EU Parliament OKs Copyright Changes Negotiating Stance With Upload Monitoring
EU lawmakers Wednesday adopted their negotiating position on copyright modification, paving the way for "trialogue" talks with the European Commission and Council. The 438-226 vote came after what Member of the European Parliament Virginie Roziere, of the Socialists and Democrats and France, called "virulent" lobbying and misinformation, much of it from the U.S. Lawmakers got more messages from the U.S. than from the whole of the EU on the proposal for a directive, she said at a news briefing. The amended text made key "tweaks" to the original report by the lead Legal Affairs Committee, Parliament said. The most contentious proposals -- for platforms to monitor user uploads for copyright infringements (Article 13), and for news publishers to be given a new right to remuneration (Article 11) -- are still in play.
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Content owners cheered. Digital rights activists, consumers, the tech industry and some MEPs were critical.
Many of the amendments to the original EC proposal aimed to ensure that artists such as musicians, performers and script authors, as well as news publishers and journalists, get paid for their work when it's used by sharing platforms such as YouTube or Facebook and news aggregators such as Google News, Parliament said. The changes would require online platforms and aggregators pay content owners for copyrighted material they make available, and would allow journalists, not just their publishing houses, to be remunerated. The amendments try to encourage startups and innovators by exempting small and micro platforms from the directive.
Under the changes, merely sharing hyperlinks to articles along with "individual words" describing them would be free from copyright requirements, and any actions platforms take to ensure that uploads aren't infringing "must be designed in such a way as to avoid catching 'non-infringing works,'" Parliament said. Platforms would install rapid redress systems operated by humans, not algorithms, to allow users to lodge complaints about wrongfully removed content. Uploading to online encyclopedias such as Wikipedia would be excluded from the rules.
Article 13 "has become a truly complex provision," emailed Hogan Lovells (Frankfurt) copyright attorney Nils Rauer. The definition of "online content sharing provider" is long and complicated, and if a service provider meets the criteria, it's deemed to perform an act of communicating to the public regardless of whether the criteria developed by the European Court of Justice in the information society directive are met, he said. While case law influenced the definition used in the proposal, if the wording survives trialogue talks, "we would have two different definitions of what forms an act of communicating to the public."
While there's no explicit reference to the safe harbor provisions of the e-commerce directive, the determination that online content sharing service providers by definition perform an act of communicating to the public means that those providers can't benefit from safe harbor since it won't apply, said Rauer. To avoid liability for copyright infringement, some sort of monitoring and filtering will be necessary, he said. Still unanswered is whether the "cooperate in good faith" (with right holders) approach set out in Article 13 will be effective to prevent the spillover effect of lawful content being taken offline to avoid liability, he said.
The vote was around 60 above the needed majority, blogged telecom consultant Innocenzo Genna. With this session of Parliament ending in April, "there will be a rush against time since the outcome of the Trialogue, if any, will have to be approved again" by the Parliament and Council, he said. Any substantial agreement among the EU institutions will have to happen early next year to make the subsequent actions possible, he said.
Noncontroversial trialogues take between three and four months, "but this is not the case," Genna wrote. The Council and Parliament positions don't seem too far apart and they'll be willing to make a deal, he said. But it's not clear if they can agree on issues such as what a "snippet" of news is and whether the scope of the modification should include smaller providers and startups, he said.
Copyright revisions will now become part of the political campaign for the 2019 European elections, said Genna. While mainstream media in the form of the largest publishers and broadcasters support changes on the basis of "well-known arguments (Google and other US guys have to pay journalists and artists)," the opinion of internet media is different, he said. Many MEPs and governments might be uneasy about backing copyright modification while campaigning, he said. Parliament and the Council should agree on language that lowers the potential risks for freedom of speech and access to/exchange of information online, Genna said.
Swift Reactions
Supporters and foes reacted swiftly.
Content owners cheered. Approval of the publisher's right is "a great day for the independent press and for democracy," said the European Magazine Media Association, European Newspaper Publishers' Association, European Publishers Council and News Media Europe. The Federation of European Directors, Federation of Screenwriters in Europe, Society of Audiovisual Authors, Federation of European Publishers and Independent Music Companies Association also welcomed more remuneration for digital works.
Parliament "squandered the opportunity to get the copyright reform on the right track," said MEP Marietje Schaake, of the Group of the Alliance of Liberals and Democrats for Europe and the Netherlands. "This is a disastrous result" for protection of fundamental rights, ordinary internet users and Europe's future in the field of artificial intelligence, she said. MEP Julia Reda, of the Greens/European Free Alliance and Germany, said that "by endorsing new legal and technical limits on what we can post and share online, the European Parliament is putting corporate profits over freedom of speech and abandoning long-standing principles that made the internet what it is today." Making all but the smallest platforms liable for any infringements committed by their users will leave sites and apps "no choice but to install error-prone filters," she said.
The Computer & Communications Industry Association accused a majority of MEPs of ignoring the "warnings of the online sector, academics, innovative publishers, research institutions and civil rights groups on the real threats this proposal causes." Far "from advancing the European digital economy through the Digital Single Market, the proposals ... will lead to significant additional burdens on companies seeking to serve the European market," emailed techUK Head of Policy Giles Derrington. Requirements for platforms to filter all user content likely will lead to reduced user experience and over-removal of legitimate content, he said.
"The aftermath of a law that regulates all internet companies in Europe as if they were Google and Facebook is clear: an internet in Europe where only Google and Facebook can survive," said European Digital Rights Senior Policy Analyst Diego Naranjo. Platforms will have no option but to scan and filter any content consumers want to upload, and much of it will be unfairly blocked, said European Consumer Organisation Director General Monique Goyens. "This protectionist reform will only benefit the copyright industry at the expense of consumers." Bad ideas "travel fast across the Atlantic," said Public Knowledge Global Policy Director Gus Rossi. It's a matter of time before the American entertainment industry tries to enshrine such "misguided reforms," he warned.