Episode 108: Mega Corporations React to EU Legislation

Previously in Europe

• Episode: Episode 108: Mega Corporations React to EU Legislation
• Website: Previously in Europe
• Feed URL: http://simplecast.com/podcasts/2120/rss
• Duration: 00:25:36
• Published: 2018-12-02 23:10

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Show Notes:

Voting History

• Rejected narrowly in June after 2 years of negotiations and drafts (https://www.politico.eu/article/european-parliament-votes-to-block-copyright-reform/)

• After some edits and a whole lot of lobbying it passed parliament (https://www.theverge.com/2018/9/12/17849868/eu-internet-copyright-reform-article-11-13-approved,
  https://news.vice.com/en_us/article/9kv5pa/eu-copyright-directive-vote-internet, https://www.politico.eu/article/european-parliament-axel-voss-backs-copyright-reform-against-tech-giants-google-facebook/)

Some of this is fine:

Article 3 proposes an exemption for text and data mining for scientific research - this would be sweet as generating data-sets is a massive pain as it is! This would potentially create a case to open up more scientific research to being used in research (see the open access movement if you're not familiar with why is this such a problem)

Article 4 potentially adds exemptions for using copyrighted works in educational material including digitally (So "on the interweb"?)

Article 14 adds some transparency obligations for rights holders to the original performers, requiring them to provide updated on the use and any payment owed

Article 15 would allow for renegoiation for authors who have found their royalties from rights holders to be disproportionately low.

Some of it is not fine in its current form

• Article 13 takes aim at "online content sharing service providers", aimed at getting rid in part of the "Mere conduit" exception from the original 2001 directive. The original being written in a time before YouTube or proper social media as we now know it didn't imagine YouTube not being liable for copyright just because they're only the "conduit". It seems pretty specifically targeted

"...store and give the public access to a large amount of works or other subject-matter uploaded by its users which [they] organise and promote for profit-making purposes"

• Article 11, or so called "link tax", does something which appears very straightforward:

"Member States shall provide publishers of press publications with the rights provided for in Article 2 and Article 3(2) of Directive 2001/29/EC for the digital use of their press publications"

So those two are detailed in the original 2001 directive here (https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32001L0029&from=EN). Cool so that's fine right... but way so publishing excerpts in the way Facebook and Google do won't be cool anymore. That might be a problem, people love their Google news and sweet Facebook links.

Mega Corporations react to... complex regulations

YouTube have launched a pretty full on attack against the directive, specifically targeting "article 13". Their CEO wrote an op-ed for the FT and republished it on their blog (I guess to be paywall free.. https://youtube-creators.googleblog.com/2018/11/i-support-goals-of-article-13-i-also.html).

Their argument is effectively that if you hold them directly accountable for copyright infringement on their platform they will probably just have to block things from outside the EU to EU countries. What about creators in the EU? Their content will probably have to just be deleted.

Content ID, YouTube's often controversial and much hated system for automatically flagging copyrighted material, already exists. They instead "welcome the chance to work with policymakers and the industry to develop a solution within article 13 that protects rights holders while also allowing the creative economy to thrive", which sounds like "let's make a more aggressive version of Content ID". The existing system already has problems with cases of record labels trying to claim copyright on music they clearly don't own and any version of fair use being ignored (Nintendo's aggressive removal of game play clips being a good example). It's already very in favor of the rights holder... Unsurprisingly YouTube's suggestion makes it good for YouTube because at the cost of some more development money they get to remain the only platform with the existing tech to have a 'compliant' user generated platform.

Their core point makes a lot of sense - the EU has written the regulation in terms that don't really make sense on the scale of YouTube. Regulators are in a sense asking for a system where only things which have been vetted will get posted... This is basically impossible for the volume YouTube adds daily. For music this would probably mean a return to mid 00s style music piracy to some extent in Europe where nobody got paid at all. How would something like Mastodon be approached since they're technically not the "platform", people running instances would be responsible.

They've created a whole page of videos where hip YouTubers from Europe explain why this is bad https://www.youtube.com/saveyourinternet/ . It also includes a Youtube guy talking in his best YouTube voice explaining they'd simply have to block EU YouTubers. It's well polished but really their search for compromise is probably not in the interest of the little guy.

Extend the existing directive

This is effectively an attempt to expand the Copyright Directive (https://en.wikipedia.org/wiki/Copyright_Directive) to cover social media, expand the use of automated controls and generally make the directive more modern. The extensions proposed and approved by the parliament are pretty extensive (https://en.wikipedia.org/wiki/Directive_on_Copyright_in_the_Digital_Single_Market)

Full text - https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52016PC0593&from=EN

Criticism

So there's two great examples which lay out some good objections to the way this is described:

EFF

(https://www.eff.org/deeplinks/2018/10/effs-letter-eus-copyright-directive-negotiators)

Two main problems described:

• Copyright complains are currently wildly overused because there's no repercussion for incorrectly claiming copyright as it is... so making the claims stronger is a terrible idea.

"Online service providers should be able to pre-emptively strike off a rightsholder who has been found to be abusive of Article 13 by another provider."

• Article 11 is way too broad in its current language. What is a link? How big a quotation requires permission? I'd say a lot of online publications don't want it to be any length.. but if the EU wants to direct this they need to have specifics!

Julia Reda MEP, Pirate Party

(https://juliareda.eu/2018/11/youtube-article-13/)

On the more idealistic end - They're both wrong. YouTube's compromise will just end with hyped up Content Id and the existing text is only there for the music and paywall news industry to get some version of their old business model back in a world that's moved on from it.

A sadder part from a parliament member is that there's worry the good parts will be quietly removed in renegotiation in order to get to a compromise... so the actual artists get nothing new but the companies that benefit from and those who collect their lenience fees get a bunch.