Cory Doctorow
Electronic Frontier Foundation
Despite ringing denunciations from small EU tech businesses, giant EU entertainment companies, artists' groups, technical experts, and human rights experts, and the largest body of concerned citizens in EU history, the EU has concluded its "trilogues" on the new Copyright Directive, striking a deal that—amazingly—is worse than any in the Directive's sordid history.
The Copyright Directive was always a grab bag of updates to EU copyright rules—which are long overdue for an overhaul, given that it's been 18 years since the last set of rules were ratified. Some of its clauses gave artists and scientists much-needed protections: artists were to be protected from the worst ripoffs by entertainment companies, and scientists could use copyrighted works as raw material for various kinds of data analysis and scholarship.
Both of these clauses have now been gutted to the point of uselessness, leaving the giant entertainment companies with unchecked power to exploit creators and arbitrarily hold back scientific research.
Having dispensed with some of the most positive versions of the Directive, the trilogues have also managed to make the (unbelievably dreadful) bad components of the Directive even worse.
Under the final text, any online community, platform or service that has existed for three or more years, or is making €10,000,001/year or more, is responsible for ensuring that no user ever posts anything that infringes copyright, even momentarily. This is impossible, and the closest any service can come to it is spending hundreds of millions of euros to develop automated copyright filters. Those filters will subject all communications of every European to interception and arbitrary censorship if a black-box algorithm decides their text, pictures, sounds or videos are a match for a known copyrighted work. They are a gift to fraudsters and criminals, to say nothing of censors, both government and private.
These filters are unaffordable by all but the largest tech companies, all based in the USA, and the only way Europe's homegrown tech sector can avoid the obligation to deploy them is to stay under ten million euros per year in revenue, and also shut down after three years.
America's Big Tech companies would certainly prefer not to have to install these filters, but the possibility of being able to grow unchecked, without having to contend with European competitors, is a pretty good second prize (which is why some of the biggest US tech companies have secretly lobbied for filters).
Amazingly, the tiny, useless exceptions in Article 13 are too generous for the entertainment industry lobby, and so politicians have given them a gift to ease the pain: under the final text, every online community, service or platform is required to make "best efforts" to license anything their users might conceivably upload, meaning that they have to buy virtually anything any copyright holder offers to sell them, at any price, on pain of being liable for infringement if a user later uploads that work.
Article 11, which allows news sites to decide who can link to their stories and charge for permission to do so, has also been worsened. The final text clarifies that any link that contains more than "single words or very short extracts" from a news story must be licensed, with no exceptions for noncommercial users, nonprofit projects, or even personal websites with ads or other income sources, no matter how small.
Now that the Directive has emerged from the Trilogue, it will head to the European Parliament for a vote for the whole body, either during the March 25-28 session or the April 15-18 session—with elections scheduled in May.
These elections are critical: the Members of the European Parliament are going to be fighting an election right after voting on this Directive, which is already the most unpopular legislative effort in European history, and that's before the public gets wind of these latest changes.
Let's get real: no EU political party will be able to campaign for votes on the strength of passing the Copyright Directive—but plenty of parties will be able to drum up support to throw out the parties that defied the will of voters and risked the destruction of the Internet as we know it to pour a few million Euros into the coffers of media companies and newspaper proprietors—after those companies told them not to.
Watch this space. We will be working with allies across the EU to make this upcoming Parliamentary vote into an issue that every Member of the European Parliament is well-informed on, and we're going to make sure that every MEP knows that the voters of Europe are watching them and taking note of how they vote.
All that it takes is for you to speak up. Over four million Internet users have signed the petition against the Directive. If you can do that, you can pick up the phone and call your MEP. Tell them why you’re against the Directive, what it means for you, and what you expect your representatives to do in the forthcoming plenary vote. It really is the last chance to make your voice heard.
Cory Doctorow is a science fiction author, activist, journalist and blogger. He is the co-editor of Boing Boing and the author of young adult novels like HOMELAND, PIRATE CINEMA and LITTLE BROTHER and novels for adults like RAPTURE OF THE NERDS and MAKERS. He is special advisor to the Electronic Frontier Foundation, former European director of the EFF, and co-founded the UK Open Rights Group. Born in Toronto, Canada, he now lives in London. Email Address: This email address is being protected from spambots. You need JavaScript enabled to view it. | Twitter handle: @doctorow
This article was originally published by the Electronic Frontier Foundation and was used with permission.
