Copyright Law In Europe Could Be About To Get Ridiculously Stupidly Bad In Ways That Will Undermine The Internet
from the this-is-so-dumb dept
Over the last few years, the EU has been going through a pretty big copyright reform process. And it's been quite the roller coaster with some good ideas and some bad ideas mixed in at times. MEP Julia Reda of the Pirate Party has been the point person in calling out the bad ideas and pushing forward the good ones. She's had a fair bit of success, and recently noted that the EU Parliament seemed to be on the road towards a "reasonable position" on copyright. Except... Hollywood can never accept such a thing. And thus, there's an ongoing attempt to slip in some really, really bad ideas, even worse than some of what we'd seen before:
On June 8, the Internal Market and Consumer Protection (IMCO) Committee will decide its standpoint. This is a crucial step in the copyright reform process, because the IMCO committee is jointly responsible for the Parliament position on one of the most controversial parts of the reform: the introduction of mandatory censorship filters on online services such as social media.
Today it was revealed that MEP Pascal Arimont from the European People’s Party (EPP) is trying to sabotage the Parliamentary process, going behind the negotiators of the political groups and pushing a text that would make the Commission’s original bad proposal look tame in comparison. This is a tactic he recently already successfully applied to prevent the committee from adopting a progressive position on overcoming geoblocking. If he succeeds again, the result would once more do the opposite of what the Committee is tasked to do: Protecting European consumers.
So what's he pushing? Something that would basically make it very, very risky to run a website that allows any kind of commentary. It would basically make the internet safe for giant media companies... and no one else.
Instead of finding a delicate balance between the interests of rights holders, online services and users as agreed by the other political groups, Mr. Arimont’s “alternative compromise” reads like a wish list of the content industry, with utter disregard for the Charter of Fundamental Rights and long-established principles of EU law.
He wants to double down on the obligation for content filtering, which he doesn’t want to just apply to services hosting “large amounts” of copyrighted content, as proposed by the Commission, but to any service facilitating the availability of such content, even if the service is not actually hosting anything at all. This could require content filters even for services that are linking to content on other websites, because hyperlinks, according to the Court of Justice of the European Union (CJEU), can be considered a copyright infringement under certain circumstances.
The only exception foreseen would be for micro-businesses that are no older than 5 years. So if you’ve been self-employed for more than 5 years, rules the Commission wrote with the likes of YouTube and Facebook in mind would suddenly also apply to your personal website.
At the same time, Mr. Arimont seeks to completely override the court ruling of the CJEU that states that general monitoring of all users’ activities constitutes a violation of fundamental rights – by brazenly stating that monitoring all users’ uploads for specific copyrighted works is not “general” monitoring, as if it were possible to reliably find all needles in a haystack without looking at the entire haystack.
He then goes on to state that any online service that so much as uses an algorithm to improve the presentation of user-uploaded content (like sorting files alphabetically by their name) would be considered directly liable for any copyright infringement. Where the European Commission proposal was trying to gloss over the fact that it was trying to re-write the intermediary liability rules, Mr. Arimont’s text spells it out for us: “The service providers that play such an active role are ineligible for the liability exemption” (active role being defined by him as “optimisation for the purpose of the presentation by the service of the uploaded works or subject-matter or their promotion by the service, irrespective of the nature of the means used therefor“).
And... that's not all. He's also got a link tax he'd like to shove down your throat:
Since all political groups in the committee except for the EPP (and the populist EFDD) had tabled amendments completely deleting the neighbouring right for publishers, the rapporteur’s suggestion to follow this proposal in the compromise amendments is logical. Of course Mr. Arimont was not happy with this outcome, but his “alternative compromise” reads more like a provocation than an attempt to find middle ground. Contrary to some of his EPP colleagues, who proposed the compromise wording developed by the lead committee rapporteur Therese Comodini (EPP), he goes for a drastic extension of the Commission’s proposed extra copyright for news publishers.
Where the Commission proposes a protection of 20 years for the use of news snippets in a digital form, he extends it to 50 years, for both offline and online uses. Reciting a headline from the cold war era would suddenly require permission from the original publisher, who may have long since gone out of business. Where the Commission wants to apply this right to press publishers only, Mr. Arimont explicitly includes academic publishers, a move that would spell disaster for any open access initiatives.
In an attempt to silence the most vocal critics of this copyright extension, Mr. Arimont generously clarifies that single words should not be covered by the new rights, and neither should hyperlinks. That of course means that anything that goes beyond a single word – two words – or the naked URL to a news article would be covered by the neighbouring right. And who’s going to click a link that doesn’t even use the headline of the news article as an indication of what can be found at the other end?
If you don't recall, this is basically a proposal saying that you'd have to pay major media publishers to link to them with a snippet. This is the proposal that shortsighted news media companies have been pushing for under the silly idea that Google News is unfairly "profiting" from their news... while sending them traffic for free. Instead, these companies want Google to keep sending them traffic... but also pay for the privilege. But, now, with this proposal, it appears that this will expand much further and would undermine the basic concept of linking online.
And... that's not all. An EFF blog post which discusses the problems with this proposal also notes that there's another bad proposal coming from elsewhere, such as killing off image search:
Another of the senseless proposals that has been published this week, this time not by the Shadow Rapporteur of IMCO but by the CULT committee again, is a proposed amendment to extend the "value gap" proposal to include a new tax on search engines that index images, as for example Google and Bing do. This proposed amendment [PDF] provides:
Information society services that automatically reproduce or refer to significant amounts of visual works of art for the purpose of indexing and referencing shall conclude licensing agreements with right holders in order to ensure the fair remuneration of visual artists.
It's unclear how much support this particular proposed amendment may have, but should it find its way into the final CULT committee report, we can well imagine that just as Google News shut down in Spain following Spain's implementation of a link tax for news publishers, the closure of image search services won't be far behind. It's hard to see that outcome as being any less detrimental to artists as it would be for users.
The really amazing thing here is just how regressive and backwards looking these proposals are. They are clearly not for the benefit of the public. They are clearly not for the benefit of innovation or of information sharing. Rather, they all appear to be focused on one thing: helping out large legacy companies who have failed to fully adapt to the modern internet era. This is not just bad policy, it's extraordinarily bad for the public and for future innovation.
Filed Under: copyright, eu, europe, filtering, intermediary liability, julia reda, pascal arimont, snippet tax
