Friday, July 06, 2018

EU copyright directive exchanges with MEPs

Ahead of the EU parliament vote on the proposed copyright directive yesterday I wrote to my 10 MEPs asking they vote against articles 11 and 13, the link tax and the upload filter. Janice Atkinson had indicated in advance of the vote she would be opposing the measures so I thanked her for her stance. The text of my email to the other 9 was -
"I am constituent of yours resident in [redacted]. I also work for The Open University and write about technology policy, though my views below are mine alone and do not purport to represent the position of my employer.

I wanted to briefly encourage you to vote against the copyright directive coming before the EU parliament tomorrow, 5 July, 2018. I have particular concerns about the text of articles 11 and 13 of the directive adopted by the JURI (Legal Affairs) committee on 20 June.

On article 11, you will be aware that this is a new press publishers’ copyright which lasts for 20 years. It has been called a link tax, a snippet tax, a publishers’ right, a neighbouring right and an ancillary copyright. The idea is that anyone linking to and using snippets from news articles would be required to pay the publisher for a licence first. Similar provisions were introduced in Brazil, Germany and Spain and failed to address the serious issue of declining revenues for press organisations. The German law has been referred to the European Court of Justice and in Spain it resulted in a drop in internet traffic to news websites, particularly small and medium newspaper sites, after Google shut down Google news in Spain.

Article 13 is more serious and amounts to implementation of an upload filter for the internet. In principle, one can see why this could be attractive, if it could work as advertised, blocking all the bad things from the internet and letting through all the good. The problem is that there is no magical computer software that can tell the difference between copyright infringing and non-infringing material, except at the crudest level. Computers are good at many things but making decisions about the subtleties of what does and does not constitute copyright infringement is not one of them. Under any plausible filtering requirement, online material which has not usually been thought of as invading copyright would be automatically removed. A software filter is not going to be able to make fair and reliable decisions about what should be permitted to be published. The certain consequence of deploying “effective content recognition technologies”, in the wording of article 13, is that legal material will be blocked and/or taken down.

There has been a lot of heat and not much light generated in the public debate on articles 11 and 13 but in their current form neither is fit for purpose. So I would ask you, as a constituent and an academic who has worked on technology policy for over two decades, to encourage your MEP peers to remove them both from the proposed copyright directive.

Thank you for your time and consideration and if you need any further information do not hesitate to get in touch. In the meantime might I recommend this Statement from European Academics
to Members of the European Parliament in advance of the Plenary Vote on the Copyright Directive on 5 July 2018"
I have had responses from Janice Atkinson, Catherine Bearder and John Howarth. Ms Atkinson confirmed she was doing her best to oppose the article 11 and 13 measures. Mr Howarth's response was thoughtful.
"Dear Ray,

Thank you for writing to me on the changes to Copyright legislation currently before the European Parliament.

I am closely following the debate on copyright which, as someone who ran a creative business for many years, this issue is of long-standing interest to me. I can also tell you, based on my experience, that copyright law with the advent of the digital economy is simple not working.

The debate is complex but the current situation is serving nobody’s interests other than those of the large internet platforms. This is not in any way a sustainable situation and change is clearly needed. In my view that change must address two particular problems and must ensure that several key principles are protected.

It is right that artists and creators are rewarded for their work. This is both a principle and a practical problem with the way the internet has destroyed value in a number of industries. Recording artists in particular but also other creatives have been severely impacted by a ‘sharing economy’ which essentially rips-off their work. In this case the recording companies are also badly affected and the winners are the likes of YouTube. Of course there are also contradictions - recording artists benefit in terms of profile and exposure but ‘profile’ alone does not pay the bills. These concerns are shared by written word publishers and those in other creative fields, though it is also fair to say that I have had representations taking a different view.

Journalism and a free press has to be paid for. Professional journalism, on which a free press depends, is not ‘free’. The decline of newspaper circulation, the changes facing broadcasting organisations and the emergence of news aggregators and search have rendered unviable the business model on which pre-internet media was based. The contradiction is that more people than ever see newspapers in their on-line form, yet again it is the platforms and search organisations that benefit in terms of advertising revenue. If professional journalism is to survive in a sufficiently diverse form to feed a free press (with all its failings) then news organisations need to be able to benefit from their readership. Article 11 would appear to help this situation somewhat.

Free academic enquiry is essential. Academic enquiry necessarily involves the citation of other works. I would be unhappy with any proposition that constrained the ability of academics and researchers to publish and share works and references. Changes have gone some way to assure me that the proposals would not threaten this area, however, their ‘over implementation’ conceivably could. I am concerned that we could exchange one inadequate situation for something even worse.

I have grave reservations about the notion of policing the internet through the application of algorithm and content recognition. I would also be unhappy with the notion of ‘link taxes’ applied indiscriminately.

These are the principles around which I will make a judgement, however, it is fair to say that there are a whole range of other issues that impinge upon the digital economy that cut across the debate on modernising Copyright. The interests of consumers are also important, looking after local cultures and languages have depended upon a localised broadcasting framework matter to many people. The current legislation cannot be reduced to a simple choice.

I am not involved directly with the committees considering this legislation and so have not, as yet, been able to look at the modification made this week in detail. I was far from convinced by what had originally been presented. I would assure you that before I come to vote on this matter I will be discussing the matter with colleagues and considering the implications carefully.

Thanks again for getting in touch.

With best wishes,

John Howarth MEP
On your side in Europe."
I have further responded as follows -
"Dear John,

Thank you for your thoughtful response. It is quite unusual to see a politician showing a nuanced understanding of the complexities of the modern copyright landscape. Though I suspect we might disagree on some of the detailed practicalities, if the public debate on the matter could be conducted at this level, we would all be better informed and the pipe dream of developing evidence based copyright policy might begin to become a remote possibility.


Ms Bearder is keen to find a way to address the issue of fair remuneration for creators -
"Dear Constituent,

Thank you for your email about European Union (EU) rules on copyright.

As you can imagine, I have received thousands of emails about the issue and voted against the copyright proposals because I wanted the European Parliament to better scrutinise them.  I think it is really important the whole Parliament has a real in depth say on this proposal.

My Alliance of Liberals and Democrats in Europe (ALDE) colleagues and I have been concerned about these new Internet copyright rules from the European Commission for some time.  That is why well before the vote I co-signed a cross-party letter about copyright reform and impact on access to news.  The letter voiced concern about the impact of a new neighbouring right for press publishers on access to news and information.  It calls for replacing the current proposal of the Commission by an alternative, less invasive, and more proportionate solution which would continue to support quality journalism and freedom of the press in the digital age.

However, I do think the time has come for creators to get fair remuneration for their work.  That is why the Parliament’s Legal Affairs Committee has backed an update on the current EU’s copyright rules.  The ALDE group managed to secure better protection for right holders’ works and therefore a fair remuneration for creators.  We definitely need to make copyright rules fit for the digital age and should harmonise rules across our Union.  At the same time, we have to make sure that authors’ or performers’ works will be better protected when uploaded on big platforms.  The European Parliament wants to make it now possible to better identify protected works online and therefore ensure that creators receive a fair share for the use of their content.

I do hope the EU does not implement the current copyright proposals and takes time to draft a sensible and measured review of our copyright rules that do not censor the Internet.

Yours sincerely,

Catherine Bearder

Catherine Bearder | Lib Dem member of the European Parliament for the South East of England"
I have further responded -
"Dear Catherine,

Thank you for responding to my email when you have had thousands to deal with.
Ensuring creators receive a fair share for the use of their content is a commendable aim we can all sign up to.
How we go about doing that is the complicated question.
I suspect the regulation of imbalanced industry contracts with creators may be a more effective measure for addressing this problem.
Sensible and measured review of copyright rules is, I agree, overdue and copyright proposals that censor the internet are a destructive option on multiple fronts.
Thank you again.
I wrote an analysis, ahead ahead of the vote, for Crooked Timber, of the proposed articles 11 and 13.

Thankfully the EU parliament, yesterday, essentially rejected the proposed JURI (Legal Affairs) Committee text for the copyright directive. The vote was 318 against to 278 in favour, with 31 abstentions. The Parliament’s position will now be up for debate, amendment and another vote in September.