Will EU copyright law herald the end of internet freedom?

With Maltese YouTubers having just last week been granted the possibility to monetise traffic on their channels, many of them are now joining the fight against the European Union’s Copyright Directive, which passed its initial stage yesterday and which many critics believe will tear the internet apart.

The European Parliament’s legal affairs committee (JURI) on Thursday voted in favour of the legislation, which – for the most part – simply updates technical language for copyright law in the age of the internet, but also includes two highly controversial provisions. Maltese Nationalist MEP Francis Zammit Dimench, who sits on the committee, voted in favour of the directive.

Article 11 is being described as a “link tax” which would force online platforms like Facebook and Google to buy licences from media companies before linking to their stories. Article 13 is referred to as the “upload filter” which would require that everything uploaded online in the EU is checked for copyright infringement. This would work like YouTube’s Content ID system but cover the whole internet.

Grandayy, Malta’s most successful YouTuber – a medical graduate who has become one of YouTube’s most prolific creator of memes – said that the legislation will restrict the open internet, and might bring about censorship of memes, parodies and other cases of transformative content that falls under fair use.

The Maltese vlogger has 880,000 subscribers on his YouTube channel and also has the most followed local twitter account, with 140,000 followers. His Instagram account is the second most followed locally, with yet another 140,000 followers on that platform.

“The new law will basically encourage or even force all websites that allow users to upload content on them – pretty much all social media websites – to install automated filters that scan all uploaded content, and block or censor any detected copyrighted content,” Grandayy said.

“Since bots cannot distinguish fair use and parody from actual copyright infringement, this can mean that memes and other transformative content will be blocked from the internet, restricting everyone’s freedom of expression.”

But Zammit Dimech disagreed.

“I voted in favour of the directive to protect the interests of artists and creators because, contrary to what many are claiming, this legislation does exactly that,” he told MaltaToday.

Francis Zammit Dimech faced criticsm by Grandayy over his vote in favour of the Directive

He said that the main focus of Article 11 and 13 was to enforce a value cap on all creative content, be it writing, photos, videos or any other format and medium.

“This law will now make sure that content creators get the recognition – and possibly, the financial remuneration – for their work,” he said. “What stifling of creativity? This legislation does exactly the opposite.”

Dissenters claim that Article 13 will affect each and every single internet user, by enforcing a copyright filter on everything uploaded to the internet. That means that cool meme you made of your favourite actor. That’ll be automatically blocked by a machine, even if the original author is OK with it.

Article 11 is being interpreted as shackling news outlets as well as content creators, since the link tax will make linking or quoting from third party news sources also a form of copyright infringement. It would make all platforms, including newspapers, introduce technology similar to YouTube’s copyright filtering system for all content, not only audio-visual content.

But MEP Axel Voss, rapporteur of the European Parliament for the Copyright Directive and the man leading the charge for the new copyright proposal, insisted that the effects of article 11 have been exaggerated and that it won’t destroy the hyperlink.

He said that one of the reasons why similar legislation failed in Spain and Germany was that news aggregators and big tech companies like Google could just circumvent it by dealing with publishers in other EU countries. The new Copyright Reform, however, would have the intended effect because all EU countries will be part of it.

MEP Axel Voss is the rapporteur of the European Parliament for the Copyright Directive

“Pretty much all internet-focused organisations, like the EFF, have opposed this law and yet the Legal Affairs Committee has voted in favour of it,” Grandayy said. “Sadly, the only Maltese MEP on this committee, Francis Zammit Dimech, also voted in favour, just a day after boasting about helping Maltese Youtubers monetise their videos. Which is hypocritical considering that this law will only hurt all Maltese Youtube creators.”

Zammit Dimech defended himself from the accusations and insisted that the directive was the only sure way to protect creators’ copyright as happened in the music industry.

“The law will introduce filters that will track al use of creative content and ensure that the creators are acknowledged and compensated,” he said. “This is a positive development and even numerous Maltese artists have already contacted me to thank me for my vote.”

Widespread criticism

But criticism has not been limited to local dissenters and the directive is facing some stiff opposition, including from Wikipedia founder Jimmy Wales and the founder of the internet, Sir Tim Berners-Lee.

Julia Reda, an MEP from the Pirate Party and Vice Chair of the Green/EFA group, has vowed to continue to fight the proposal as it goes to a plenary vote in the European Parliament.

The European Broadcasting Union has expressed “deep disappointment” at the vote and said this would place “unprecedented burden on the creative industries, at a time when they are already facing significant market disruption.” The EBU said that Parliament has failed to strike a reasonable balance between providing transparency and information to authors and performers while, at the same time, ensuring the workability and pragmatism to do so.

Sir Tim Berners Lee

Jim Killock, Executive Director of the Open Rights Group said: “Article 13 must go. The EU Parliament will have another chance to remove this dreadful law,” he said. “This law would create a Robo-copyright regime intended to zap any image, text, meme or video that appears to include copyright material, even when it is entirely legal material.”

“I think article 13 is the biggest threat to the internet as we know it right now,” Raegan MacDonald, Senior Policy Manager and EU Principal at Mozilla, said. For her, Article 13 will threaten the continuation of a healthy and open internet, partly because how broad the definition is in the proposal. She said all platforms would be legally liable for the actions of their users and this would force them to create incredibly sophisticated upload filters (or ‘censorship machines’) because it would be the only way to completely prevent possible copyright infringement.

Author and activist Cory Doctorow called it a “foolish, terrible idea,” pointing out that the only filters even remotely able to remove content as required by the law are currently run by American companies, “meaning that US big tech is going to get to spy on everything Europeans post and decide what gets censored and what doesn’t.”

All is not lost yet

Both Article 11 and Article 13 were approved by the JURI committee but will not become official EU legislation until passed by the entire European Parliament in a plenary vote, which is likely to be held sometime between December of this year and the first half of 2019.

Zammit Dimech confirmed to MaltaToday that the legislation will also be debated in closed-door trilogue discussions with the European Commission and Council.

That the Copyright Directive has passed its first legislative hurdle without amendment is obviously disheartening. But there’s every indication that EU lawmakers can be persuaded to vote against the law — especially as they face re-election to the European Parliament in May of next year.

“I think it’s important to spread the word about this, as virtually all internet users are against this and will be negatively affected by it, yet not many know what’s going on,” Grandayy said. “I just would like to see the internet remain open and free like it currently is for the most part.”

Explainer

Article 11 explained

Under Article 11, each member state will get to create a new copyright in news. If it passes, in order to link to a news website, you will either have to do so in a way that satisfies the limitations and exceptions of all 28 laws, or you will have to get a licence. This may not matter to people who only pay attention to news in the moment, but it’s a blow to projects that seek to present and preserve long-term records of noteworthy controversies. And since every member state will get to make its own rules for quotation and linking, posts will have to satisfy a patchwork of contradictory – and severe – rules. The controversial measures in the new directive have been tried before. For example, link taxes were tried in Spain and Germany and they failed, and publishers don’t want them. Indeed, the only country to embrace this idea as workable is China, where mandatory copyright enforcement bots have become part of the national toolkit for controlling public discourse.

Article 13 explained

Under Article 13 of the proposal, sites that allow users to post text, sounds, code, still or moving images, or other copyrighted works for public consumption will have to filter all their users’ submissions against a database of copyrighted works. Sites will have to pay to licence the technology to match submissions to the database, and to identify near matches as well as exact ones. Sites will be required to have a process to allow rights-holders to update this list with more copyrighted works. Article 13 punishes any site that fails to block copyright infringement, but it won’t punish people who abuse the system and there are no penalties for falsely claiming copyright over someone else’s work. It also leaves you out in the cold when your own work is censored thanks to a malfunctioning copyright bot. Your only option when you get censored is to raise an objection with the platform and hope they see it your way – but if they fail to give real consideration to your petition, you have to go to court to plead your case.