in large part to the work of Pirate Party MEP Julia Reda, many good ideas for updating European copyright law were put forward in a report of the European Parliament in July 2015. The European Commission threw out most of these ideas, and instead released a legislative proposal in October 2016 that focused on giving new powers to publishers. That proposal was referred to several of the committees of the European Parliament, with the Parliament's Legal Affairs (JURI) Committee taking the lead.

As the final text must also be accepted by the Council of the European Union (which can be considered as the second part of the EU's bicameral legislature), the Council Presidency has recently been weighing in with its own "compromise" proposals (although this is something of a misnomer, as they do little to improve the Commission's original text, and in some respects make it worse). Not to be outdone, German MEP (Member of the European Parliament) Axel Voss last month introduced a new set of his own proposals [PDF] for "compromise," which are somehow worse still. Since Voss leads the JURI committee, this is a big problem.

Last week, the European Parliament's MEP in charge of overhauling the EU's copyright laws did a U-turn on his predecessor's position. Axel Voss is charged with making the EU's copyright laws fit for the Internet Age, yet in a staggering disregard for advice from all quarters, he decided to include a obligation on websites to automatically filter content.

Article 13 sets out how online platforms should manage user-uploaded content appears to have the most dangerous implications for fundamental rights. Never mind that the new Article 13 proposal runs directly contrary to an existing EU law -- the eCommerce Directive - which prohibits member states from imposing general monitoring obligations on hosting providers.

Six countries -- Belgium, the Czech Republic, Finland, Hungary, Ireland, and the Netherlands -- sought advice from the Council's Legal Service last July, asked specifically if the standalone measure/obligation as currently proposed under Article 13 [would] be compatible with the Charter of Human Rights and queried are the proposed measures justified and proportionate? But this does not seem to have been addressed.

The aim of the rule, which is in line with the European Commission's proposals more than a year ago, is to strengthen the music industry in negotiations with the likes of YouTube, Dailymotion, etc. Under Voss' revised Article 13, websites and apps that allow users to upload content must acquire copyright licenses for EVERYTHING, something that is in practice impossible. If they cannot, those platforms must filter all user-uploaded content.

The truth is that this latest copyright law proposal favors the rights-holders above anyone else. And we though MEPs represented the people.

Under disgraceful plans set out last year by the European Commission, news publishers would get extra rights over their content, giving them the right to charge and licence publishers seeking to use snippets or short quotes from articles. The policy has been dubbed 'the link tax'.

Now a key committee of the European Parliament, the Industry, Research and Energy Committee, wants to extend the proposals so that these rights would also cover publishers of academic research. Surely a nightmare for open access and open science. Researchers might have to pay, or might at least have to ask for permission, every time they want to quote another academic's work in their piece.

If the proposed ancillary right is extended to academic publications, researchers, students and other users of scientific and scholarly journal articles could be forced to ask permission or pay fees to the publisher for including short quotations from a research paper in other scientific publications, according to an open letter from Science Europe.

But even if this latest amendment is not adopted, the wider plan could still make it much harder for everyone, including researchers, to include quotations from news articles in their work, the organisation fears. For example, students might have to buy a licence for every newspaper quote they use in a thesis. Links to news and the use of titles, headlines and fragments of information could now become subject to licensing. Terms could make the last two decades of news less accessible to researchers and the public, leading to a distortion of the public's knowledge and memory of past events.

openmedia.org is campaigning against the link tax and notes:

Next week, MEPs on the European Parliament's powerful Civil Liberties committee will vote on whether to approve the Link Tax and mass content filtering. With your help we've been relentlessly fighting to put a stop to this disastrous duo of copyright policy, and this is what all that pressure and hard work comes down to.

Let's be clear: these proposals are abusing copyright to censor the Internet. Backed by powerful publishing lobbyists and unelected European Commissioners, they include sweeping powers for media giants to charge fees for links, and requirements that websites build censorship machines to monitor and block your content. But with the help of tens of thousands of EU citizens, we've made clear to the European Parliament just how dangerous and unpopular these censorship proposals really are.

See  article from boingboing.net . Boing Boing are also somewhat unimpressed by the crap law being generated by the EU.:

The European Commission has a well-deserved reputation for bizarre, destructive, ill-informed copyright plans for the internet , and the latest one is no exception: mandatory copyright filters for any site that allows the public to post material, which will algorithmically determine which words, pictures and videos are lawful to post, untouched by human hands.

These filters already exist, for example in the form of Youtube's notoriously hamfisted Content ID system, which demonstrates just how bad robots are at figuring out copyright law. But even if we could make filters that were 99% accurate, this would still be a catastrophe on a scale never seen in censorship's long and dishonorable history: when you're talking about hundreds of billions of tweets, Facebook updates, videos, pictures, posts and uploads, a 1% false-positive rate would amount to the daily suppression of the entire Library of Alexandria, or all the TV ever broadcast up until, say, 1980.

Companies including Google and Facebook could face repressive legislation if they don't proactively remove illegal content from their platforms that is deemed illegal. That's according to draft EU censorship rules due to be published at the end of the month, which will require internet service providers to significantly step up their actions to address the EU's demands.

In the current climate, creators and distributors are forced to play a giant game of whac-a-mole to limit the unlicensed spread of their content on the Internet.

The way the law stands today in the United States, EU, and most other developed countries, copyright holders must wait for content to appear online before sending targeted takedown notices to hosts, service providers, and online platforms.

After sending several billion of these notices, patience is wearing thin, so a new plan is beginning to emerge. Rather than taking down content after it appears, major entertainment industry groups would prefer companies to take proactive action. The upload filters currently under discussion in Europe are a prime example but are already causing controversy .

The guidelines are reportedly non-binding but further legislation in this area isn't being ruled out for Spring 2018, if companies fail to address the EU's demands.

Interestingly, however, a Commission source told Reuters that any new legislation would not change the liability exemption for online platforms. Maintaining these so-called safe harbors is a priority for online giants such as Google and Facebook 203 anything less would almost certainly be a deal-breaker.

The guidelines, due to be published at the end of September, will also encourage online platforms to publish transparency reports. These should detail the volume of notices received and actions subsequently taken. The guidelines contain some safeguards against excessive removal of content, such as giving its owners a right to contest such a decision.

The European Commission says Internet hosts should pre-censor everything we upload to the Internet for copyright violations. The UK agrees.

Tell the UK's Intellectual Property Office (IPO) we don't want rights holders to monitor and filter the Internet!

The European Commission has published plans to force Internet companies to filter everything we upload in case it infringes copyright laws. The UK's Intellectual Property Office wants our views on the European Commission's plans. The UK Government is minded to support the plans if they can get them to work.

This could block Downfall parodies, campaign videos, TV clips, memes, profile pics -- anything that appears to reuse copyright content, even if it is legal to do so.

We need to stop this censorious, privacy-invading, anti-innovation proposal. Users of social media, photo, music and video sharing sites would all be hit hard.

Any company that lets you upload content to the Internet would check everything you upload against a database of copyright works - a massive violation of privacy in order to create this censorship regime.

If you want to insist on your right to publish, you'd have to supply your name and address and agree that you can be prosecuted by the rightsholder. That will put most people off taking the risk, even if they are within their rights to do so. And if rightsholder think that websites aren't monitoring their users' uploads closely enough, they can take those websites to court too.

Sign the  petition from action.openrightsgroup.org

Open Rights Group has criticised the European Commission's proposals for the Directive on Copyright in the Single Market, published today.

Executive Director Jim Killock said:

Thousands of EU citizens responded to the consultation on copyright, only for the Commission to ignore their concerns in favour of industry. The Commission's proposals would fail to harmonise copyright law and create a fair system for Internet users, creators and rights holders. Instead we could see new regressive rights that compel private companies to police the Internet on behalf of rights holders.

Failure to introduce EU wide freedom of panorama exception

The failure to introduce a harmonised exception for freedom of panorama is both a lost opportunity and a direct snub to the thousands of people who responded to the Commission's consultation on this. It appears that the Commission has simply ignored their opinions and made no mention of freedom of panorama in its proposals. Freedom of panorama is a copyright exception that allows members of the public to share pictures they've taken of public buildings and art. While this right exists in the UK, many European countries do not have this exception, which means that innocuous holiday snaps can infringe copyright.

Compelling intermediaries to filter content

The proposals aim to compel intermediaries, such as YouTube, to prevent works that infringe copyright from appearing on their services through content identification technologies . This is effect would force sites to police their platforms on behalf of rights holders through filters and other technologies that are a blunt instrument.

Such proposals could place unreasonable burdens on smaller operators and reduce innovation among EU tech companies. They will certainly lead to a greater number of incorrect takedowns, as "Robocopy" takedowns cannot take account of fair quotation, parody, or even use of public domain material.

These plans could undermine the UK's hard-won right to parody copyright works. Folk songs and classical performances by amateurs are often misidentified and removed as infringing 'copies' of performances of professional musicians for instance.

New ancillary copyright for news publishers

The proposals suggest a new right for news publishers, designed to prevent search engines and news aggregators from reproducing snippets at the expense of publishers. Although, this is designed to protect the media industry, it had a disastrous impact on news websites when similar proposals were introduced in Spain and Germany. It is also disproportionate that the proposed right would last 20 years, given that it applies to news.

Notes

Open Rights Group is the UK's leading grass roots digital rights organisation, campaigning for the right to privacy and free speech.

ORG's FAQs document on freedom of panorama is available here .

ORG is part of Copyright for Creativity, which campaigns for a new European approach to copyright.

Meanwhile TorrentFreak has been speaking to Pirate Party MEP Julia Reda about the impossibility of the proposals for anyone except for US media giants. TorrentFreak reports:

Today, the European Commission published its long-awaited proposal to modernize the EU's copyright law. Among other things, it will require online services to install mandatory piracy filters. While the Commission intends to strengthen the position of copyright holders, opponents warn that it will do more harm than good.

Despite earlier suggestions that geo-blocking would be banned for streaming portals such as Netflix, these ideas haven't made it into the final text. Instead, it introduces a wide range of reforms that improve the position of rights holders.

One of the suggestions that has a lot of people worried is Article 13, which requires online services to police pirated content. This means that online services, which deal with large volumes of user-uploaded content, must use fingerprinting and filtering mechanisms to block copyright infringing files. The Commission demands:

The Commission proposal obliges such service providers to take appropriate and proportionate measures to ensure the protection of user-uploaded works, for example by putting in place content recognition technologies.

This could, for example, be similar to the Content-ID system YouTube has in place, which hasn't been without controversy itself. While the Commission stresses that small content platforms won't be subject to the requirement, the proposal doesn't define what small means. It also fails to define what appropriate or effective content recognition systems are, creating a fair bit of uncertainty.

The Commission, however, notes that the changes are needed to reinforce the negotiating position of copyright holders, so they can sign licensing agreements with services that provide access to user uploaded content.

Perhaps not surprisingly, this language is directly aligned with recent calls from various music industry organizations. Just a few month ago the BPI asked for new legislation to prevent platforms like YouTube abusing safe harbor protections in order to create royalty havens . With the current proposal, this wish has been partly granted.

TorrentFreak spoke with Pirate Party Member of Parliament Julia Reda who is fiercely against mandatory piracy filters.

There are countless problems with this approach. First of all, Google spent upwards of $60 million on the development of ContentID. Asking every startup or community project to make the same kind of investment is ludicrous.

Most services that deal with user-uploaded content can't invest millions into content recognition technologies so they would have to license it from others such as YouTube. This will only increase the already dominant positions of the major players.

In addition, she points out that automated systems often lead to overt mistakes and are poorly equipped to deal with the finer nuances of copyright.

Just because part of a copyright-protected work shows up in a video, that doesn't mean that the new work constitutes a copyright infringement.

There are numerous exceptions to copyright such as parody or quotation â?� different in every EU country â?� that could justify the re-use of part of a protected work. An algorithm can't detect that. It will take down lots of legal remixes and mashups, thus stifling freedom of expression.

A valid comment, as we witnessed ourselves just a few days ago when one of our perfectly legal videos was inaccurately flagged as a copyright infringement.

YouTube aside, Reda stresses that there are many other platforms to which automated recognition systems are not well suited. Wikipedia, for example, which uses mostly Creative Commons licensed content, or services such as DeviantArt which hosts user-uploaded artwork, or MuseScore that hosts sheet music.

There is no technology available that would reliably detect copyright infringements in these formats. The Commission is asking Internet companies to do the impossible, thus endangering collaborative communities on the Internet as well as European startups.

And there is already a campaign in place against the EU's nasty proposals. The SaveTheLink campaign via OpenMedia writes:

The EU Commission has officially released some of the worst copyright laws in the world, including unprecedented new Link Tax powers for publishing giants.

Despite opposition from over 100,000 Internet users and dozens of other advocacy groups, the EU Commission has charged ahead with its wrong-headed plan. This will affect Internet users around the world.

This comes on the heels of a major court ruling that undermined our right to use hyperlinks. 4 This means it's more important than ever that EU decision-makers do what they can to stop this dangerous #LinkTax plan. 5

The link tax could make some of your favourite content virtually disappear from search engines. Users all over the world will be impacted.

Join us now at SaveTheLink.org to give decision-makers a clear resounding 'no to the link tax'.

Leaked EU Copyright Directive ignores ordinary internet users, presents limited reforms to support creators, researchers, teachers and librarians; while providing a sledgehammer of protectionist measures for the incumbent news, music and film industries.

Several documents have been leaked from the European Commission providing a clear picture of the proposed reforms to copyright that will be presented later in the year. The picture is quite negative as the proposals range from the timid to the openly regressive, such as the introduction of a new ancillary right for news publishers. Several key initiatives have been dropped, including changes to the current exceptions for "freedom of panorama" that allow taking pictures of public art and buildings.

The documents leaked include the Impact Assessment on the Modernisation of EU Copyright Rules , prepared by EU officials; an official communication titled 'Promoting a fair and efficient European copyright-based economy in the digital single market' due to be published later this month; and finally the full text of the proposed new Directive on Copyright in the Single Market

The new directive will complement and not replace current legislation such as the Infosoc Directive, although there are some minor technical modifications. Existing directives will not be reopened for discussion, thus limiting the possibilities for reform in key areas such as Digital Rights Management. The directive applies to the European Economic Area (EEA) and will probably be relevant to the UK whatever shape Brexit eventually takes.

These leaks make the past two years of pre legislative discussions about comprehensive copyright reform feel like a waste of everyone's time, except of course for a few industry lobbyists. The EU is about to throw away the first chance in over a decade to adapt copyright to the digital world, instead choosing classic protectionism for incumbent industries. These measures will not promote the creation of a vibrant digital industry in Europe capable of standing to Silicon Valley - as EU policymakers want.

Below we summarise the main contents of the leaked Directive. There are other initiatives in the wider package, including: a Regulation for online broadcasting, implementation of the Marrakesh treaty on accessibility for the visually impaired, a broad package on copyright enforcement and more provisions to promote European works.

The contents of the Directive are a potpourri of initiatives that include some mandatory limited exceptions for culture and education and measures to help improve remunerations for creators, but in the main are openly about supporting right holders and European industry.

Protectionist measures Publishers ancillary right

This is the most controversial "reform": the creation of a completely new intellectual property right that lasts for 20 years specific for news publishers, which adds a new layer of complexity to internet regulation. The new right has the same scope as rights of reproduction and making available and it's covered by the same exceptions, including criticism or review. The EU is open in aiming to support the financial sustainability of news publishers, and the right does not cover scientific or academic publishers. We are not completely clear on the situation of blogs, but the right is meant to cover only publications by a "service provider".

This right is meant to stop internet news aggregators to simply copy a portion of the news article and stopping revenues flowing to the original site. Similar initiatives in Germany and Spain had a disastrous effect on media access, but we will need more time to fully understand how bad this one is. The first analyses are extremely negative as the new right seems even less constrained than previous initiatives.

User uploaded content: Youtube Law

Another major concession to industry aiming to address the "value gap" created by the disparity between the number of people watching content in platforms - basically Youtube - and the revenues received. The Directive forces relevant online platforms to seek licenses from rightsholders. While there may a case for Google to share some of its profits with rightsholders it is unclear that copyright law is the best way to do it. This law will extend beyond Youtube with unpredictable effects on internet activities, as clever lawyers cotton up to the new powers given to industry.

This new power goes to the heart of internet regulation: the (lack of) liability of intermediaries that enables content to be hosted and linked around, expressed in the E-commerce Directive. In principle the new power covers services that go beyond providing "mere physical facilities" and perform and "act of communication to the public" by taking an active role in curating or promoting content, but this is not always clear cut.

The Directive does not include an obligation to monitor preemptively - which would contravene other laws - but it forces the implementation of technological protection measures to protect works, such as Google's Content-ID - with transparency obligations towards rightsholders.

Fair remuneration for authors and performers

There are some positive measures to protect creators that include transparency over online media sales, powers to renegotiate contracts and alternative dispute resolution mechanisms. Overall they seem positive albeit a bit weak, when compared with the sledgehammers given to news publishers and the music industry.

New mandatory exceptions

These exceptions are positive but in all case limited when compared to the initial demands of libraries, educators and cultural institutions. They do not include many of the more far fetching reforms proposed by civil society and even the European Parliament.

The call for a mandatory exception for "freedom of panorama" campaigned for by many civil society groups including ORG fell on deaf ears. The Commission has simply stated in their documents that the status quo works fine, while politely asking all countries to implement the exception.

Text and Data Mining exception

This exception allows the making of copies to perform analysis for scientific research by non-profit or public interest organisations. There is no compensation for rights holders and an explicit ban on contractual clauses overriding the exception. Technical measures to restrict access or copying are allowed but should not affect the exception.

This is a positive move, although many research organisations and libraries had been asking for a broader scope as they feared that much important research may be excluded.

Online Teaching exception

The rationale for this exception is the lack of clarity on whether existing exceptions in Infosoc and Database Directive apply to online education, particularly cross border access . The exception covers only "educational establishments," which must control access to the resources, and will likely exclude many online educational initiatives. The exception allows for licensing schemes to take precedence over the exception and this could be used to weaken the provisions.

Digital Preservation

Libraries, archives and similar cultural heritage institutions will be allowed to make necessary copies of works for preservation, but only of works in their permanent collections. The exception is only for internal copies and not for online libraries.

Supporting the digital market

A couple of fairly minor initiatives that are positive but of limited impact in the context of the once-in-twenty-years reform of copyright.

Out of commerce works

Libraries have been lobbying for a long time to be allowed to engage in collective licensing deals to digitise and distribute out of commerce works. They see this as both an extension of their mission and an opportunity to generate funds, although in principle this is framed as non-commercial cost recovery of the costs of mass digitisation. The exception only applies to works first published in the EU. This is not a full free copying exception, but the option to enter extended collective licensing deals without the need to get approval from every author. There is a six month compulsory notice in case authors are around and object.

Video on demand

The directive forces member states to create a voluntary "negotiation mechanism" with the support of and impartial body to help parties license work for VoD services.

In summary, a disappointing culmination of a two year discussion that started with high hopes of seeing Europe take bold moves to really modernise copyright. The legislative process starts now however and while the UK is in the EU ORG will continue to try to influence the shape of these laws as they go through the European Parliament. We must also remember that this is all based on leaked documents and the European Commission may still make some changes.

Sweden's supreme court has sided with commercial copyright concerns and ruled that the non-profit internet giant Wikimedia breaches Sweden's copyright laws by publishing photos of public artworks.

Wikimedia is the group behind the free online encyclopaedia Wikipedia. It has created a vast online knowledge repository by allowing members of the public to group-edit entries and upload pictures to its pages for educational purposes.

The disgraceful judgement is a victory for the Visual Copyright Society in Sweden (Bildupphovsrätt  i Sverige - BUS), which sued Wikimedia at Stockholm District Court for publishing photos of Swedish public sculptures and other public artworks without first getting permission from the artists.

In its judgement the supreme court affirmed that Swedish copyright law does permit members of the public to take pictures of public artworks. But, the court said:

It is different when it's a database where artworks are made available to the public to an unlimited extent without copyright-holders receiving any remuneration. A database of this kind can be deemed to have a commercial value that is not inconsiderable.

Wikimedia's Swedish operations manager Anna Troberg told The Local:

We are naturally very disappointed. We view this as an anachronistic and restrictive interpretation of copyright laws. It also runs counter to recommendations from the European Court of Human Rights.

Troberg said the group would now consult its lawyer and its parent foundation in the United States before deciding what action to take.

Torrentfreak commented on a draft document indicating some rather censorial legislation is being considered by the EU Commission. Torrentfreak explains:

A leaked document has revealed the EU Commission's plans for copyright in 2016. In addition to tackling the issue of content portability in the spring, the draft suggests the Commission will explore a follow-the-money approach to enforcement, clarify rules for identifying infringers, and examine the crosss-border application of injunctions.

Noting that creative rights have little value if they cannot be enforced, the Commission calls for a balanced civil enforcement system to enable copyright holders to fight infringement more cheaply and across borders.

A 'follow-the-money' approach, which sees the involvement of different types of intermediary service providers, seems to be a particularly promising method that the Commission and Member States have started to apply in certain areas, the draft reads.

It can deprive those engaging in commercial infringements of the revenue streams (for example from consumer payments and advertising) emanating from their illegal activities, and therefore act as a deterrent.

On this front the Commission says it intends to take immediate action to set up a self-regulatory mechanism with a view to reaching agreement next spring. While voluntary, the EU says the mechanism can be backed up by force if necessary.

The document also highlights a need to address the (cross-border) application of provisional and precautionary measures and injunctions . Clarification is needed, but this appears to be a reference to EU-wide site blocking.

Furthermore, the EU indicates it will examine the rules for copyright takedowns and the potential for illicit content to be taken down and remain down.

The Commission is also carrying out a comprehensive assessment and a public consultation on online platforms, which also covers 'notice and action' mechanisms and the issue of action remaining effective over time (the 'take down and stay down' principle), the draft reads.

Finally, Julia Reda MEP is raising alarms over the Commission's intent to clarify the legal definition of communication to the public and of making available .

The Commission is considering putting the simple act of linking to content under copyright protection, Reda writes.

This idea flies in the face of both existing interpretation and spirit of the law as well as common sense. Each weblink would become a legal landmine and would allow press publishers to hold every single actor on the Internet liable.

Update: EU claims that it is not seeking a hyperlink tax or EU harmonised website blocking

19th November 2015. See  article from publicaffairs.linx.net

Linx is a trade group of UK ISPs so has a keen interest on issues being discussed by the EU. Linx reports:

EU Commissioner Andrus Ansip has confirmed that forthcoming European copyright proposals will not include introduce ancillary copyright rules, and will not attempt to harmonise web-blocking laws across the EU.

In an interview with Politico, the European Commission Vice President for the Digital Single Market said that there were no plans to require news aggregators and pay publishers for the right to link to their content.

Ansip said that it was too early to tell what lessons would be learned from ancillary copyright laws recently passed in Spain and Germany.

Wikipedia is campaigning against yet more censorial legislation from the EU. Wikepedia writes:

Absence of full Freedom of Panorama means we can't illustrate Wikipedia properly.  

For more than a decade, volunteers have compiled countless facts and contributed millions of hours to build Wikipedia. Photographers have donated hundreds of thousands of photos to illustrate the articles.

The reason Wikipedia can freely depict public spaces in most of the countries in the European Union is that we enjoy full Freedom of Panorama . This is an exception to copyright that allows people to make and use photographs of public spaces without restriction, while at the same time protecting the architect's or visual artist's rights.

Now, the free use of many of these images is in danger by a proposal in the European Parliament . If the restrictive text accepted by the Legal Affairs Committee is adopted in the course of the upcoming EU legislative procedure on copyright reform, hundreds of thousands of images on Wikipedia would no longer be free and thus would no longer belong in Wikipedia.

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