European Union introduces new copyright rules to further infringe on freedom of speech

On Tuesday, members of the European Union Parliament approved new online copyright rules by voting in favour of the Directive on Copyright in the Digital Single Market. As the EU Parliament put it, the new rules aim "to ensure that the longstanding rights and obligations of copyright law also apply to the internet” and has brought intense criticism from technology companies, freedom of speech activists, and content creators.

A majority of EU member states now need to approve the final text when representatives meet next month. After that, the Directive needs to be implemented by each member state, and those implementations may not be the same. Now, a two-year countdown begins before EU countries turn the Directive into national law. During that time, expect advocacy groups to challenge the requirements in court. Everyone using the internet in Europe and every company doing business there will be affected in some way, though no one is quite sure how.

Article 13 requires anyone sharing copyrighted content to obtain permission from rights owners, even if the content is just an animated GIF on Twitter. Even repurposing an image for a meme would require permission from the image's creator, because while memes are protected as parodies under current copyright law, an automated filter is incapable of distinguishing between a parody and a rip-off. Memes are a particular target because conservatives are vastly more successful in creating and communicating a message with them, which run predominantly against mainstream media narratives.

User-generated content platforms from Facebook to Wikipedia will now be forced to implement “upload filters” to ensure material doesn’t infringe on someone else’s copyright or risk being sued. The filter would analyze the content being uploaded, compare it to a database of copyrighted works, and either permit its passage or kick it back to the uploader. Prohibitively expensive, vulnerable to bugs, and prone to extensive collateral censorship, such filters have the potential to effectively hobble the free exchange of information the internet has come to represent. As has been proven in other instances, algorithms have the potential to, for example, influence millions of votes in an election.

Article 13 will require news aggregators that want to display content from news providers to obtain a license for anything more than "very short extracts." Article 13 has been derided as a "link tax" that will damage small publishers and news-related startups, however the EU Parliament insists this is not true and notes that hyperlinking has explicitly been exempted in the directive. Content aggregators, including those such as Google may choose to avoid publishers that demand payment or bestow a competitive advantage (e.g. ranking) to publishers offering favorable licensing terms. Given how publishers in Europe have regretted the loss of visitor traffic that follows from Google excommunication, they may prefer low- or no-cost licensing to obscurity.

Article 15 allows websites to be sued for copyright violations by their users and requires internet companies to adopt upload filters to prevent copyright liability arising from users. Websites may be able to avoid liability with an algorithm, of which the current absence of any foolproof system suggests automated solutions will fall short, or by hiring people to provide editorial oversight. The human option would not work at the scale contemplated by Google or Facebook where the cost in editors would exceed the ad revenue, but it might turn out to be the only way to limit user-generated misinformation.

As the European Commission explains, "The draft directive however does not specify or list what tools, human resources or infrastructure may be needed to prevent unremunerated material appearing on the site. There is therefore no requirement for upload filters. However, if large platforms do not come up with any innovative solutions, they may end up opting for filters."

International director of the Electronic Frontier Foundation (EFF) Danny O'Brien said in an interview, "When this first came up, even the original language was so difficult to imagine being successfully implemented, that it was hard to believe anyone would even try to pass it into law. Now after it has gone through the mincing machine of the negotiation, it's even more incoherent."

A version of Article 13 passed the Parliament in September despite widespread public outcry and mutated into an even more restrictive proposal during closed-door negotiations between lawmakers and major corporations. “Dozens of MEPs are undecided on how to vote,” the EFF tweeted, highlighting the “Save Your Internet” campaign it has vowed to fight to the bitter end. “Everyone is against it: artists, small businesses, big businesses, the Internet’s creators, and over 5 million people who signed the petition to stop the censorship machine it would create,” the group said.

Aside from member governments and wealthy copyright-holding corporations, it’s difficult to identify supporters for the restrictive provision. “Such sweeping pressure for pre-publication filtering is neither a necessary nor proportionate response to copyright infringement online,” said David Kaye, UN special rapporteur on freedom of opinion and expression.