On Tuesday, after years of negotiation and lobbying, and outcry and protests by activists online, members of the EU parliament voted to adopt the Directive on copyright in the Digital Single Market, [PDF] – a collection of rules that ostensibly aim “to ensure that the longstanding rights and obligations of copyright law also apply to the internet,” as the European Parliament puts it.
By “internet,” EU officials are talking mainly about Facebook and Google, though not exclusively. Everyone using the internet in Europe and every company doing business there will be affected in some way, though no one is quite sure how. And therein lies the problem.
“When this first came up, even the original language was so difficult to imagine being successfully implemented, that it was hard to believe anyone would even try to pass it into law,” said Danny O’Brien, international director of the Electronic Frontier Foundation (EFF) in a phone interview with The Register. “Now after it has gone through the mincing machine of the negotiation, it’s even more incoherent.”
What’s in a name?
Among the rules adopted, two have received the lion’s share of attention: Article 15 and Article 17, which used to be called Article 13 and Article 15 until someone had the clever idea to renumber them.
Article 15 (née 13) will require news aggregators like Google News that want to display content from news providers to obtain a license for anything more than “very short extracts.” Google, predictably, has opposed the plan.
Article 15 has been derided as a “link tax” that will damage small publishers and news-related startups.
That’s not true, the European Parliament insists, noting that hyperlinking has explicitly been exempted in the directive.
As for paying up, Google and other content aggregators may choose to shun publishers that demand payment or bestow a competitive advantage (e.g. ranking) to publishers offering favorable licensing terms. Given how publishers in Europe have regretted the loss of visitor traffic that follows from Google excommunication, they may prefer low- or no-cost licensing to obscurity.
Article 17 (née 15) allows websites to be sued for copyright violations by their users, which websites in the US can avoid thanks to Section 230 of the Communications Decency Act.
Article 17, it’s been said, will require internet companies to adopt upload filters to prevent copyright liability arising from users. Essentially, filters may be needed to stop folks submitted copyrighted work to social networks, forums, online platforms, and other sites. That’s a possibility, but not a certainty.
“The draft directive however does not specify or list what tools, human resources or infrastructure may be needed to prevent unremunerated material appearing on the site,” the European Commission explains.
“There is therefore no requirement for upload filters. However, if large platforms do not come up with any innovative solutions, they may end up opting for filters.”