Update from May 25th 2018, 13:37: Member State governments have today adopted their position on the copyright reform, with no significant changes to the upload filters and link tax provisions. It is now up to Parliament to stop them.

This week, people across the world are learning what they need to do to comply with the EU General Data Protection Regulation, which will become applicable on Friday – and many are finding themselves wishing they had involved themselves in the debate when the law was decided more than two years ago. A wide public debate about its finer points is happening when it’s too late to make changes or ask for clarifications – a lost opportunity even for a law that I support.

On the topic of copyright, you NOW have the chance to have an influence – a chance that will be long lost in two years, when we’ll all be “suddenly” faced with the challenge of having to implement upload filters and the “link tax” – or running into new limits on what we can do using the web services we rely on.

In stark contrast to the GDPR, experts near-unanimously agree that the copyright reform law, as it stands now, is really bad. Where in the case of the GDPR the EU institutions pushed through many changes against the concerted lobbying efforts of big business interests, in the copyright reform they are about to give them exactly what they want.

Parliament and Council have had over a year and a half to fix the glaring flaws of the Commission proposal – but despite their growing complexity, the latest drafts of both institutions fail to meet basic standards of workability and proportionality. Here’s the state of play in both bodies:

cc-by Oli R

I. Council: The member state governments

This Friday, the Bulgarian EU Council Presidency is (again) seeking to finalise the Council’s position.

Their latest proposal would still force internet platforms to implement censorship machines – and makes a total mess out of the planned extra copyright for news sites by allowing each member state to implement it differently.

28 different link taxes

The German government is standing in the way of an agreement over which kinds of snippets of news content should fall under the “link tax” and thus become subject to a fee when shared: They insist that whether a snippet constitutes an original intellectual creation by its author or not should not be a criteria.

To appease them, the Presidency is proposing that every country should just decide for themselves. Sharing “insubstantial” parts of an article should remain free, but member states get to choose whether that means snippets that lack creativity, or snippets that have “no independent economic significance”, whatever length that may be – or both (Recital 34a).

Of course, this fundamentally contradicts the aim to create a Digital Single Market with common rules, which is right there in the title of the planned law. Instead of one Europe-wide law, we’d have 28, with the most extreme becoming the de-facto standard: To avoid being sued, international internet platforms would be motivated to comply with the strictest version implemented by any member state.

It also remains open whether simple links will be affected, because they almost always contain the title of the linked-to page, and it’s not obvious that an article’s title counts as “insubstantial”. Get ready for drawn-out court cases and years of legal uncertainty around hyperlinks if this version of the text becomes the law.

You don’t need to filter, but we’ll sue you if you don’t

The Bulgarian Presidency agrees with the Commission’s goal to force internet platforms to monitor all user uploads to try and detect copyright infringement, even though that will necessarily lead to takedowns of totally legal acts of expression. But they realise that putting that in plain writing violates existing EU law and the Charter of Fundamental Rights.

Their “solution”: Make platforms directly liable for all copyright infringements by their users, and then offer that they can avoid that unreasonable liability if they can show they’ve done everything in their power to prevent copyrighted content from appearing online – namely, by deploying upload filters (Article 13, paragraph 4). Which remain totally optional, of course! Wink, wink, nudge, nudge.

Tragically, the only remaining point of disagreement in Council is whether this proposal is bad enough, or should be made worse.

Where the member states stand

Here’s what we know about each member state government’s position on the latest proposals:

Country Link tax Censorship machines
Austria make it worse agrees
Belgium make it better make it better
Bulgaria agrees agrees
Croatia make it worse agrees
Cyprus tends to agree make it worse
Czechia make it better agrees
Denmark agrees agrees
Estonia no data agrees
Finland make it better agrees
France make it worse make it worse
Germany make it worse make it better
Greece make it worse agrees
Hungary make it worse agrees
Ireland agrees agrees
Country Link tax Censorship machines
Italy make it worse make it worse
Latvia agrees agrees
Lithuania skeptical agrees
Luxembourg agrees agrees
Malta tends to agree agrees
Netherlands agrees make it better
Poland skeptical agrees
Portugal make it worse make it worse
Romania agrees agrees
Slovakia agrees agrees
Slovenia skeptical agrees
Spain agrees make it worse
Sweden make it better agrees
UK unclear agrees

Some of The worst offenders

  • Germany is standing in the way of an agreement over what the “link tax” should cover (see above).
  • Austria and Italy want to extend the duration of the “link tax”.
  • France, Italy, Spain and Portugal want to force upload filters on not-for-profit platforms (like Wikipedia) and on platforms that host only small amounts of copyrighted content (like startups). Even if platforms filter, they should still be liable for copyright infringements of their users under civil law, just not under criminal law.
  • Hungary used to be against the “link tax”, but is now fully in favour, thereby giving Germany the majority it needs to push this through.

* * *

II. Parliament: Your directly elected representatives

MEP Axel Voss recently released a new version of the text he wants the Legal Affairs Committee to approve in their upcoming vote on June 20/21. He seeks an agreement on these points next week. After that vote, it’ll be near impossible to make meaningful changes.

Wishful lawmaking

Mr Voss’ latest draft expands the scope of the censorship machines proposal to all web platforms (a) whose purpose is to “give access to copyrighted content uploaded by users” and which (b) “optimise” that content. What counts as optimising? Among a long list of actions, we find that “displaying” the uploads already makes platforms legally liable for any copyright infringement they may include (Recital 37a).

And in his version, web services can’t even avoid liability by implementing upload filters. To protect themselves from being sued, they would need to get licenses from all rightsholders that exist on the planet before allowing user uploads to go online, just in case the upload may contain (parts of) any of their works.

He also claims that checking every new user upload for whether it includes one of hundreds or thousands of specific copyrighted works somehow does not constitute “general monitoring” (Recital 39), which would be forbidden – now that’s some wishful lawmaking.

On the “link tax”, Voss is still trying to force the European news media into a cartel no one can break rank with – just in a new way. After his plan to make the neighboring right inalienable was met with much resistance, he now tries to make sure no news source can give search engines free licenses by stating that “listing in a search engine should not be considered as fair and proportionate remuneration [for the use of snippets]” (Recital 32).

Where the parties stand

Party Link tax Censorship machines
EPP pushing for pushing for
S&D resisting resisting
ECR mixed inclined
ALDE inclined pushing for
Party Link tax Censorship machines
Greens/EFA resisting resisting
GUE/NGL resisting resisting
EFDD resisting resisting
ENF pushing for pushing for

* * *

In the next month, Europe will decide:

  • Will dumb robots decide what we can and cannot upload – will we have censorship machines in Europe?
  • Will our ability to share news online be limited by a “link tax”?

If you are opposed to these ideas, please raise your voice now – both with your government and your elected representatives in the European Parliament. You can call the latter for free using Mozilla’s ChangeCopyright tool!

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?

20 comments

  1. 1

    If you are pirate in the EU why you want to unified anything? I am then anarchist and want freedom. From wiki:
    The word anarchy comes from the ancient Greek ἀναρχία (anarchia), which combines ἀ (a), “not, without” and ἀρχή (arkhi), “ruler, leader, authority.” Thus, the term refers to a person or society “without rulers” or “without leaders”.[3]

    • Christopher Clay

      Hello Mac, it just doesn’t make sense to regulate the internet on a national level, in more than 28 different ways on one continent: If we’re going to have regulation, it ought to be at the EU level (if not even more globally). Do we need regulation at all? Rejecting democratic regulation – with all the flaws it may have – not necessarily mean freedom, it means ceding all control to those who develop the technologies and the companies hosting/providing them (ISPs, network backbone providers, hosting providers, service providers…). Is that what we want?

  2. 2
    James Dovan

    The link tax and the upload filters is designed to prevent the building upon prior work method that all of society depends upon to advance, improve and develop. It punishes the majority by charging individuals and unjust cost of money, for the benefit of the rich and wealthy who pushed these types of new laws like this, for their own protection (IPR).

    Can anyone build an Boeing 777-9 for instance without the help of anyone else, given more than 6 million parts are involved? Everything that humanity has today has been a result of SHARED innovation, SHARED work and shared knowledge.

    What the rich are doing is exploiting yet another way to EXTRACT prosperity out of society, just like they buy resources claiming they own nature like oil, air and water, so as to resale them back to society and for a profit. It’s known as capitalism – in the money markets.

    All this does is transfer the work of the majority into the hands of the few, who are the shareholders and owners of patents, copyrights and trademarks. Think of Microsoft, with more than 6000+ patents, and yet the public has never seen the source code of Microsoft’s proprietary code to review and check to confirm they didn’t break the laws, for which Microsoft continues to accuse other of doing – taking them to court – knowing for their deep pockets they will win regardless if they are right or wrong.

    IPR is protection for the rich wealth, never for the poor. As IPR grants a monopoly for the owners, not for the creators. It’s a form of censorship upon the poor, restricting their development in favor of creating an artificial economic market that brings wealth to the rich and repression to the poor. Those artificial economic markets are driven by the protection created by the rich, certainly NOT the poor who are in need of those benefits to build upon and advance.

    i’m sure the RIAA and MPAA are behind these IPR pushing ideas…

  3. 3
    Marie-Paule Dondelinger

    Dear Julia,

    I am an active member of PID (Party for Integral Democracy) in Luxembourg.
    As you might be informed, we concluded, together with the Piratenpartei Lëtzebuerg, a common list under the denommination „PIRATEN“ for the comming national elections in Luxembourg which take place in October.
    I would agree getting your newsletter (if possible in German language, please) and being informed by this way about EU investigatios in order of the next EU electioneering.

    kind regards,
    Marie-Paule Dondelinger

  4. 4

    I understand that there are issues, but if you accept neither upload filter nor making online platforms at least partly responsible for copyright infrigement, what is your solution to keep copyright violations to a minimum, and not only for deep pocketed copyright holders (Disney) but also for small companies and for single individuals?

    • Christopher Clay

      Here’s a proposal: We should harmonize and simplify notice-and-takedown procedures across the EU, while making sure safeguards and penalties are in place against false reports, and while providing an EU-wide remixing/user-generated-content exception to make sure harmless fan content (like recording yourself dancing to a pop song) isn’t harmed.

  5. 5

    Are these countries aware that most websites operate globally? This is absolutely insane, and if the EU persists in regulating the internet, I will join other sites blocking Europe outright.

  6. 6
    Rottweiler

    Hello, MEP Julia Reda, I kindly salute you from México and appreciate what you are doing to protect the free and open internet we know today. Of course this is quite alarming so I was wondering if there was a way for us outside of the EU to make our voice heard by the Parliament, the same way it was done back when ACTA was being pushed, back then Mr. Rick Falkvinge spreaded a petition form addressed to the parliament members that even non EU citizens could fill and send when ACTA was on the table back in 2012. I kindly ask if you could tell us if there is one. Cheers.

  7. 7
    anders erkeus

    Keep it up, Julia!

  8. 8

    Do we have a chance to win this? Does the calling and protesting even work?

    • Christopher Clay

      Yes, we do! The vote in the Parliament committee on June 20 will come down to every single MEP. The majority in favor or against could be 13:12.

      Specifically, here’s what could have the most impact: Call your local ALDE group MEPs (liberals/libertarians) and let them know their party colleagues in the Legal Affairs Committee have committed to vote for upload filters, and that those votes would secure a majority. Tell them why upload filters would be unacceptable and ask them to protest internally.

  9. 9

    So, what will be the stages of voting? Will it only be a matter of the Legal Affairs Committee or there will be a whole voting cycle through different commissions and/or finally the whole EU Parliament?

    • Christopher Clay

      Next is the Legal Affairs Committee vote – that’s the best opportunity to make big changes.
      Afterwards, the plenary of the Parliament (all MEPs) will have to vote whether to approve the Committee result.
      Then negotiations start with the Council to try to find a common position.
      The end result will need to be approved one final time by the plenary.
      So there are several votes coming up – but usually the plenary votes are just formalities. It will get harder and harder to stop these laws at each stage.
      Let’s do it now!

  10. 10

    I believe cartoon illustrations or short videos highlighting the various scenarios could drive the point home much more than simple text (e.g.: a blogger stay-at-home single mother of three would no longer be able to support her children and would be forced to opt for welfare as her blog is restricted, students making dub-step and parody videos being hauled to court for long and painful litigation, destruction of the indie song movie making industry, person tweeting a link to a sudden storm-front alert would be forced to pay link tax for trying to save the lives of their friends)

    My humble opinion: Governments should allow internet to remain a neutral zone and scope of any such wide ranging legislation should be made as narrow as possible and then broadened on a case by case basis only after wide publicity and public consultation, rather than expecting the people to become legal experts and impact-assessment visionaries overnight and somehow understand all the ramifications and future implications it can have.

    While not from the EU, this legislation has global ramifications – if approved and implemented strictly, this could push the world in to a new global recession:
    #Variety in the arts would decrease as artists would be fearful of being prosecuted
    #Unemployment would increase – Self-employment in the creative industries would suffer, small and medium tech entrepreneurship would be hit badly (more than 90% of startups fail, this could push it to a perfect 100%)
    #Increased costs of doing business – companies (even some large ones) are still coming to terms with the increased cost of compliance of GDPR, if expenses would be further arbitrarily increased (link fees, content filter) who is expected to foot the cost of this? Money doesn’t grow on trees, entrepreneurs need to labor for each cent they earn, expecting them to just throw it away for compliance reasons could decrease the numbers ready to embrace the entrepreneurial route
    #Litigation would be a new form of strategic planning – can’t win by quality of the product, win by bankrupting less wealthy rivals, courts would be swamped with litigation which could drag on forever (companies with billions in their pockets would almost always win)
    #Initially assuming the defendant is guilty and then expecting them to prove their innocence (takedown notices) would go against basic premise of, innocent until proven guilty
    #Welfare costs would increase (more unemployment + lack of basic freedom of expression would bring down morale and general well-being would deteriorate)
    #Less income means GDP would be affected not only in EU but also across the world which is now more interconnected than ever before

    On the flip side,
    #Big businesses would grow far richer and more powerful than entire governments and would be able to have their way with ease
    #Large businesses would be able to get the talent they want for peanuts (oversupply due to dwindling opportunities)
    #Governments would be able to raise revenues by imposing stiff fines on the IT monopolies that arise

  11. 11
    Tricolores

    How is it standing at the moment, when looking on votes? If it goes through and the parliament needs to vote, is a simple majority enough? How is it looking when it comes to this?
    Even if it passes, how will this survive when a judge looks into this? Multiple existing EU-laws are violated by putting censorship machines in place.

    • Christopher Clay

      Hello, currently it’s looking like the decision in the Legal Affairs Committee will come down to every single vote: The majority in favor or opposition will be razor-thin. We’ll have a new blog post on the status on Wednesday.

      Some parts of the law may well end up before the European Court of Justice, but decisions there can take years. To avoid the legal uncertainty and be on the safe side, platforms will implement upload filters anyway in the meantime. We need to stop this politically, not legally.

  12. 12
    These articles are about stopping fake news campaigns

    Do not buy into all these articles denouncing Article 13 and 11. Thse are meant to stop Russia from interfering with elections and stop fake news campaigns.

    Read the articles.
    Check your sources.

    • Christopher Clay

      There’s absolutely no truth to that assertion, not even those politicians who proposed or are in favor of these articles have ever used Russia or election interference in general as arguments.

      “Fake news” has indeed been suggested, after the fact, as one justification for the “link tax” – but independent academics and journalists have clearly stated that in fact, the law would end up BOOSTING fake news.

      Please trust these sources more than the random Tumblr post that this theory originated from.

  13. 13

    A few days before the vote, do we know the positions of those who will vote? The last point to present on the article seems indicated our favors, that this law be rejected.

  14. 14

    Everybody in Europe should be making the biggest fuss about this. Even if we the people loose, we’ll loose fighting!

What do you think?