EU set to proceed with controversial new online copyright rules

Inevitably the EU Copyright Directive, complete with its widely despised Articles 11 and 13, is continuing its glacial progress along the European rubber-stamping conveyor belt.

Last month we reported that the directive appeared to have hit a road bump, but this turned out to be a fleeting inconvenience, resolved by the most token of concessions. Yesterday both the European Commission and European Parliament announced a breakthrough in the fraught negotiations, from which a miraculous consensus was reached.

“To finally have modern copyright rules for the whole of EU is a major achievement that was long overdue,” said VP for the Digital Single Market Andrus Ansip. “The negotiations were difficult, but what counts in the end is that we have a fair and balanced result that is fit for a digital Europe: the freedoms and rights enjoyed by internet users today will be enhanced, our creators will be better remunerated for their work, and the internet economy will have clearer rules for operating and thriving.”

“This deal is an important step towards correcting a situation which has allowed a few companies to earn huge sums of money without properly remunerating the thousands of creatives and journalists whose work they depend on,” said MEP Axel Voss, who seems to speak for the European Parliament on this stuff.

“At the same time, this deal contains numerous provisions which will guarantee that the internet remains a space for free expression. These provisions were not in themselves necessary because the directive will not be creating any new rights for rights holders. Yet we listened to the concerns raised and chose to doubly guarantee the freedom of expression. The ‘meme’, the ‘gif’, the ‘snippet’ are now more protected than ever before.”

As you can see both spokespeople are doing a heavy sell on the directive because they know it’s unpopular. Not that it really matters because In place of actual democratic accountability, the EU has a self-reinforcing system of largely opaque bodies. This is apparently done to create the impression of rigorous due process but it’s very rare for the real power in Brussels – the European Commission – to receive any significant internal resistance once it has decided on a course of action.

The most unpopular part of the Directive is Article 13, which requires sites to either seek licenses for, or pre-emptively block the upload of, any material that may be copyright protected, or face the consequences of any breach themselves. Close second in terms of public derision is Article 11, which will require a license to reproduce all but the shortest snippets of written content and may apply to things like link previews.

Appropriately enough none of the announcements linked directly to the test of the agreement, but once more we indebted to MEP Julia Reda, who quickly blogged on the matter. “The history of this law is a shameful one,” she wrote. “From the very beginning, the purpose of Articles 11 and 13 was never to solve clearly-defined issues in copyright law with well-assessed measures, but to serve powerful special interests, with hardly any concern for the collateral damage caused.”

The special interests she referred to are big publishers, who she reckons have lobbied the EU to protect their traditional revenue streams. This theory would appear to be supported by the fact that smaller publishers and rights holders seem far less keen on the new rules. Reda, who you can see alongside a small number of other dissenting MEPs in the video below, thinks the Directive can still be stopped if the European Parliament can be persuaded to oppose it but this seems like a forlorn hope.

Zoey Forbes, Technology, Media and Entertainment Associate at law firm Harbottle & Lewis, offers another perspective. “On the surface, the agreed text was an early Valentine’s Day present for creatives and the wider content industry,” she said. “Copyright holders will receive additional revenues from the use of their works online as well as greater protection from online copyright infringement.

“However, as with all things, the devil is in the detail and some stakeholders feel the safeguards offered to the tech industry have not only watered down the EU’s original objectives but will actually leave copyright holders worse off. Conversely, the tech industry and those advocating for freedom of expression are not appeased by these safeguards and continue to oppose the directive on an ideological level.”

The EU is positioning all this as protecting the European little guy from voracious Silicon Valley giants who profit from traffic driven by third party content. There is some merit to that position, but it doesn’t seem to have consulted many little guys, nor thought more deeply about the mechanics of the internet, which rely heavily on the viral sharing of stuff. It’s not at all clear that the stated beneficiaries of this set of rules will, in fact, benefit, but the EU supertanker isn’t about to change course over such minor concerns.