EU Sides with Tech Companies on Tough Copyright Law -- For Now

Last week the EU Copyright Directive, a controversial bill that would have required companies like Google and Facebook to screen all uploaded content for copyright violations, was voted down by the European Parliament. When it comes up for a second vote in September, it may pass -- with far-reaching effects.

The main meeting hall at the European Parliament building in Brussels, Belgium. Photo taken in 2016. Photo: Robyn Mack, CC

On July 5, the European Parliament voted down the proposed European Copyright Directive. The vote was close, 318 against the bill, 278 for it, and 31 abstaining.

What the law was designed to do was to curtail copyrighted material being distributed for free on the internet. The specific targets of the law were the so-called ‘content aggregators’, those who redistribute content to others. That content can be material the aggregators gather on their own. It can also include material shared by third parties on their sites. Though the idea would be this would be applied generally, the primary concern of the law is about mass public distribution of copyrighted material. Those who personally share links or copies of material via email and texts are not a focus of this law.

Google, Facebook, Reddit and Wikipedia are some of the content aggregators this law was intended to cover. The myriad of news consolidation services such as those provided by companies like Microsoft (Microsoft News), Flipboard, and Sony’s News Suite application would also have been affected by the law.

Many media companies, from Viacom in the entertainment industry to Axel Springer in the scientific publishing business, have complained for years that their content is being uploaded and distributed online by these and many other content aggregators. They object that the content gets uploaded without either notification or payment to the original publisher. What bothers them even more is that the content aggregators often make money on the illegal republishing of their material – via advertising on the aggregator sites. Up until now, the most they were able to hope for was immediate takedown of copyrighted material if an infraction was reported to the aggregator. Most aggregators have been willing to do that, given notice and time to remove the material. The media companies have argued that is not enough and that a more proactive approach should be required.

The new EU Copyright Directive was far tougher in what it would have required.

The two sections of that law which have received most concern from the aggregators were Articles 13 and Article 11. Article 13 was the ‘policing’ clause. It would require all online platforms of any kind either to check every item coming online as it was being posted for possible copyright violations. Such violations would include outright copying. It might also cover issues such as sampling of materials (such as when a personal video has copyrighted material playing in the background, even just because it might have been shot at a night club), and possibly even “memes”, the reuse of images which might be copyrighted and then altering them slightly to make a joke of them, samples of software code, and various livestreaming events where some copyrighted material might be present within the image frames. Article 11 would have required companies like Facebook, Microsoft, and Google to pay providers of news articles when they post small snippets of those articles online. If those platforms could not comply with the law, they would have to shut down such sharing. In both cases companies which did not actively comply with the law would be punished.

The arguments against Article 13 were extensive. There are solutions for trapping some of this kind of illegal content through automated means. One is called Content ID and is used by Google’s YouTube service to catch copyrighted video material posted on its site. It is expensive, though, and even after over 11 years of refinement it still makes mistakes both in blocking and in allowing content through. Providers also pointed out the law was too vague, since it was unclear if incidental sharing of copyrighted content (such as a photo with someone wearing a T-shirt which has a copyrighted image on it, or music in the background at a public event filtering onto a video) might need to be restricted. Memes, mash-ups and outright parodies, the third of which is covered by copyright law in the U.S. as legal, were also in question as to whether they might be restricted. There was also the issue of ‘false positives’ in the content policing, where the wrong materials might be blocked because the policing algorithm was faulty.

Although Article 11 did not get the same public outcry as Article 13, it was seen by many as potentially even more dangerous. News sites which use the article snippets as a key way to share information were clearly the immediate target. Yet there was also a concern that the same payment law might affect search engines such as those from Google, Microsoft’s Bing, and other services, when the search results locate a news article and then include its snippet in search results.

Those who had proposed the bill in the EU felt the legal restrictions were just and reasonable. They also felt, especially after the many Facebook recent privacy fiascos, the atmosphere might be right in Europe for a crackdown on the content aggregators. It was also the first major revision in EU copyright law since 2001. Then the world of the internet was a very different place.

The tech giants who opposed the bill lobbied hard to get it stopped, understandably so because of the serious burdens it would have placed on them. A long list of those who helped create the Internet and have helped further its technology also fought against the bill. That second group, which included people such as Internet Pioneer Vint Cerf, Inventor of the World Wide Web Tim Berners-Lee, the head of the Mozilla Foundation (the developer of the Firefox browser), Founders and Co-Founders of the Electronic Frontier Foundation, sent a letter to Antonio Tajani MEP, President of the European Parliament, on June 12 opposing the bill.

On this day the bill was voted down. The narrow margin of defeat, with 278 for the new bill and 318 against it, was far closer than many had predicted. That it was this close does say something about a rising tide of those against the group now sometimes being referred to as the “data barons”, an oblique reference to the “oil barons” whose monopolistic enterprises were broken up over a century ago. With Facebook and Google both under fire for their abusive gathering and use of users’ personal data, the time may be coming when that vote could easily have gone the other way.

That time could be sooner than any of the content aggregators might like. Now voted down in its current form, the bill will be revised, presented again to the EU Parliament, and then debated once again. This time it might pass.