Last month, members of the EU Parliament voted to advance a controversial copyright directive that contains provisions forcing tech giants to install content filters, while also setting in place a potential tax on hyperlinking.
The bill, known as Article 13, would filter everything anyone posts online and match it to a crowdsourced database of "copyrighted works" which anyone can add or change.
Good job, EU.— Timania (@TimaniaTM) September 12, 2018
Once again, you have proven that your MEPs are old people who have not understood until today and who also boast of their "fight against unauthorized sharing" so that they leave like him:#uploadfilter #SaveTheInternet #uploadfilter pic.twitter.com/Yw90onngut
Another portion of the directive, Article 11, is a "link tax" that would ban a quoting more than one word from an article which links to another publication - unless you are using a platform which has paid for a linking license. The link tax does however allow member states to create limitations and exceptions in order to protect online speech.
What comes next?
Now that the directive has passed through Parliament, the next step, according to the Electronic Frontier Foundation, is the "trilogues," which are closed-door meetings between European government officials, the European commission and the European Parliament - which will be the last time that the Directive's language can be substantially changed without a second debate in Parliament.
That said, one woman is committed to shining light on the secret discussions:
Normally the trilogues are completely opaque. But Julia Reda, the German MEP who has led the principled opposition to Articles 11 and 13, has committed to publishing all of the negotiating documents from the Trilogues as they take place (Reda is relying on a recent European Court of Justice ruling that upheld the right of the public) to know what's going on in the trilogues).
This is an incredibly important moment. The trilogues are not held in secret because the negotiators are sure that you'll be delighted with the outcome and don't want to spoil the surprise. They're meetings where well-organised, powerful corporate lobbyists' voices are heard and the public is unable to speak. By making these documents public, Reda is changing the way European law is made, and not a moment too soon. -EFF
That said, Articles 11 and 13 "are so defective as to be unsalvageable," writes the EFF, adding that "when they are challenged in the European Court of Justice, they may well be struck down."
The trilogues, meanwhile, will struggle to clarify all of the terms contained within the directive in order to resolve the inevitable potential for abuse and ambiguity. The trilogues can expand on the Directive's broad brush strokes and proeduce quantifiable terms that will minimize negative effects of the law while it works its way through the courts.
Gaming the system
As the EFF notes, existing copyright filters such as YouTube's ContentID sytstem are designed to block users who attract too many copyright complaints - but what if people are making false claims in order to punish ideological opponents? The platforms must be able to identify and terminate the accounts of such individuals who repeatedly make false or inaccurate claims concerning copyrights.
A public record of which rightsholders demanded which takedowns would be vital for transparency and oversight, but could only work if implemented at a mandatory, EU-level.
On links, the existing Article 11 language does not define when quotation amounts to a use that must be licensed, though proponents have argued that quoting more than a single word requires a license.
The Trilogues could resolve that ambiguity by carving out a clear safe-harbor for users, and ensure that there’s a consistent set of Europe-wide exceptions and limitations to news media’s new pseudo-copyright that ensure they don’t overreach with their power. -EFF
Meanwhile, the trilogues must absolutely safeguard against internet behemoths such as Facebook, Google and MSM news websites from creating licensing agreements that would exclude everyone else.
News sites, for example, should be able to opt out of requiring licenses for sites which would like to link to them without fear of lawsuits - however these opt-outs should be universally applied to websites big and small, so that the law doesn't give unfair leverage to companies like Google, which could simply allow partners to negotiate an exclusive exemption, while punishing smaller players who would be drowning in license fees.
The Trilogues must establish a clear definition of "noncommercial, personal linking," clarifying whether making links in a personal capacity from a for-profit blogging or social media platform requires a license, and establishing that (for example) a personal blog with ads or affiliate links to recoup hosting costs is "noncommercial."
These patches are the minimum steps that the Trilogues must take to make the Directive clear enough to understand and obey. They won't make the Directive fit for purpose – merely coherent enough to understand. Implementing these patches would at least demonstrate that the negotiators understand the magnitude of the damage the directive will cause to the Internet. -EFF
Meanwhile, the organizers of the trilogues are under the impression that they can iron out the wrinkles in the Directive within a few weeks of closed-door meetings. We have our doubts.