The Copyright Problem Best Solved By Consumers

Michael Hedges February 18, 2019 - Follow on Twitter

The European Commission, Council of the European Union and the European Parliament gave a St. Valentine’s Day treat to those hoping for fit for purpose digital age copyright rules. The EU Copyright Directive, officially Directive on Copyright in the Digital Single Market, was last updated in 2001, three years before Facebook appeared. Failure to reach agreement on copyright rules after all these years would have caused an existential crisis. There are yet more steps but baring the unforeseen - debate within the Member States - this is the legal framework that will govern copyright legislation within the European Union with effects reaching beyond those borders for decades.

This major rule-making is, to a great extent, push-back on big, mostly US-based digital technology companies that have flooded the global marketplace with products and services beloved (mostly) by regular folks (read: consumers) and hated by those missing out on the great digital money pile. These tech giants have earned considerable mistrust; Facebook and others for disrupting elections and civil society in general with fake news, concerns across the realm about individual privacy and the appearance, real or imagined, of disinterest in providing solutions within their grasp.

Driving this legislation, however, is money. The big tech companies have it and aren’t sharing. "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 the draft Copyright Directive’s principle author, German MEP Axel Voss. (See European Commission statement here)

The music and film industries are generally pleased with Article 13, which covers user uploaded content to “online content sharing services.” It places the onus on online services to either remove material under copyright or obtain a license to distribute such from the rights holder. There are so many exemptions it can only be interpreted as directed at Google (YouTube), Soundcloud and such.

“The agreement… is an important step forward to rebalance the digital market and move towards fairer remuneration for creators of all repertoires,” said International Confederation of Societies of Authors and Composers (CISAC) director general Gadi Oron in a statement, quoted by Music Business Worldwide (February 15). “This is a welcome outcome from a process that has taken three years of intense work and negotiation, and we hope that EU institutions will now formally adopt the directive without further delay.”

Consumer organizations criticize Article 13, almost universally, for denying people access to a creative outlet. “Amazingly, the tiny, useless exceptions in Article 13 are too generous for the entertainment industry lobby, and so politicians have given them a gift to ease the pain,” offered the Electronic Frontier Foundation (EFF) in a statement (February 14). “Under the final text, every online community, service or platform is required to make ‘best efforts’ to license anything their users might conceivably upload, meaning that they have to buy virtually anything any copyright holder offers to sell them, at any price, on pain of being liable for infringement if a user later uploads that work.”

Article 11 - the link tax neighboring right - fared worse. It is intended to exact tribute (read: money) from Google and any other website for providing links to third party sources. Publishers have sought this measure for years in the belief that search engines, Google News specifically, need to replace in some measure revenue streams lost to publishers in the digital age and a direct relationship with web users will smooth the pathway to subscriptions. There is no evidence the later will become reality nor the possibility Google (et.al.) is interested in protracted license negotiations with every imaginable aggrieved publisher. Article 11 also provides a licensing vehicle to benefit authors and journalists, vaguely, as well as publishers.

Even with lobbying from luminaries of online information, not to forget modernity, politicians continue to tremble before the big publishers. This “historic agreement,” said French Culture Minister Franck Riester, quoted by Libération (February 14), will "create a regulated digital environment for the benefit of the European citizen.”

Strong hints have come from Google lawyers about consequences of imposing a neighboring right like Article 11. Google News might disappear within the European Union. It has happened before, though several political watchers are convinced Google would never pull Google News out of the EU, even though the service is not a profit center. Earlier in the month, Google conducted a test of snippet-less search results in Google News, reported Search Engine Land (February 7). Surprising nobody, it showed a 45% traffic loss to news publishers, “another unintended consequence of legislation that aims to support high-quality journalism.”

The Spanish parliament passed in December 2014 an incontrovertible law obliging publishers to demand licensing from internet search aggregators. Before the law even took effect Google disabled Google News in Spain. And so it remains. Several Spanish news aggregators gave up as well as smaller publishers. Big Spanish publishers just sneered; less competition is a happy thing.

Article 11, said Spanish Association of Internet Users legal director Ofelia Tejerina, “is nothing more than a way to redistribute the cake,” quoted by Publico (February 15). “As the (internet) service providers are earning a fortune with the contents, in this case news, what the media (publishers) are looking for is something extremely crappy, which is to claim rights for a few pieces of that news. The sensible thing would be for press editors to learn to capitalize their work differently because digitalization has changed everything. In my opinion, publishers are the ones who should pay providers for their services like search engines, because they bring in users.”

The proposed EU copyright rules will be distributed to members of the European Parliament (MEPs) and staff for a debate in the next few weeks, which could involved changes. Then MEPs will vote. If successful, the new rules will be passed to all EU Member States - including the UK, assuming the transition period has not expired - for adoption within their copyright laws. For that there is a two year time frame.

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