The Problem with the New EU Copyright Directive

Note

This text was originially written for a public service announcement of the computer science student body at the University of Kaiserslautern.

What is going on?

For about two years now, the European Parliament has been discussing reforming copyright laws. The goal is to adapt the copyright to the digital era. Well intentioned, but sadly lacking in execution: For one the protection of individual artists is insufficient; secondly the propsed measures are way too broad and lead to heavy restrictions on the internet.

Particular focus lies on two articles: Article 11 (Protection of press publications concerning digital uses) and Article 13 (Use of protected content by information society service providers [...]).

We have summarized the major problems of both articles for you. Further down you will also find options to get involved as well as further information about the directive.

What is the problem with Article 11?

In Article 11, sites displaying snippets of news articles are required to have licenses for the content.

Article 11 is unclear

The licensing requirement above states that licenses must be acquired as soon as more than "individual words or very short extracts" of a publication are used (Art. 11 §1, [Art11]). However "very short extracts" is never defined. The leads to large legal uncertainty.

Article 11 in ineffective

Variants of Article 11 have been implemented in Germany and Spain and have been shown to be ineffective. In Spain, it lead to Google News being unavailable for some time [Art11Spain] and press sites effectively making less profit than before. In Germany on the other hand, Google was given licenses for free. Smaller aggregators on the other hand have less leverage to circumvent such link taxes, but only account for a fraction of the traffic.

Article 11 is harmful for small publications

Large publications get a lot of their readers from direct visits to their site while small publications are much more reliant on traffic from aggregators. Therefore a restriction of aggregators hits smaller publications harder than larger publications.

Article 11 is not in the best interest of news sites

Displaying text snippets in search results has become an established practice to allow users to make more informed choices about these results. By now most pages even have explicit markup for search engines for suitable snippets. An example from Spiegel Online, a major german newspaper [SponSnippet]:

<meta name="description" content="Allein dieses Jahr werden in Europa rund 1,4 Millionen Menschen an Krebs sterben - darunter deutlich mehr Männer als Frauen. Trotzdem geht das Risiko für jeden Einzelnen zurück. Fünf Fakten." />
<meta name="news_keywords" content="Gesundheit, Diagnose & Therapie, Krebs, Rauchen, Lungenkrebs, Europäische Union, Darmkrebs, Brustkrebs" />

What is the Problem with Article 13?

Article 13 makes the distribution of content uploaded by users a punishable offense unless a license has been negotiated with the rightholders. For example, a music video uploaded to Youtube should not be displayed while a uploading a remix of the same song should be allowed.

Article 13 is technically infeasible

Copyright is a multi-faceted and nuanced topic and deciding which content falls under copyright and which content is fair use regularly poses a problem to judges and lawyers. Now statistical learning methods -- to avoid the buzzword "artificial intelligence" -- are supposed to decide whether a work is an illegitimate copy, a citation, a parody, or something else. Contrary to the opinion of the GEMA the current generation of algorithms is unable to provide such a classification without major error margins.

Article 13 leads to overblocking

For the reasons stated above, there will always be a large grey area in the decisions of the filters. Since companies are punished for the distribution of protected works they will err on the side of caution and opt to filter legal content. The Special Rapporteur on human rights of the United Nations, David Kaye, sees this as a threat to freedom of expression [Art13UN].

Article 13 leads to further centralization with large tech companies

Small companies are not able to develop their own filters. As such they will have to rely on third party services. This is terrible in particular with regard to data protection, the German Federal Data Protection Officer agrees [Art13GDPR].

Article 13 does not correspond to the realities of the internet

In todays internet everyone is able to upload their own creative works without major barriers to entry, and in particular without registering at a licensing agency. However it is unlikely that individuals will be considered during licensing negotiations. As such independent creatives will be disregard once more.

What can I do?

E-Mails seem to be worthless - most representative ignore them by now. What works is:

  • Calling: Pledge 2019 ([Pledge2019]) covers the costs and takes care that all representatives are called in roughly equal amounts. Important: Remain calm and friendly.
  • Letters: Letters succeed where e-mails fail. You can find the addresses of the representatives at BotBrief ([BotBrief]) along with a preprint. Personalizing the texts is advisable.
  • Protest: Protests in your area are listed at Save The Internet ([SaveTheInternetDemos]). The protest in Kaiserslautern is on March 23rd, 13:00 o'clock at the Stiftskirche.