Wednesday was not a good day for the internet.
In a morning vote in Brussels, the European Parliament Committee on Legal Affairs (JURI) voted 14-9 to approve two ridiculous own-goals within its proposed EU copyright reform legislation.
The majority of the proposed legislation, which goes to a final parliamentary vote in December, contains needed, constructive provisions for European copyright reform, But the proposed law also contains two draconian articles, approved in Wednesday’s vote.
One, article 13, sets the stage for large scale corporate surveillance of internet users, especially by the largest platforms such as Google and Facebook. The article, sometimes referred to as "the Google tax", will require all content posted to net platforms and sites by European users be filtered through tools that screen for copyright content.
The second, article 11, imposes a “link tax” requiring platforms to pay a licence fee to media companies for linking to articles.
Article 13 might sound like a good thing, shifting responsibility for misusing copyright-protected content from the individual user to the operators of internet sites.
But this isn’t copyright reform. It’s copyright redefinition to benefit – surprise – corporations.
"The Google tax is an example of what copyright has been perverted into," says Dr Eoin O'Dell, associate professor of law at Trinity College Dublin. Historically, copyright protection was intended as a reward for creative, innovative work, balanced against a reasonable time limit and room for social benefit.
“But effectively, under the spin of the big companies, it has now become a business model protecting content. This is not what copyright is about,” he says.
Under article 13, platforms will need to use automated tools to scan for copyright material, be it code, music, a video, an image, or a piece of writing. This all sounds unobtrusive and beneficial to news providers, musicians, developers and film-makers, and the JURI press release about the vote presents this in golden terms.
But what it enables – and why article 13 was so widely opposed by such a broad range of organisations and internet luminaries (such as the web's creator, Dr Tim Berners-Lee, internet pioneer Vint Cerf, and Wikipedia co-founder Jimmy Wales) – is large scale, secretive surveillance of individuals and internet sites, embedded invisibly, within the structure of the internet (what could possibly go wrong?).
"We support the consideration of measures that would improve the ability for creators to receive fair remuneration for the use of their works online. But we cannot support article 13, which would mandate internet platforms to embed an automated infrastructure for monitoring and censorship deep into their networks," states an open letter from more than 70 leading internet figures.
In addition, the world just does not have the nuanced, expert automated tools to do this oversight job effectively. Existing tools, mostly operated by – surprise again! – the big platforms, wrongly identify material as copyright protected all the time, throwing innocent users and material off platforms.
The article 11 link tax is likely to do the opposite of what is intended. The big platforms either will be the ones with the money to pay the new charge or will (as they did with individual EU states that tried to introduce such a tax before) use their massive power to negotiate free licences.
Ironically, the unintended beneficiary of these two articles are the supposed targets, the big US platforms such as Google and Facebook which have the wherewithal to comply, or can now charge for letting other sites use their existing surveillance tools, or are so large the media companies kowtow and let them link for free anyway.
Meanwhile, these articles threaten the future of code-sharing platforms, of discussion boards and blogs, of that internet mainstay, memes, of mixing music, of producing satire, because the EU has no equivalent of the US “fair use” doctrine to guarantee non-copyright-threatening use of small snippets or publicly-developed content.
Two small windows exist for salvaging this mess. One is that these articles are likely to run up against EU rights to speech and open competition. The European Court of Justice could impose limits on a new law.
A better outcome is possible through the European Parliament’s right to negotiate further on the committee’s proposals. MEPs could force out or greatly limit the offending articles, thus insuring a more vibrant and functional internet.
Now is the time to contact your MEPs and tell them that while copyright violations are an acknowledged internet problem, the provisions of articles 11 and 13 in this proposed legislation do little to resolve them in a fair, functional or appropriate way.