After the European Parliament approved the EU Copyright Directive in a 348-274 vote this morning, the controversial and complicated overhaul of copyright rules in the European Union will cause major ripple effects across the web, if not change the internet for good. The new law is intended to update existing European copyright rules for the internet age, but tech companies and free speech advocates have voiced concern that the directive will negatively limit the way content on the internet is moderated and disseminated online, chilling free speech, making digital content harder to find and disenfranchising smaller businesses who can’t afford to comply with the rules.
Advocates of the directive, though, argue the requirements will give publishers and content creators more control over their work and allow them to reap the financial rewards of their content when it’s disseminated across the internet.
Ongoing discussion and protests around the bill’s passage have been contentious, and a Change.org petition opposing the directive has collected more than 5 million signatures as of today.
Policy experts expect the rules will have consequences around the world.
“The EU is, for better or for worse, a global standard-setter on internet policy,” said Raegan MacDonald, the head of EU public policy for the open-source software company Mozilla, which opposes the new rules. “ … I don’t think it will be long until it comes to the U.S., and the way the EU and the U.S. have been looking at the tech-lash and examining the responsibility of platforms, the discussions are actually quite similar.”
What the directive is
The EU Copyright Directive is a series of rules aimed at updating copyright regulation to account for the digital age. In broad terms, the rules are intended to give copyright holders, like publishers and content creators, more control over how their content is used across the internet and provide more ways to earn money from their content. It’ll also expand the ways some content can be used for educational and cultural purposes.
Two portions of the directive in particular—Article 11 and Article 17, previously numbered Article 13—have drawn the greatest deal of attention and scrutiny. Article 11 will require web platforms and news aggregation services to pay publishers when they aggregate small portions of their content in search results, a policy that’s been referred to as a “link tax.”
The other, Article 17, holds for-profit platforms accountable for copyright-infringing content that appears on their sites. In practice, it will likely mean companies would have to implement a screening process before content can live on their platforms, much like YouTube’s Content ID upload filter, which checks for copyrighted music and other assets prior to upload.
Legislators supportive of the articles say that the law will make the internet fairer by ensuring that content creators are compensated when their content is used and aggregated, and by requiring tech platforms to ensure that content they profit from is not infringing copyright. People opposing the directive are much less optimistic, saying the bill will limit the spread of information, chill free speech and prevent small platforms from competing with the established tech giants.
What publishers think
Media associations and groups that represent big publishers operating in the EU have expressed support for the finalized text, and are particularly enthusiastic about Article 11, which they say will allow them to get more money from search results. More than 270 organizations comprising groups representing news publishers, photographers and music publishers advocated for the rules, and in a joint statement called the bill a “historical opportunity” to help build “an internet that is fair and sustainable for all.”
Not every publisher is on board. A study prepared for Parliament, which concluded that Article 11 would not help fund the media industry as intended, found that many journalists opposed the proposal.
Allison Davenport, a technology law and policy fellow at the Wikimedia Foundation, said that for platforms like Wikipedia, the link tax will affect contributors’ abilities to find information for Wikipedia and will ultimately shrink “the depth, accuracy and quality of Wikipedia’s content.” The Asturian, Catalan, Galician and Italian versions of Wikipedia blacked out the sites today in protest of the directive.
Similar link taxes have been shown to have negative effects on publishers elsewhere; in Spain, for instance, a similar legislation requiring Google pay all publishers for snippets included in its news aggregation service that Google News pulled out of the country entirely, leading to a dramatic decline in traffic to Spanish newspapers.
After a similar bill passed in Germany, Google simply refused to pay publishers to include their content and waited for publishers to waive the legally-imposed fees. The German publisher Axel Springer tried to hold its own against Google, but after suffering a 40-percent drop in traffic, caved, and let Google include snippets of its news content without paying.
It’s unclear what exactly the rules might mean for U.S. publishers, who last year told Adweek they were uncertain about whether the rules could hurt or help U.S. publishers not beholden to the same rules.
What platforms think
Big tech platforms have come out against the bill. In a company blog post published in early March, Google svp of global affairs Kent Walker said the directive “creates vague, untested requirements, which are likely to result in online services over-blocking content to limit legal risk.” Google has also expressed opposition to Article 11, which would require web platforms pay publishers for aggregating portions of their content, including photos and snippets of articles. In a statement today, a spokesperson for Google said the law will be bad for businesses.
“The Copyright Directive is improved but will still lead to legal uncertainty and will hurt Europe’s creative and digital economies,” the spokesperson said. “The details matter, and we look forward to working with policy makers, publishers, creators and rights holders as EU member states move to implement these new rules.”
Facebook, which has previously voiced opposition to parts of the directive, did not immediately respond to a request for comment.
Smaller platforms that might not be able to shoulder the cost of creating a content-filter or afford the legal risks of hosting content could face even tougher barriers to entry as a result of the bill, MacDonald said in an interview with Adweek prior to the directive’s final approval. She said she feared that the rules will further entrench the power of the big internet platforms because those companies will have the resources to manage it.
“If you are not YouTube or Facebook, which has its own tailored tech, and if you are not one of these platforms with massive resources, you might just not take the risk,” MacDonald said. “We are concerned that we will see much fewer open platforms because of this.”
The Electronic Frontier Foundation, along with other digital rights groups and free speech advocates, have warned that platforms’ content-filtering processes could chill free speech and creativity online, especially when those processes often happen automatically and without human review.
“Machines are good at many things—making the final determination on your rights isn’t one of them,” EFF activism director Elliot Harmon wrote in a February blog post about why the group opposes upload filters that the copyright directive would ultimately require.
What happens next
It’s likely that the final text of the bill will be approved by legislators later this month. Barring even more pressure on legislators and a reversal of an EU country’s stance on the bill, the directive will get a final rubber-stamp, and countries in the EU will have until 2021 to implement laws of their own that match the directive. What that will mean in practice, though, is unclear—primarily because the text of the directive leaves lots of room for legal interpretation.
“I think the legal uncertainty that will be created is really overwhelming for even large companies,” MacDonald said.
It’s not just the internet in the EU that stands to change dramatically once the bill is implemented. If the industry learned anything from the passage of the EU’s General Data Protection Regulation, it’s that what happens in the EU doesn’t stay in the EU. Free speech advocates, small publishers and platforms say they will continue to ring the alarm bell hoping to stop other legislative bodies from adopting similar rules.
“The EU has squandered the opportunity of a generation,” MacDonald said, “… and the biggest loser out of this whole reform will be individual users.”