After campaigns from multiple free speech activists, hi-tech innovators and artists ranging from world-wide-web inventor Tim Berners-Lee to Paul McCartney of The Beatles, the Parliament of the European Union has rejected new copyright proposals and has sent the entire issue back to the drawing board will new and revised proposals will be deliberated beginning in the autumn of this year.
While the EU Parliament typically ratifies any recommendations put before it by a lower committee, German Green Member of the European Parliament Julia Reda forced the EU Parliament to vote on the new proposed legislation not by party-political blocs but by a simple majority of parliamentarians. She accomplished this by invoking the obscure 69c procedural rule. After forcing a simple majority vote, the proposals were ultimately rejected by 318 parliamentarians versus 278 who voted in favour with 31 members abstaining.
The move has been widely applauded throughout the global web based community of publishers, social media users and free speech proponents.
The failed proposals
The most novel and therefore controversial aspects of the rejected directive are contained in Articles 11 and 13 of the proposals. According to Article 11, any time a digital publisher links to or otherwise publishes even a small portion of copyrighted material, the owner of the outlet in question would have to pay a statutory rate (aka a tax) for the privilege of so doing.
Article 13 would have forced major online platforms, including and especially social media to implement an automated vetting algorithm that would instantly censor any attempts at posting copyrighted material, without providing for any kind of reasonable appeal.
Arguments for the new proposals
The arguments in favour of the new legislation suggest that such mechanisms are needed to prevent the unauthorised exploitation of copyrighted material without the owner receiving rapid remuneration. The arguments against the new proposals however are far more lengthy and complex which is itself is a cautionary warning sign against legislation that may prima facie be overly broad and consequently do more harm than good.
Arguments against the new proposals
–Stifling effect on the freedom of speech and artistic expression
While no legal system encourages the violation of copyright, most legal systems allow for something that in the United States is known as fair use. According to the fair use doctrine, copyrighted material may be typically used without remuneration or permission from the copyright owner if the copyrighted work is used in the services of journalism, information decimation vital to the public good, critique/review/criticism/journalistic analysis, certain forms of advertising (e.g. a cinema displaying an image of a film that is now playing or coming soon) and last but not least, parody (e.g. memes that show a copyrighted image of Kermit The Frog to illustrate a humorous or satirical message).
According to current EU copyright law, most of the fair use exceptions which have long been established in US law and most other Common Law countries also apply. However, many European judges take a narrower view of the concept of fair use than do most American judges.
Both Article 11 and Article 13 of the recently rejected proposals would have effectively ended anything remotely related to the fair use doctrine. This would not only have a chilling effect on the ability of both small and large publishers who rely on fair use in order to produce the content that all readers, viewers and listeners now expect, but it would also vastly limit the freedom of expression of social media users who do not not even stand a chance of profiting from their creation and/or sharing of memes or short parody videos. This in and of itself would have a chilling effect on some of the main forms of free expression that makes the internet worth while to millions.
—Stifling effect on the freedom of information
Journalists rely on quoting from a variety of sources in order to accurately convey information to their audience. For example, if I were to link someone else’s analysis of the present situation under the proposed laws, just this simple link would cost Eurasia Future money according to the proposed reforms. The result would be that most outlets would simply not bother to link or quote important sources which itself could expose publishers to allegations of spreading “fake news”, even if this was not the case. This could set off a dangerous chain reaction which could see media outlets deprived of the profits they would have otherwise legitimately earned for providing a much valued service in the private sector. It is noteworthy that Article 11 not only would have applied to websites that copy and paste entire stories or articles without remuneration or permission (a practice I personally find troubling), but it would have effectively taxed publishers for even quoting and crediting a small portion of a source that helps to bolster one’s argument. If lawyers for example had to pay other lawyers or judges whose legal precedent they were citing in a court of law – one could imagine how awkward the tasks of the legal profession would become.
In an internet age where both true and false information is ubiquitous, the job of publishers is as important as that of lawyers and to this end, both require similar tools in order to effectively execute their job.
–Major enforcement problems
Because of the overreaching characteristics of the rejected proposals, one must enquire whether under the proposals as originally drafted, the EU would chase down violators of these new laws outside of Europe in order to enforce its laws on publishers whose material on the world wide web can be viewed and in many cases likely will be viewed in the EU. Not only would this be costly but in many cases it would be fruitless as most countries outside of the EU would likely not comply with a foreign organisation effectively harassing their citizens. An example of a related concept was when in 2010 the US President specifically signed a law stating that US courts would not enforce foreign libel judgements on US citizens if the foreign country’s libel standards are more severe towards the defendant than those in the US. Due to the fact that the outcry against the EU’s new legislation has been louder in America than in much of Europe, one might reasonably expect something similar from Washington had the EU pushed ahead with its proposals. This is true especially given the currently poor status of EU-US relations on the all important matter of trade.
Then there are the technical issues of enforcement. How could the proposed algorithm designed to censor the posting of copyrighted content on social media determine whether or not the person posting a copyrighted image is the owner of the copyright? Would one have to post all of his or her original art pieces for example into a mega data-base even if they are only sharing their original drawing with a small number of Facebook friends? Furthermore, who would own such a data-base and could the copyright holder’s right to exploit his material be trusted in the hands which ever private or public entity controls this date-base? This could well have been the road to a repeat of the ongoing Cambridge Analytica scandal in more ways than one.
Furthermore, when it comes to Article 11, it was not clear who would collect the link tax and how? Take for example an 18 year old with no income or savings who runs a small website and posts copyrighted images or links to other websites. How much money was the EU prepared to spend on chasing such an individual down only to find that he is judgement proof? There’s a reason that the existing private sector doesn’t chase down judgement proof individuals and its called logic.
–Outlandish burden shifting
As it stands, copyright is almost always a civil rather than a criminal issue. As such, it is up to the copyright holder to discover that his or her work has been used without permission or remuneration and to then decide whether he or she will reach a settlement over the matter or take the infringing party to court. Realistically, copyright holders will not waste time and money on small matters. If a website nobody reads decides to publish entire copyrighted pieces with no permission, the publisher of the original piece – Eurasia Future for example, would likely ignore the matter. However, if the New York Times copied an entire article from Eurasia Future without permission or remuneration and if furthermore it could not be justified in any way by fair use – the matter would be raised in the appropriate way.
Under the axed proposals, it appeared that the EU would force third parties like Facebook and Twitter to automatically enforce copyright rules, thus shifting the burden of enforcement of copyright from the copyright owner to social media owners and other website owners. This approach was entirely impractical as it invoked the power of law to force third parties to take a greater interest in protecting the use of copyrighted material than many copyright holders them selves have ever taken.
The same is true of the link-tax. Why should a public or private body collect taxation via statute when existing laws, however flawed one might argue they are, are still less burdensome on the entire public and private sector than the new proposals?
Geopolitical policy hypocrisy
The EU itself is a frequent critic of alleged internet censorship in China and Russia, even though the laws in China and Russia cannot be compared to the new EU proposals. In China, the only materials censored online are those which are deemed to be provocative in respect of the civil order, those which threaten the public peace and those which violate the social norms of the People’s Republic of China. In other words, China’s internet regulations are derived from a desire to protect China’s internal peace and cultural characteristics, rather than a cynical ploy to pit those with lots of money against those with little. Even an article critical of China’s internet policy accurately described the nature of internet regulation in the country, in spite of its overly cynical editorial overtones. It should also be noted that while western states criticise China for its policies, many western governments are trying to randomly censor free speech under the guise that it is “hate speech”, even though strongly worded and aggressive speech has traditionally been protected in the US and much of Europe so long as it doesn’t contain a specific criminal threat. This is in fact the very essence of the US First Amendment which has long been admired throughout Europe.
Russia has some laws which also seek to prohibit the posting of anti-social material online. But in reality, unlike China, Russia rarely tries to enforce any internet regulations and when it tries, it usually fails miserably. Thus, the internet in Russia is actually incredibly free in terms of an absolutist view of free speech.
The EU seriously risked becoming a laughing stock in the United States which clearly values fair use, in Russia which realistically doesn’t censor anything on the internet and in China where measures taken to protect people from being needlessly provoked are prioritised over protecting huge corporations from small social media users who aren’t seeking to make a profit from the memes they post online. Of course notably absent from the wider debates about the new EU proposals was any commentary from the governments of China or Russia. If the tables were turned, one could imagine the chorus of excoriation against the eastern superpowers coming from both Brussels and Washington.
Today’s victory is of course a victory for the free speech that is allowed to flourish under doctrines similar to and including fair use. But the EU Parliament’s decision to reject the recommendations of a lower committee was also a victory for logic, financial realism and an adherence to a rational sharing of burdens within the wider cause of enforcing copyright protections.
At this point, it appears that the dreaded proposals in articles 11 and 13 of the failed legislation will now be permanently sent to the scrapheap.