The fight over EU copyright reform is not over yet. Tomorrow, members of the European Parliament (MEPs) will vote on amendments to the Copyright Directive, a piece of draft legislation that was intended to update copyright for the internet age but has been mired in controversy after the inclusion of two provisions: Articles 11 and 13, also known as the “link tax” and “upload filter.”
Critics of the directive claim that these clauses threaten the internet as we know it. The link tax would require online platforms like Google and Facebook to pay media companies when linking to their articles, and the upload filter could force them to check all content uploaded to their sites to remove copyrighted material. Supporters of these measures, meanwhile, say their dangers are being exaggerated and that the legislation simply gives small players a way to reclaim the value of their work in an ecosystem monopolized by Silicon Valley.
You might have thought these issues were settled already if you remembered that the legislation was rejected by EU politicians in July. However, that vote only sent the directive back to the drawing board, giving MEPs a chance to suggest amendments. (They did so with gusto, sending in hundreds.) Tomorrow, these amendments will be voted on. The result could be that the legislation carries on exactly as before (with Articles 11 and 13 intact); the articles might be removed; or any number of other changes introduced.
EU watchers say it’s impossible to predict the outcome of tomorrow’s votes, and, whatever happens, we’re still a long way from actual legislation. Any amendments approved on Wednesday will be subject to further negotiations between politicians and member states in a closed-door process known as “trilogues.” Whatever emerges from those debates will be subject to a final vote by the EU Parliament in January. After that, it will still be up to individual member states to interpret the directive and turn it into law.
In other words: you haven’t heard the last of the Copyright Directive yet.
This seemingly endless back-and-forth (over legislation that was first introduced in 2016) is confusing even to those directly involved. “The system is so complicated that last Friday the [European Parliament] legal affairs committee tweeted an incorrect assessment of what’s happening,” Joe McNamee, executive director of digital rights association EDRi, told The Verge. “If they don’t understand the rules, what hope the rest of us?”
WHAT ARE WE FIGHTING ABOUT AGAIN?
Leaving aside procedural vagaries, there’s the trickier issue of assessing the actual impact of the Copyright Directive. Much of the discussion online has focused on its destructive potential, with figures like Wikipedia founder Jimmy Wales and World Wide Web inventor Tim Berners-Lee warning that it could lead to the “death of the internet” by impeding the free flow of information.
Article 13 is particularly controversial. Critics compare it to YouTube’s Content ID: the automated system that checks videos for copyright material like songs and blocks anything that hasn’t been licensed. Implementing such a system for the entire web would likely be a recipe for disaster: it would be a boon for copyright trolls, would block legitimate material by accident, and would be so difficult to implement that it would stop smaller platforms (like rivals of Google) from getting their foot in the door.
“The Copyright Directive entrenches the power of dominant internet platforms, which are the only ones that can afford the automatic copyright filter,” Gus Rossi, global policy director of US nonprofit Public Knowledge, tells The Verge.
But supporters of Article 13 (and other controversial parts of the directive) say this is an unfair caricature, pushed in part by the tech giants themselves. The UK’s Society of Authors, one of the many artist organizations that supports the Copyright Directive, notes that US companies have spent “millions of pounds lobbying against the Directive,” and says their campaign has been “characterized by a loop of misinformation and scaremongering.”
The Society of Authors’ own gloss of the directive sounds much more reasonable. Its 12-point breakdown says the legislation is primarily about delivering fair pay to content creators, and it notes that a number of amendments have been added to the legislation (such as the safeguarding of parody content and memes as an exception to copyright claims) that neutralize critics’ most alarmist claims. The society concludes: “Not allowing creators to make a living from their work is the real threat to freedom of expression.”
Speaking to the Financial Times today, the EU’s digital commissioner, Mariya Gabriel, makes a similar case, saying: “None of the positions now on the table will destroy the internet or prevent citizens from sharing hyperlinks, parodic images or their wedding memories. […] Only big platforms will benefit from the absence of a copyright reform: not the creators, not the press, not the citizens.”
It’s impossible not to see sense in both sides, but it’s equally impossible to say which is definitively correct. That’s partly because whatever version of the Copyright Directive passes will still have to be interpreted by individual member states. These deliberations could turn the directive into the threatened “censorship machines” or could return revenue to artists and creators usurped by the internet’s titans. They might even do both.
AFTER THE VOTE, MORE TALK
Whatever happens in tomorrow’s vote, it won’t be the end.
Once each amendment to the directive has been accepted or rejected, the resulting legislation will be subject to further debates. These are the so-called trilogues; behind-doors negotiations that will aim to find a compromise between the version of the Copyright Directive approved by the European Parliament, and the version approved earlier in the year by the European Council.
These negotiations will be very influential, and will be led by the Copyright Directive’s rapporteur: an MEP named Axel Voss who is a strong supporter of Articles 11 and 13. EDRi’s McNamee describes Voss as a “copyright fundamentalist” and says his involvement means that politicians fighting to remove Articles 11 and 13 will have an “uphill battle.”
“Even if we get reasonable amendments adopted tomorrow, unless they’re very, very, very good, Voss will be negotiating behind closed doors for the next two or three months to reach a compromise with the council,” says McNamee.
Following those negotiations, a final version of the Copyright Directive will be subject to approval by the European Parliament, a vote that will likely happen in January. The timing is notable, as it’s just before European parliamentary elections in May, meaning that MEPs seeking reelection will be eager to keep on the good side of any vocal constituents.
What happens next is still anyone’s guess. “It’s hard to know,” says Public Knowledge’s Rossi. “My best guess scenario would be a rejection of Article 11 and Article 13. But the EU Parliament is a body of compromise, and I think everybody feels there has to be an Article 11 and Article 13 in some form.”