Günther is outta here, but the damage is done

In a few days, scandal-prone Günther Oettinger will stop being Europe’s top internet policy maker – he’s being promoted to oversee the EU budget.

But before leaving, the outgoing Digital Commissioner submitted dangerous plans that undermine two core foundations of the internet: Links and file uploads. While Oettinger is going away, his lobby-dictated proposals are here to stay.

These proposals are pandering to the demands of some news publishers to charge search engines and social networks for sending traffic their way (yes, you read that right), as well as the music industry’s wish to be propped up in its negotiations with YouTube.

These proposals will cause major collateral damage – making many everyday habits on the web and many services you regularly use downright illegal, subject to fees or, at the very least, mired in legal uncertainty.

We can still stop these outrageous plans – but only if you demand from your representatives in the European Parliament that they join me in rejecting the proposals.

Here’s what may otherwise become illegal:

01 Sharing what happened 20 years ago


Sharing snippets of news articles e.g. on a blog or a personal website without a license from the publisher will be an infringement – even 20 years after the article was published.

The EU Commission has not proposed any exceptions for even the shortest of snippets, or for individuals, or for non-commercial purposes. It also doesn’t matter whether a link to the source is provided or not.

Full details
  • Extra copyright for publishers: Article 11 of the proposed copyright reform directive says that copyright protection (specifically the reproduction right and the right of making available to the public) shall be extended to press publishers.
  • 20 year term: The right is granted for 20 years after publication (Article 11/4).
  • Retroactive: It would apply retroactively (Article 18/2) to existing publications.
  • Individuals affected: The law is not limited anywhere to only apply to commercial users or extracts of a certain minimum length.
  • Not covered by an exception: Exceptions to copyright like the one for quotation will still apply – but in many EU countries, sharing an extract without further commenting on its substance is not covered by that exception. For example, in Germany “the work quoted [must be] intended as evidence of own statements and as a basis for discussion. The quotation should be used to justify, intensify and ensure understanding of what has been presented. Utilisation of a quotation is not permitted when it is only given as an example. The quotation must be incorporated into the new work”
  • Bad even if unenforced: Whether they will enforce this new right or not will depend on the individual publisher. While this means that not every use of a snippet will cause legal consequences, to be on the safe side, any website quoting news articles will have to research the publisher and find out or inquire about their policy.

 

02 Tweeting a creative news headline


“Wir sind Papst” (We are Pope) is a famous headline by German tabloid Bild. Unless the person tweeting it pays Bild’s publisher Axel Springer for a license, tweeting this three-word headline would be an infringement of the proposed extra copyright for publishers.

Twitter could also pick up the tab, maybe paying a collecting agency for a blanket license, thereby freeing you from the duty to negotiate one – either way, an arrangement would have to be made.

Full details
  • Extra copyright for publishers: Article 11 of the proposed copyright reform directive says that copyright protection (specifically the reproduction right and the right of making available to the public) shall be extended to press publishers.
  • Creative headlines affected: Golem.de reported [in German] that Oettinger specifically said that this law would also apply to news headlines unless they are purely factual. “We are pope” thus likely counts as a headline specifically targeted by this law.
  • Even generic headlines affected? The protection of headlines may be even more far-reaching in practice, as neighbouring rights such as this one, which protect the producers of content rather than the original authors, generally do not require content to be an intellectual creation worthy of copyright protection. Nothing in the proposal indicates that purely factual headlines would actually be excluded from the new right, though it may be difficult in practice to decide whether somebody had copied such a headline or came up with it independently.
  • Twitter an intended target: German press wire service DPA quoted [in German] Oettinger’s staff as confirming that “services like Twitter, where content is shared, are the intended targets of the law”
  • Individual users affected: The Twitter terms of service state that “by posting content you grant us a license to copy [and] reproduce such content”. When this law passes, you will not have such a right to grant. Thus if you sent that tweet and Twitter didn’t pay – because they chose not to, or could not agree on a fair price – you would be in violation of the terms of service (subject to deletion of your account) and legally liable.

03 Posting a blog post to social media

The preview pic and text snippet that Facebook, Twitter, Reddit and other services automatically generate when you share a link would be subject to licensing if that link goes to a “press publication” – which explicitly includes regularly updated entertainment websites.

If Facebook and Twitter don’t want to start paying for links, they may have to disable this function, making their interfaces less user-friendly.

Full details

 

  • Extra copyright for publishers: Article 11 of the proposed copyright reform directive says that copyright protection (specifically the reproduction right and the right of making available to the public) shall be extended to press publishers.
  • Not just about news: “Press publication” is defined in Article 2/4 as “a collection of literary works of a journalistic nature” “within a periodical or regularly-updated publication under a single title” “published in any media”.
  • Twitter an intended target: German press wire service DPA quoted [in German] Oettinger’s staff as confirming that “services like Twitter, where content is shared, are the intended targets of the law”

04 Pinning a photo to an online shopping list

Visual bookmarking services like Pinterest allow you to grab images off web pages and save them in an organized way, for example to make a shopping list or just to gather inspiration.

In doing so, they copy and republish the title, image and a snippet of text from the page you found the image on – which will be an infringement of the extra copyright for publishers, if the EU Commission has its way.

Full details

This would be troublesome under two separate provisions of the copyright reform, one targeting you and one targeting the bookmarking service:

1. Extra copyright for publishers:

  • Extra copyright for publishers: Article 11 of the proposed copyright reform directive says that copyright protection (specifically the reproduction right and the right of making available to the public) shall be extended to press publishers.
  • Not just about news: The site of a magazine like Wallpaper* falls under the definition of a press publication – a “journalistic publication, regularly updated, for the purpose of informing or entertaining … for instance monthly magazines of general or special interest” (Article 2/4).
  • Not just about text: “‘press publication” is defined in Article 2/4 as “a fixation of a collection of literary works of a journalistic nature, which may also comprise other works or subject-matter” – so photos are included.

2. Upload monitoring obligation

  • New obligation on web services: Article 13 of the proposed copyright reform directive introduces new obligations for “information society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users” – contradicting Article 14 of the E-Commerce Directive, under which services hosting content are not liable for content uploaded by their users. Recital 38 tries to remove this liability exemption from any host provider which “plays an active role, including by optimising the presentation of the uploaded works or promoting them”.
  • Upload monitoring: The obligation is to either “ensure the functioning of agreements concluded with rightholders for the use of their works” or, supposedly if such agreements are not reached, “prevent the availability on their services of works identified by rightholders” through measures “such as the use of effective content recognition technologies”. This contradicts Article 15 of the E-Commerce Directive, which explicitly disallows a “general obligation to monitor the information which [providers] transmit or store”.
  • Pinterest affected: In its impact assessment of the proposed law, the EU Commission determines that “services such as Pinterest are also likely to fall into this category” [Pg. 152, footnote 466]

05 A search engine indexing the web for you


To allow users to search the web, a search engine first has to “read” all websites using a robot and create a database of which content is found where. To be useful, such a database needs to include copies of copyrighted material.

The proposed law threatens to outlaw making such copies of press publications without licenses from the publishers. Just storing a copy of the data will be enough to require a license – it doesn’t matter whether anyone can read it, e.g. whether the search engine displays snippets of this stored text to users in their search results or not.

Bing, Google, Seznam.cz and others would have to get licenses from all journalistic sites – or a blanket license through a collecting society that might be set up for that purpose – or they would have to de-list them from their search results.

Since news websites get a lot of traffic from Google, they would probably move quickly to give Google a free licence to continue listing them, but smaller search engines may not be so lucky.

Full details
  • Extra copyright for publishers: Article 11 of the proposed copyright reform directive says that copyright protection (specifically the reproduction right and the right of making available to the public) shall be extended to press publishers.
  • Not just about news: “Press publication” is defined in Article 2/4 as “a collection of literary works of a journalistic nature” “within a periodical or regularly-updated publication under a single title” “published in any media”.
  • Copies only for lawful use: Crawling the web is currently made possible by an exception to copyright that is essential for the functioning of the web. On the one hand, any reproduction of a protected work requires a licence, on the other hand, the exception explicitly allows copies that are “transient or incidental [and] an integral and essential part of a technological process and whose sole purpose is to enable a transmission in a network between third parties by an intermediary, or a lawful use”. Up to now, it was clear that the display of search results, which by themselves are too short to come into conflict with copyright protection, is a lawful use. Therefore, making copies that are incidental to providing search functionality is also lawful. If this is changed through the introduction of the new extra copyright for publishers, which would apply even to smallest snippets, then displaying search results leading to news websites would no longer be lawful, and by extension, also the making of index copies by search engines would no longer be legal under the exception.

06 A portfolio hosting site not monitoring your uploads

FotoCommunity is a Germany-based social network for photographers, hosting millions of images uploaded by their rightholders.

Today, when someone reports that an image uploaded by one of FotoCommunity’s users infringes their copyright, FotoCommunity is obligated to take it down. In return, they are not liable for the infringement themselves.

The proposed reform would turn this on its head: FotoCommunity would now be obligated to actively prevent users from uploading anything rightholders had identified to FotoCommunity.

This is a huge engineering challenge: The site would need to develop a filter that checks each uploaded picture against a database of copyrighted pictures. YouTube, which runs a similar filter on uploaded videos to identify copyrighted music or clips, says it has spent more than 60 million dollars building this technology.

Even worse, FotoCommunity would be required to detect any kind of copyright infringement in the uploaded pictures. The simplest case would be that an identical copy of a protected picture were uploaded. But a picture can also infringe copyright of a sculptor or architect, if it’s a photograph of their work. Detecting a picture of a 3D artwork from any angle is much more difficult than matching uploads against a database of protected pictures — if not impossible.

Full details
  • New obligation on web services: Article 13 of the proposed copyright reform directive introduces new obligations for “information society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users” – contradicting Article 14 of the E-Commerce Directive, under which services hosting content are not liable for content uploaded by their users. Recital 38 tries to remove this liability exemption from any host provider which “plays an active role, including by optimising the presentation of the uploaded works or promoting them”.
  • Upload monitoring: The obligation is to either “ensure the functioning of agreements concluded with rightholders for the use of their works” or, supposedly if such agreements are not reached, “prevent the availability on their services of works identified by rightholders” through measures “such as the use of effective content recognition technologies”. This contradicts Article 15 of the E-Commerce Directive, which explicitly disallows a “general obligation to monitor the information which [providers] transmit or store”.
  • Unclear target: What exactly constitutes “large amounts of works” remains undefined.

07 Github allowing unmonitored commits

The obligation to scan all uploads for copyright infringement would apply to any kind of service that hosts “large amounts of works”, not just photos.

Since the EU Commission has not foreseen any exceptions, popular services that are not at all associated with widespread copyright infringement, such as software repository hosting service GitHub would nevertheless have to put in place the filtering technology to address a non-existent problem – at the latest, as soon as the first rightholder of source code identifies some code to them that they want to keep off the site.

European startups like MuseScore, which allows users to upload sheet music, might also need to develop technologies for detecting copyrighted instances of, in this case, sheet music or protected melodies. Such an obligation is likely to endanger their existence.

Full details
  • New obligation on web services: Article 13 of the proposed copyright reform directive introduces new obligations for “information society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users” – contradicting Article 14 of the E-Commerce Directive, under which services hosting content are not liable for content uploaded by their users. Recital 38 tries to remove this liability exemption from any host provider which “plays an active role, including by optimising the presentation of the uploaded works or promoting them”.
  • Upload monitoring: The obligation is to either “ensure the functioning of agreements concluded with rightholders for the use of their works” or, supposedly if such agreements are not reached, “prevent the availability on their services of works identified by rightholders” through measures “such as the use of effective content recognition technologies”. This contradicts Article 15 of the E-Commerce Directive, which explicitly disallows a “general obligation to monitor the information which [providers] transmit or store”.
  • Unclear target: What exactly constitutes “large amounts of works” remains undefined.
  • All media types: Nowhere is this obligation limited to certain kinds of works – so it would apply to all kinds of copyrighted media, such as code.

08 Wikipedia ACCEPTING unmonitored uploads

The obligation to scan all uploads would not just apply to commercial sites, but also to projects like Wikipedia that aren’t run for profit, and which expressly only allow uploads of photos licensed for public re-use. If found to be “providing access to large amounts of works uploaded by their users” they would still need to “prevent the availability of works identified by rightholders”.

On Wikipedia, volunteers may review newly uploaded images – but it’s doubtful whether this loose process would satisfy the new law. More likely, they would need to implement “effective content recognition technologies”.

Full details
  • New obligation with overly broad concept of commercial services: Article 13 of the proposed copyright reform directive introduces new obligations for “information society service providers”, without limiting these obligations to for-profit services. According to European legislation, “Information society service providers” are services “normally provided for remuneration”, however case law has established that this definition also applies to services that regularly ask for donations or that are provided for remuneration by its competitors, even if the particular service in question is provided for free.
  • Upload monitoring not limited to copyright infringements: Article 13 goes on to specify that the obligation to install upload monitoring technology applies to platforms hosting “large amounts of works or other subject-matter uploaded by their users”, without requiring that any of these uploads actually constitute copyright infringements. Even though all works uploaded to Wikipedia are either in the public domain or released under a free licence, CC-licenced works are still copyright-protected works. The assumption underlying this obligation is that whenever a user uploads a work without the involvement of a rightholder, there must be a copyright infringement going on, completely ignoring the existence of Creative Commons licences or copyright exceptions. So the large amounts of CC-licenced works uploaded to Wikipedia would require it to put in place upload monitoring technology.

09 Training your own artificial intelligence


Okay, you might not be doing this today yet… but someday soon you might want to.

As artificial intelligence becomes more pervasive, the way in which users make their computers fulfil useful tasks is changing: Traditionally, you program the computer to do a task by programming it – writing step-by-step instructions. An AI, however, is not programmed, but trained. You train it by giving it a lot of input representing what you want it to do for you, and letting it work out the required steps itself. Training an AI is likely to involve copying data – much of it under copyright.

The proposed copyright reform for the first time introduces a Europe-wide copyright exception for text and data mining, e.g. analysing a large amount of data – but only for “research institutions” and “for the purposes of scientific research”.

That doesn’t include you – or the countless other hobbyists, hackers, coders and amateur researchers who could be making valuable contributions and discoveries… or just using technology to learn and play.

Full details
  • New exception: Article 3 (1) of the proposed copyright directive establishes a new exception for text and data mining
  • But not for you: However, it is limited specifically to research institutions and “for the purposes of scientific research”.

+ Not affected: MegaUpload


Despite all the new restrictions on hyperlinks and uploads, sites like MegaUpload, which was famously shut down by US authorities for allegedly systematically infringing copyright, would not be affected.

That’s proof: This law is not aimed at sites that actually play fast and loose with copyright – it’s meant to get social networks and search engines to fork over money to struggling European cultural industries.

Full details
  • Active role: Recital 38 of the proposed copyright directive emphasizes that a platform becomes liable for copyright infringement by its users if it “plays an active role, including by optimising the presentation of the uploaded works or promoting them”.
  • File lockers like MegaUpload are designed to only host, but not promote or make searchable the content uploaded to them. Since users can only find the uploaded works if they have the exact link, these providers may not qualify as “providing access to the public” to users’ uploads and would therefore not be covered by the upload monitoring obligation in Article 13.

What you can do

The European Parliament and the Council (comprised of the EU’s 28 national governments) have just started deliberating on Oettinger’s proposal.

Ask them to reject the extra copyright for publishers (Article 11) and the mandatory upload monitoring (Article 13):

Contact your MEPs directly Join the #SaveTheLink campaign

Library associations like EBLIDA and LIBER are fighting for an extension of the new exception for text & data mining to allow anyone to benefit from it. They can use your support!

Are you running an online service, such as a web forum or a file hoster, that could be affected by this proposal? Tell your story on your blog, approach local media, or leave your story in the comments!

If you want to read more, check out our Medium publication gathering critique of the proposals by many different stakeholders, including Mozilla (the makers of Firefox) and digital rights defenders EDRi.

Also, spread this article!

To the extent possible under law, the creator has waived all copyright and related or neighboring rights to this work.

My name is Julia, I'm the Pirate in the European Parliament.

I'm fighting to make copyright in the EU unified, progressive and fit for the future. Will you join me?

6 comments

  1. 1

    We need some form of copyright. However, this does not justify paying too much money for a work or paying for that work for too long. It is not an easy balance, but this is why we need to talk about this, and make it better.
    On the EU CO proposals, we need to zoom out and see where are the problems. If google has too much money, and the publishers have too little, we need to investigate both cases without jumping into conclusions. Create a tax targeting google’s AdWords and use it to promote creative industries that give value to the Europeans (i.e. media like the german Bild would not receive money).
    We need to be bold and fair. Otherwise, people will not accept any change. And that is good.

  2. 2
    P.E. Reeser

    Dear Julia Reda, M E P

    Please, let us all defend Freedom of Speech, in every way and at all times.

    Best whishes for 2017.

  3. 3
    Juha-Matti Myllylä

    Most politicians are utterly out of understanding when it comes to technical issues. To put the words otherwise, they are in high risk of direct brainwash by copyright lobbyists. There are countless examples. For instance in here in Finland a “internet VCR” service provider was banned since he recorded TV shows shown on public channels and allowed people to watch them as they’ve recorded themselves (which is legal) for a fee. If he had devoted a single device per user the service would’ve been fine, but since users had “shared recording” it was illegal. So for some odd freak law an inferior and more expensive solution providing the same user experience is legal while technologically better solution is illegal. Who does this benefit?

    Even been a software developer myself and supporting some fair copyright laws, I fail to see the rationale in most of the examples of planned bills you’ve given. Also as seen in US, excessive patent trolling and lawsuits don’t benefit manufacturers or consumers, the most beneficiary groups are surprisingly lawyers and patent trolls. Keep up the good work and try to maintain some sanity in legislation.

    Best Regards, JM

  4. 4
    Michael Taylor

    It really does seem that the European Union’s functionaries cannot help themselves as they go about destroying economic and cultural vitality in the hope of quarantining the EU from the modern world.

    Thank God the British people no longer consent to be involved in this nonsense.

    • Christopher Clay

      While I obviously agree that the proposals are misguided: We cannot regulate the internet on a national level. Even more borders online caused by different local laws are not the solution. We need to get this right together.

    • Dennis NiIlsson

      U.K is going to be worse than the rest of the Europe. What do you think of the new excessive unprecedented surveillance powers taken by the U.K government?

What do you think?