The EU’s “Copyright in the Digital Single Market Directive” is closer than ever to becoming law in 28 European countries, and the deep structural flaws in its most controversial clauses have never been more evident.
Some background: the European Union had long planned on introducing a new copyright directive in 2018, updating the previous directive from 2001. The EU’s experts weighed a number of proposals, producing official recommendations on what should (and shouldn’t) be included in the new directive, and meeting with stakeholders to draft language suitable for adoption into the EU member states’ national laws.
Two proposals were firmly rejected by the EU’s experts: Article 11, which would limit who could link to news articles and under which circumstances; and Article 13, which would force online platforms to censor their users’ text, video, audio, code, still images, etc., based on a crowdsourced database of allegedly copyrighted works.
But despite the EU’s expert advice, these clauses were re-introduced at the last minute, at a stage in the directive’s progress where they would be unlikely to receive scrutiny or debate. Thankfully, after news of the articles spread across the Internet, Europe’s own voters took action and one million Europeans wrote to their MEPs to demand additional debate. When that debate took place in September, a divided opposition to the proposals allowed them to continue on to the next phase.
Now, the directive is in the final leg of its journey into law: the “trilogues,” where the national governments of Europe negotiate with the EU’s officials to produce a final draft that will be presented to the Parliament for a vote.
The trilogues over the new directive are the first in EU history where the public are allowed some insight into the process, thanks to a European Court of Justice ruling that allows members of the European Parliament to publicly disclose the details of the trilogues. German Pirate Party MEP Julia Reda has been publishing regular updates from behind the trilogues’ closed doors.
It’s anything but an orderly process. A change in the Italian government prompted the country to withdraw its support for the directive. Together with those nations that were already unsure of the articles, this means that there are enough opposing countries to kill the directive. However, the opposition remains divided over tactics and that means that the directive is still proceeding through the trilogues.
The latest news is a leaked set of proposed revisions to the directive, aimed at correcting the extraordinarily sloppy drafting of Articles 11 and 13.
These revisions are a mixed bag. In a few cases, they bring much-needed clarity to the proposals, but in other cases, they actually worsen the proposals—for example, the existing language holds out the possibility that platforms could avoid using automated copyright filters (which are viewed as a recipe for disaster by the world’s leading computer scientists, including the inventors of the web and the Internet’s core technologies). The proposed clarification eliminates that possibility.
To get a sense of how not-ready-for-action Articles 11 and 13 are in their current form, or with the proposed revisions from the trilogues, have a look at the proposals from the Don’t Wreck the Net coalition, which combines civil society groups and a variety of small and large platforms from the US and the EU, who have produced their own list of the defects in the directive that have to be corrected before anyone can figure out what they mean and even try to obey them. Here are a few:
- Make it explicit that existing liability protections, such as those in the E-Commerce Directive, remain in place even under Article 13.
- Clearly define what is meant by “appropriate and proportionate,” as it provides absolutely no guidance to service providers and is left wide open for litigation and abuse.
- Clarify which “service providers” Article 13 applies to in much more detail. This includes a clear definition of “public access to large amounts of works.” What is “large”?
- There should be clear and significant penalties for providing false reports of infringement.
- Copyright holders should be required to help platforms identify specific cases of infringement to be addressed, rather than requiring service providers to police every corner of their services.
- There need to be clear exceptions for sites that make a good faith effort to comply, but that inadvertently allow some infringement to slip through on their platforms.
- There should be required transparency reports on how Article 13 is being used, including reports on abusive claims of infringement.
We’re disappointed to see how little progress the trilogues have made in the months since they disappeared behind their closed doors. The proponents of Articles 11 and 13 have had years to do their homework and draft fit-for-purpose rules that can be parsed by governments, companies, and users, but instead they’ve smuggled a hastily drafted, nebulous pair of dangerous proposals into a law that will profoundly affect the digital lives of more than 500 million Europeans. The lack of progress since suggests that the forces pushing for Articles 11 and 13 have no idea how to fix the unfixable, and are prepared to simply foist them on the EU, warts and all.
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Author: Cory Doctorow