EU Copyright Rules could silence us all

On 25 May 2018 the General Data Protection Regulation (GDPR) came into force in Europe. It introduced a set of online privacy rules that could lead to a drastic change in the European law on copyright.

The Copyright in the Digital Single Market Directive has been debated for some time and is intended to update the copyright directive of 2001. However, in the intervening years, there have been quite a number of changes in the copyright field that the new directive is supposed to fix in one single go. It has never been considered a controversial piece of legislation until May when German politician Axel Voss inserted two new rules into the draft legislation, and they are controversial.

First, there is Article 11: under this rule, “commercial” “links” with “snippets” from “news sites” would only be permitted if the platform hosting the link had a paid licence from the news site. Furthermore, quoting more than a single word constitutes a “snippet”, which has to be paid for. With no real definition given to the terms “commercial” or “link”, there will be arguments.

Second, there is Article 13: this rule says that any public communications platform is required to ensure that nothing copyrighted is ever posted without permission, even for a brief moment.

Germany tried applying Article 11 before, but Google found ways to circumvent the ‘Link Tax’ idea — it boycotted any sites demanding payment. So newspapers ended up giving Google free licences.

Article 13 is equally, or even more difficult to apply. There is a ContentID tool available on YouTube, but the people who own copyright say it doesn’t catch enough of those infringing copyright. Plus, the system tends to capture videos that aren’t guilty of any copyright infringements. Users don’t like it either, because their favourite videos get blocked.

There is concern that Article 13 will make this situation worse, not better for content creators and users. As Cory Doctorow writes: “Article 13 would expand the filter to consider text, music, video, still photos, software code, game mods, 3D printing files, and anything else that might be copyrighted.”

Unfortunately, both these Articles got passed in the draft regulations, but the debate is not over, as the EU talks to each Member State. These talks are usually secret, but such is the strong feeling about this Directive that the European Court of Justice has ruled that all Europeans should know what happens in these negotiations.

The aim may have been to exert more control over Facebook, Twitter, Google and the other big tech companies but they have the financial resources to follow the rules; it is the smaller companies that don’t. And that means the giants won’t have any competition.

And, although it is an EU regulation it could affect the rest of the world, with platforms having to block EU users, or censor the Internet globally. This regulation will affect many areas, not just online entertainment: it will affect education, social and political communications and more. If the Directive is passed it will be an abuse of regulatory practice — we need to hear and know more about it, as the ECJ has decreed.