Updating copyright law for the 21st century: that was the mission the EU embarked upon four years ago. It was high time. The way copyright-protected works are created and consumed had fundamentally changed since the current rules were written.
Back then, in early 2001, there were no services like YouTube and SoundCloud, allowing anyone to publish their works worldwide for free. People were not yet carrying around recording devices with high-quality cameras and microphones – smartphones – everywhere they went. Apps like Musical.ly, making creation effortless, weren't around. Derivative works like lipsyncs, mashups, and reaction GIFs weren't everyday parts of our culture. Streaming services like Spotify were yet to be invented, as were platforms allowing artists to directly accept support from their fans, like Patreon and Bandcamp.
Tragically, none of these developments are reflected in the planned new Directive, as adopted by the European Parliament last week. It does not recognise and legitimise the new stakeholders, the masses of new creators. It does not nurture and protect our new forms of expression, many of which build on existing works in ways that are only partly covered by today's copyright exceptions. It doesn't unify what's allowed and what isn't in different EU member states, even though we all use the same internet to share and access works.
Instead, lawmakers looked at copyright primarily through one very particular lens: that of big media companies, with their waning control over distribution channels. On the internet, text, music and video content is never scarce – there's no end to the opinions we can read, the selection of records in stock, or our choice of TV stations. As a consequence, some of the power and profit has shifted from record labels and publishing houses to internet platforms – from middlemen who produce and distribute works, charging per copy, to middlemen who make works available and discoverable, indirectly profiting by selling users' attention to advertisers.
It's hard to judge whether this change is overall more of a challenge or an opportunity for artists. There are many examples of creators leveraging the new media landscape for their benefit in ways that had never been possible before. The established industries and traditional gatekeepers, however, are up in arms.
Investing the considerable political capital they still hold, they convinced lawmakers to try to undo that fundamental shift and find ways to redistribute income back to them. The copyright reform project was a convenient vehicle to that end.
That is the real goal behind the most controversial parts of the EU Copyright Directive. Articles 11 and 13 – a so-called “link tax” for news content, and a rule making internet platforms liable for copyright infringements by their users – were never meant to be carefully considered fixes to issues in copyright law. They are meant to be sticks EU-based publishing and music giants can wield to force US-based internet platform giants to the negotiation table on their terms. To achieve that, some kind of license needs to be required, and the media industry needs to get to set the price.
The supporters of these provisions don't particularly care about the specific nature of the sticks they're handing out. Many are out of their depth when it comes to discussing the details. The intended effect of the law is not so much what its paragraphs say, but to placate the media industry – and thereby, taking their word for it, “saving creativity and the independent press in Europe”.
That explains why the Directive's supporters so easily dismiss warnings of censorship infrastructure and restrictions on our freedom to link. Since they don't consciously intend to cause these effects, it must just be hyperbole. And since their politics are driven by supporting one particular oligopoly over another, it's natural for them to assume the “other side” must be similarly motivated. Any opposition is dismissed as a Google-orchestrated campaign – an absurd belief, but like most conspiracy theories, highly effective at shutting down factual debate.
The supporters of Articles 11 and 13 believe they are merely regulating a struggle between powerful industries. But legal and technical experts examining the actual provisions, and forecasting their consequences, are near-unanimously sounding the alarm: by interfering with the basic dynamics of the internet, what they are regulating is our freedom of expression. Those sticks turn out to be swords hanging over all of us.
Posting and sharing is how we participate online. Uploads and links are what makes the internet more meaningful for society than cable TV. The upload filters – that platforms will have no choice but to implement to limit their liability – will likely err on the side of over-blocking, withholding legitimate acts of expression to avoid legal trouble: in the court of the automated filter, we'll be assumed guilty until proven innocent.
The “link tax”, meanwhile, will discourage the spread of information online, since reproducing even snippets of a news article on any online service will require a license. The “safeguards” added by MEPs at the last moment amount to wishful thinking, demanding that magic technology or “stakeholder dialogues” solve these impossible challenges.
The jury's out on whether Articles 11 and 13 have any hope of fulfilling their intended goals – or whether they will end up backfiring on the media industries pushing for them today. One thing is for certain: they'll serve to further entrench the big platforms, who will find it much easier to comply with than any new entrants.
We can't let the free and open internet die as mere collateral damage. The greatest public space we've ever invented mustn't become a casualty of attempts to use copyright law to solve problems not caused by it in the first place. Our freedom of expression online is too precious to be wasted as ammo in a corporate battle.
There are two final hurdles the Copyright Directive has left to clear: a vote among the EU governments, and one among the Members of its Parliament – which will occur early next year, not long before all MEPs are up for re-election. You have until then to demand that your representatives at both levels consider not only what they want this law to do – but also what it actually will.
Julia Reda is an MEP and a member of the Pirate Party Germany
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