The European Copyright Directive vote is in three days and it will be a doozy: what was once a largely uncontroversial grab bag of fixes to copyright is now a political firestorm, thanks to the actions of Axel Voss, the German MEP who changed the Directive at the last minute, sneaking in two widely rejected proposals on the same day the GDPR came into effect, forming a perfect distraction (you can contact your MEP about these at Save Your Internet).
These two proposals are:
1. “Censorship Machines”: Article 13, which forces online providers to create databases of text, images, videos, code, games, mods, etc that anyone can add anything to — if a user tries to post something that may match a “copyrighted work,” in the database, the system has to censor them.
2. “Link Tax”: Article 11, which will only allow internet users to post links to news sites if the service they’re using has bought a “linking license” from the news-source they’re linking to; under a current proposal, links that repeat more than two consecutive words from an article’s headline could be made illegal without a license.
We’re all busy and we all rely on trusted experts to give us guidance on what side of an issue to take, and creators often take their cues from professional societies and from the entertainment industry, but in this case, both have proven to be unreliable.
In a recent tweetstorm, Niall from the UK’s Society of Authors sets out his group’s case for backing these proposals. As a UK author, I was alarmed to see an organisation that nominally represents me taking such misguided positions and I tried to rebut them, albeit within Twitter’s limitations.
Here’s a less fragmented version.
Niall writes that Article 11 (“link taxes”) will not stop you from linking to the news. That’s just wrong. The Article calls for new rights for publishers to block even very short quotations of articles and headlines. Those pushing the Article have suggested that quoting a “single word” might be acceptable to them, but not more.
Article 11 doesn’t actually define what level of quotation is permitted (this is a pretty serious oversight). But Article 11 is an EU-wide version of local laws that were already attempted in Spain and Germany, and under those laws, links that included the headline in “anchor text” (that’s the underlined, blue text that goes with a hyperlink) were banned. In the current amendments, Axel Voss has proposed that using more than two consecutive words from a headline would not be allowed without a license.
Niall says that memes and other forms of parody will not be blocked by Article 13’s filters, because they are exempted from European copyright. That’s doubly wrong.
First, there’s no EU-wide exemption for parody. Under the 2001 Copyright Directive, European countries get to choose zero or more exemptions from a list of twenty permissible ones. And as you can see from this patchwork map of those exceptions, there are plenty of countries where you can still be sued for infringement for a parody. Which means that a site operating in that country will be liable.
Second, even in countries where parody is legal, Article 13’s copyright filters won’t be able to detect it. No one has ever written a software tool that can tell parody from mere reproduction, and such a thing is so far away from our current AI tools as to be science fiction (as both a science fiction writer and a Visiting Professor of Computer Science at the UK’s Open University, I feel confident in saying this).
Niall says that Wikipedia won’t be affected by Article 13 and Article 11. This is so wrong, I published a long article about it. tl;dr: Wikipedia’s articles rely on being able to link to analyses of the news, which Article 11 will limit; Wikipedia’s projects like Wikimedia Commons are not exempted from Article 13; and commercial Wikipedia offshoots lose what little carveouts are present in Article 13.
Niall says Article 13 will not hurt small businesses, only make them pay their share. This is wrong. Article 13’s copyright filters will cost hundreds of millions to build (existing versions of these filters, like Youtube’s Content ID, cost $60,000,000 and only filter a tiny slice of the media Article 13 requires), which will simply destroy small competitors to the US-based multinationals.
What’s more, these filters are notorious for blocking lawful uses, blocking copyrighted works that have been uploaded by their own creators (because they are similar to something claimed by a giant corporation), and even missing copyrighted works.
Niall says Article 13 is good for creators’ rights. This is wrong. Creators benefit when there is a competitive market for our works. When a few companies monopolise the channels of publication, payment, distribution, and promotion, creators can’t shop around for better deals, because those few companies will all converge on the same rotten policies that benefit them at our expense.
We’ve seen this already: once Youtube became the dominant force in online video, they launched a streaming music service and negotiated licenses from all the major labels. Then Youtube told the independent labels and indie musicians that they would have to agree to the terms set by the majors — or be shut out of Youtube forever. In a market dominated by Youtube, they were forced to take the terms. Without competition, Youtube became just another kind of major label, with the same rotten deals for creators.
Niall says that Article 13 will stop abuses of copyright like when the fast-fashion brand Zara ripped off designers for its clothing. This is wrong (and a bit silly, really). Zara’s clothes are physical objects in shops (and not files that Zara posts to user-generated content sites), so web filters do not address any infringement of this type.
Niall says that Article 13 isn’t censorship. This is wrong. Copyright filters always overblock, catching dolphins in their tuna-nets. It’s easy to demonstrate that these filters are grossly overblocking. When the government orders private actors to take measures that stop you from posting lawful communications, that’s censorship.
Niall says that multinational companies will get a “huge victory” if Article 13 is stopped. That’s wrong. While it’s true that the Big Tech companies would prefer not to have any rules, they could very happily live with these rules, because they would effectively end any competition from new entrants into the field. Spending a few hundred million to comply with the Copyright Directive is a cheap alternative to having to buy out or crush any new companies that pose a threat.
I sympathise with Niall. As someone’s who’s volunteered as a regional director for other creators’ rights groups, I understand that they’re well-intentioned and trying to stand up for their members’ interests.
But the Society of Authors and its allies have it wrong here. Articles 11 and 13 are catastrophes for both free expression and artists’ livelihoods. They’re a bargain in which Europe’s big entertainment companies propose to sell Big Tech an Eternal Internet Domination license for a few hundred mil, cementing both Big Content and Big Tech’s strangleholds on our ability to earn a living and reach an audience.
Don’t take my word for it. David Kaye, the UN’s Special Rapporteur on Human Rights, has condemned the proposals in the strongest possible terms.
And Wyclef Jean from the Fugees agrees, seeing Article 13 as a measure that will get between him and his audience by limiting his fans’ ability to promote his work and pay his bills.
Meanwhile, Pascal Nègre (who recently stepped down after 20 years as President of Universal Music France) agrees, saying that the deal was “a net negative for artists, for the industry and, ultimately, for the public good.”
Link taxes are a bad idea. In an era of fake news, anything that limits the ability of internet users to link to reliable news sources deals a terrible blow to our already weakened public discourse.
Copyright filters are an even worse idea. Not only will these both overblock and underblock, they’ll also be ripe for abuse. Because the filters’ proponents have rejected any penalties for fraudulently claiming copyright in works in order to censor them, anyone will be able to censor anything. You could claim all of Shakespeare’s works on WordPress’s filters, and no one would be able to quote Shakespeare until the human staff at the company have hand-deleted those entries.
More seriously, corrupt politicians and other public figures have already made a practice of using spurious copyright claims in order to censor unflattering news. Automating the process is a gift to any politician who wants to suppress video of an embarrassing campaign-event remark and any corrupt employer who wants to suppress video of an unsafe and abusive workplace incident.
Creators in the 21st Century struggle to earn a living — just as we have in all the centuries since the invention of the printing press — and we will forever be busy making things, and reliant on our professional organisations for guidance on which political currents run in our favour.
But there is a simple rule of thumb we can always follow that will keep us from being led astray: creators should always, always be on the side of free expression and always, always be opposed to censorship. We should always oppose anything that makes it easier to silence legitimate speech, anything that narrows who can control our public discourse by concentrating power into a few hands.
Creators, you have three days to talk to your lawmakers. Save Your Internet is the place to go to call, write and tweet them. This travesty is being undertaken in our name and we have a duty to stop it.