Friday, 29 June 2018

What's all the fuss about? It's those EU copyright reforms

Following on from previous CopyKats, the noise around the proposed changes to EU copyright law has reached a crescendo - and it's not just the tech giants and content behemoths who are lobbying at all levels, the former against changes, the latter very much in favour of the main changes in the Directive for Copyright in the Digital Single Market (known as Copyright Directive) which was approved by the European Parliament's Committee on Legal Affairs on the 20th June 2018.

The most controversial provisions are in the current draft of Article 13, which requires internet platforms to perform automatic filtering of the content that their users have uploaded. As the CopyKat reported, a group of over 70 internet leaders including Vint Cerf and British physicist and computer scientist Tim Berners-Lee.addressed Members of the European Parliament (MEPs) by sharing their concerns regarding the proposed text of the Directive. In their June 12th letter they said “Article 13 takes an unprecedented step towards the transformation of the Internet from an open platform for sharing and innovation, into a tool for the automated surveillance and control of its users” making the argument that this requirement goes against the previously established balance in the E-Commerce Directive and the ‘Safe Harbour’ provision in Article 15 of the InfoSoc Directive, where users uploading content are solely responsible for its legality, whereas platforms may be required to take down illegal content once it is brought to its attention. 

Julia Reda, Member of the European Parliament, (for the Pirate Party) agreed with the internet gurus, criticising the high error rate expected from the algorithms and the resulting blocking of content. Reda describes on her website a phenomenon called "Startup killer". And Reda suggests that the filters will be so complex that they can only be developed by the big US tech giants. Small companies and start-ups will not be able to afford the programming and so every small platform that offers user-generated content will have to acquire their filter system from the big players. Reda then suggests that this creates a monopoly for the likes of Google. 

Article 11 is the other main focus of attention. This would require of a new level of engagement between platforms and news creators and providers. Reda writes, "The automatic link previews social networks generate when users share links (showing the article headline, a thumbnail picture and a short excerpt) would require a license, as well as anyone analysing news content on the web like news aggregators, media monitoring services and fact checking services." This is the so called 'Link Tax'. Reda also claims that that Article 11 could limit freedom of expression and access to information, boost fake news, discourage startups and small publishers saying "Making it legally risky or expensive to link (with snippets) to news risks disincentivising the sharing of reputable news content. Since “fake news” and propaganda outlets are unlikely to charge for snippets, their content could as a result become more visible on social networks."

But Google, one of the leading lights in the battle against the proposed changes, has faced criticism. The Financial Times reports that Google has been accused of encouraging news publishers participating in its Digital News Initiative to lobby against proposed changes to EU copyright law at a time when the beleaguered sector is increasingly turning to the search giant for help. Google itself opposes the copyright directive, which it says would impede the free flow of information, and in a recent email to publishers suggested they contact members of the European Parliament to express their views. The search engine has developed close ties with publishers via its DNI programme, which provides support for digital journalism as well as innovation grants from a €150m fund. Angela Mills Wade, executive director of the European Publishers’ Council, said Google was trying to preserve the status quo. “It seems to be arguing for the news eco-system of today to continue,” she told the FT. “We feel that Google has largely created a news eco-system where it is apparently perfectly acceptable for companies to go around helping themselves to news media content for their own purposes.

EU-based media organisations have hailed the Copyright Directive in a joint statement calling it “a crucial stand for the future of a free, independent press.” “The internet is only as useful as the content that populates it.” The statement also applauded Article 11, known as the “neighbouring right,” for “encouraging further investment in professional, diverse, fact-checked content for the enrichment and enjoyment of everyone, everywhere.”

So - who else is having a say? Well first off, a group of open science advocates have made the point that the new proposals will conflict with Europe’s principles of open science and freedom of expression. Vanessa Proudman, European Director of the Scholarly Publishing and Academic Resources Coalition (SPARC), a science-advocacy group in Apeldoorn, the Netherlands said “Copyright law must not hamper open science. The EU has made significant headway towards open access of research funded by European citizens. The proposed new rules would clearly impede further progress, threatening the visibility of Europe’s research".  Maria Rehbinder from the Association of European Research Libraries said “We really don’t want further paywalls on top of any research materials libraries have paid for already”. 

One of the high profile stories circulating the internet is that Article 13 would impact the creation and sharing of memes - not least as memes often use copyrighted images from popular films and TV shows. Global News reports "Pepe the Frog, the “Distracted Boyfriend” meme and Arthur’s balled-up fist are all under threat. So are reactions GIFs such as the one of a confused Zach Galifianakis, or the clip of Steve Carrell shouting ‘No!’ in The Office. EU lawmakers may inadvertently destroy the internet’s robust meme culture with a proposed law designed to fight online piracy. One article in the legislation would force online platforms such as Google, Facebook, YouTube and Twitter to automatically censor copyrighted content uploaded by anyone who isn’t licensed to share it." So called mash-ups and re-mixes have been given the same attention with their presumed demise highlighted. Matt made the point in the last CopyKat that a filtering and blocking system could lead to some major mistakes. Whilst the Dancing Baby vs Prince case is now settled, at the heart of that was ine question of whether the mother in question, Stephanie Lenz, could use fair dealing as a defence - or at least whether the rights owners (Universal Music took a lead) issuing the take down should have considered the doctrine before removing the video of the toddler dancing to Prince's music. As Matt argued "many mistakes will occur ....  a lot of content may be removed or blocked because of the system being unable to recognise what falls under exception or limitation, such as parody or quotation, and how they differ across the various Member States. Additionally, the proposed text by Commission and compromise texts of the Parliament and the Council does not contain any provision which will bring either clarity or consistency in defining “which Internet platforms would be required to comply with the provision, and which may be exempt”. 

AbovetheLaw give the example of  a simple mistakes - In 2013, Fox sent a take down notice against a book by Cory Doctorow because the book and one of Fox’s hit television shows shared the same name: Homeland. They add:  "Remember the Super Bowl ad Chrysler released this year, using the words of Martin Luther King, Jr. to sell a Dodge Ram truck? One viewer cleverly replaced the original audio of the ad, which highlighted the importance of service, with audio from another portion of the same MLK speech that instead criticized consumer culture, including a line calling out Chrysler by name. This version of the ad was flagged by YouTube’s content ID and taken down, but was later restored because it is obviously a fair use. The very fact that it was removed at all, though, demonstrates the inability of automated systems to determine whether a use is criticism, parody or some other non-infringing use."

Professorf Lessig
Back in August 2013 Lawrence Lessig filed a federal complaint after YouTube forced the Harvard University law professor and Creative Commons co-founder to take down a video of a lecture that featured people dancing to a copyrighted sound recording. Supported by the Electronic Frontier Foundation (EFF), Lessig said: “The rise of extremist enforcement tactics makes it increasingly difficult for creators to use the freedoms copyright law gives them. I have the opportunity, with the help of EFF, to challenge this particular attack. I am hopeful the precedent this case will set will help others avoid such a need to fight. The company who issued the take down issued an apology. 

“It’s a blunt instrument and it’s going to lead to lots of over-censorship,” Jim Killock, head of the U.K.-based Open Rights Group, told Global News. And he is not alone - numerous civil rights groups have pointed out that the proposed changes could be used to restrict freedom on the internet and could be used to censor content and sharing.   Communia, which advocates policies that expand the public domain and increase access to and reuse of culture and knowledge, and seeks to limit the scope of "exclusive copyright to sensible proportions that do not place unnecessary restrictions on access and use", issued a key recommendation to delete Article 13 from the proposal "as it addresses a problem that lacks empirical evidence confirming its existence. Article 13, as drafted by the Commission, would limit the freedom of expression of online users and create legal uncertainty that has the potential to undermine the entire EU online economy. As such it is unworthy of being included in a Directive proposal that is intended to modernize the ageing EU copyright framework".

InfoJustice was scathing on the automatic filtering proposals saying: "The upload filtering proposal stems from a misunderstanding about the purpose of copyright. Copyright isn’t designed to compensate creators for each and every use of their works. It is meant to incentivize creators as part of an effort to promote the public interest in innovation and expression. But that public interest isn’t served unless there are limitations on copyright that allow new generations to build and comment on the previous contributions. Those limitations are both legal, like fair dealing, and practical, like the zone of tolerance for harmless uses. Automated upload filtering will undermine both. What began as a bad idea offered up to copyright lobbyists as a solution to an imaginary “value gap” has now become an outright crisis for future of the Internet as we know it. Indeed, if those who created and sustain the operation of the Internet recognise the scale of this threat, we should all be sitting up and taking notice." 

Of course neither side wants to give ground: The recorded music sector's main lobby group, the IFPI, said Article 13 restores fairness to the digital market. It’s about looking out for workers in the creative industries, helping to secure them a future that is financially viable where we continue to benefit from their services" and a cross section of rights owners from the music, film, sports and television sectors (amongst others in the cultural and creative industries) have now sent a letter to MEPs pointing to "a cynical campaign from tech companies flooding the inboxes of MEPs with scaremongering that the copyright directive would be the end of the internet"  adding  "Please note that this is the 20th anniversary of their first claim that copyright provisions would break the internet. And it has never happened."

And the actual creators of music from across Europe are calling on MEPs to protect Europe’s status as a global hub for culture saying that the tech giants must pay fairly for content hosted on their platforms. Robert Ashcroft, Chief Executive of PRS for Music, said: “After three years of debate, one of the most controversial pieces of legislation ever to come before the European Parliament is about to go to the vote. This is about copyright and specifically about the rights of creators versus those of the Internet giants; it is about the way the Internet functions as a fair and efficient marketplace. It is a debate we must win if we want to secure our creative community into the next decade.” Jimbo Barry, producer and songwriter, known for co-writing hits for The Script, said: “I do worry about the sustainability of the professional music industry, as a songwriter. If copyright becomes free for the music that I write, and I don’t get paid in any sense for the music being used either on the radio or the platforms online, then logically, I won’t be able to sustain myself as professional. I hope that the fight for copyright for songwriters improves and that songwriters are just able to sustain the work that they love.

It will be left to MEPs to address the balance that is surely needed: “Creators and news publishers must adapt to the world of the internet as it works today” rapporteur Axel Vossn MEP said in a European Parliament Committee on Legal Affairs news release. “The Committee position aims to ensure that widely recognised and observed copyright principles apply to the online world, too.”

The legislation will now be debated in ‘trilogue negotiations’ where EU legislators and member states debate proposed legislation. The next plenary vote on the copyright review is due to take place on July 5th, and the final vote of the full plenary of the European Parliament is expected to take place in December. However, the decision of the JURI Committee which approved the proposed text, certainly increases the likelihood of Articles 11 and 13 becoming law - but it's going to be a battle!

Disclosure: The author represents a number of rights owners. Any opinions expressed by the author in this article are personal.

No comments: