Without changes particularly to the draft articles 11 and 13 in the future EU Copyright Directive the new legislation would have a huge impact “on how we use the internet, as well as on how we work as activists,” said Julia Reda, sole member of the Pirate Party in the European Parliament and an expert in the copyright reform. “It would be a step back into the TV age,” she complained.
What has become a no-brainer for internet users, to upload content on the net or to exchange hyperlinks on content of interest would be severely touched, Reda stated. Article 11 includes an obligation to pay for the use of snippets from news pieces. Article 13 obliges platform providers to monitor and filter uploads of user-generated content and takes on liability unfiltered misbehaviour of their users.
While ancillary copyright legislation has already been enacted in Germany and Spain, the EU approach is different, said Till Kreutzer, IP lawyer and expert at iRights.info. The German version “is only addressed to search engines and news aggregator sites, the Spanish to news aggregators only,” he said. The draft EU legislation on the other hand is not limited. “It is not even restricted to commercial use, but everybody of you is in scope.”
Another difference is the 20-year protection period the EU envisaged, compared to one year according to German law. “Policymakers think they can make laws against Google and can funnel money from the big platforms to media organisations,” Kreutzer said, shaking his head.
At the first-ever EU Digital Summit of the 28 heads of state, in Tallin, Estonia this weekend, “it [was] all hand-wringing about Google and Facebook,” said Reda, who recommended to address the very concern over EU companies falling behind and turn it around. So the monitoring and upload filtering foreseen in draft article 13 would result in channelling even more money to Google or other big platforms.
“You need a lot of money to build the filters, you need to know who owns the rights,” she ventured.
Google, according to Hamburg-based Google lawyer Jan Kottmann, spent $50 million dollars on its Content ID system. It worked and has made up 50 percent of the added revenue on YouTube for the music industry, Kottmann said.
“No automatic filtering tools exist for software,” said Polina Malaja from the Free Software Foundation Europe (FSFE). Given that platforms like GitHub, Gitlab or StackOverflow allow their users – the developers of free and open source software – to upload and share code based on the code of others. If the platforms are obliged to monitor and filter the contributions, the impact on collective software development could be devastating, Diana Cocoru from openforum Europe Cocoru underlined.
“Your mobile device, your wifi router, your car, the airplanes in which you came, all contain free and open source software,” she said. Both organisations have joined together to prepare a letter to the EU legislators now open for signatures for software developers and software users.
Beyond the potential negative economic aspects, several speakers at the Copycamp conference rang the alarm bells over the potential fallout of round-the-clock obligatory monitoring and filtering of user content on the net. Diego Naranjo from the European Digital Rights initiative (EDRi) reported: “I heard one of the EU member state representatives say, ‘Why do we use this (filtering system) only for copyright?’” he said. The idea of bringing down the unauthorised publication of copyrighted material by algorithm was “a very powerful tool in the hands of government,” he warned.
There are precedents on how to use these tools. On 1 October, new German legislation on fake news and hate speech took effect obliging Google, Facebook and other large platforms to set up a system to take down “obviously illegal content” within 24 hours or risk fines up to €5 million euros. Even for the algorithm-mighty Google this is a “very ambitious goal,” said Kottmann. “24 hours really, really is a problem.” Machines will be made to take the decisions in the end, and “obviously over-blocking will be inevitable,” Kottmann predicted.
In contrast to the dark picture presented by many activists on copyright, multi-purpose filtering machines and the end of ownership in the time of the internet of things, chances for reform are presented for various areas of rights protection.
EU copyright reform itself is a chance, argued Raegan MacDonalds from the Mozilla Foundation, calling it “the opportunity of a generation to bring copyright in line with the digital age, and we want to do that.” Yet the task, like in earlier copyright legislative processes, is to once more expose what she described as later dismantled myths of big rights holders, that any attempt to harmonise exceptions would kill their industry.