Response from MEP on copyright directive

I've had a response from Labour MEP, John Howarth to my email yesterday asking him to oppose the article 13 provisions in the proposed EU copyright directive.

"Dear Ray Corrigan

Thank you for your email regarding Copyright legislation.
Just to let you know before I was an MEP I ran a business in the creative sector developing copy, images, brands and content. When I am not doing my day job I play music - though I don’t get a lot of time to perform right now. I started my business career in the software development sector and have worked with aspects of the internet since the days of green screens. Not exactly typical for a politician, I agree, but you will forgive me if my experience informs my thinking.
For far too long people who work in the creative sector have been ripped off by the monopolistic internet platforms who place their work on line and use their content to make their services credible and to attract advertising revenue yet fail properly to reward the creators. Musicians and performers generally consider themselves lucky to do what they do but they also deserve fair reward for their work. The audience see a performance or hear a three minute song - but those things are built over years of learning a craft and endless hours practicing and rehearsing. Images can be created in a couple of hours but ideas and concepts take time and collaborative effort to develop. The internet has created new jobs and made some people very rich indeed but it has also destroyed value and exploited the skills and creativity of many others.
So as well as people who write to me demanding that we “save the internet” I also receive representations from the National Union of Journalists, the Musicians’ Union, publishers’ group’s, media organisations and creative industries representatives putting their side of the story.
Among all of this claims have been made about the proposed legislation that are wildly exaggerated or simply untrue. The implementation of updated copyright legislation will NOT end the internet as we know it. It will NOT constrain or unduly limit ‘free speech’, it will NOT place an unreasonable burden on the internet giants who have put significant time and effort into misleading people because they believe it threatens their super profits. It will not “outlaw memes”, it protects and defines the notion of satire and parody (which, by the way, were not in any way protected in the outdated copyright regimes that have applied till now). Exceptions set out in the legislation protect free academic enquiry, small businesses and bloggers.
I do not believe that the legislation in any way limits the ability of the open source software community to continue to trade on the business model it has operated for some time - in other words the ‘sharing economy’ will continue to do just fine. The monopolistic platforms benefit from this “free internet”, however the fact is nothing is “free” - someone always pays, whether through collection of personal data in exchange for access or by the exploitation of their work.
During the debate and before the first round of votes on the Copyright Directive I thought long and hard about how to approach the issue. While I have a degree of sympathy for the arguments about freedom of expression I am also concerned that the ‘free internet’ currently operates in an environment where the strong and powerful exert their influence without check and individuals are frequently bullied and victimised and the platform is exploited by peddlers of hate. As a local public representative I had to address several cases of unchecked systematic bullying over the internet and all of the evidence suggests that these problems had got worse, particularly in the public space and it is my firm view this is poisoning public discourse. I fail to see why the right to free expression should apply to people hiding behind cloaks of anonymity while others who express opinions in their own name are subjected to aggression in spaces into which the public have been invited. This concept of “freedom” is essentially a right-libertarian view and not one I share. The internet is the Wild West and, if it is not to become a tool of repression, must before long become civilised and subject to the rule of law where members of the public are able to participate on the same basis as any physical public space.
So I will be supporting the compromise reached between the Parliament and the Council on the Copyright Directive, because of the above and not least, because addressing the ‘value gap’ between platforms and creatives was part of Labour’s 2017 election manifesto in the UK.
Thank you again for contacting me.    
With best wishes,
John Howarth MEP On your side in Europe.www.johnhowarthmep.uk"

My further response to Mr Howarth was as follows:

"Dear John,

 Thanks for the considered response. You might be surprised to learn that I agree with your concerns about the disproportionate power of the big tech industry, particularly the big five, Google, Facebook, Amazon, Apple and Microsoft. You’ll no doubt be aware of the recommendations of the recent report of the House of Lords Communications Committee 

- https://www.parliament.uk/business/committees/committees-a-z/lords-select/communications-committee/news-parliament-2017/internet-regulation-report-publication/  

and the Disinformation and Fake News report of the Commons Digital Culture Media and Sport Select Committee -  

https://www.parliament.uk/business/committees/committees-a-z/commons-select/digital-culture-media-and-sport-committee/news/fake-news-report-published-17-19/  

which make well intentioned efforts to reign in the big technology monopolies. What you cannot do, however, is fix a disproportionate monopolies problem with automated upload filters, which is what the most recent version of Article 13 of the copyright directive that we are aware of attempts to do 

 https://juliareda.eu/wp-content/uploads/2019/02/Art_13_unofficial.pdf  

However, software is generations away from being able to make the kind of nuanced assessment of what might constitute copyright infringement that is required. If you get two copyright experts to assess whether something is infringing or not you’d get two (or more) different views in each case. What experts cannot agree on, you will never teach software to come to an appropriate conclusion on. Yet the problem with article 13 is not just automated prior restraint of speech, in the name of preventing copyright infringement but that the very companies it is professed to protect creators and the creative sector from will be the ones building and operating the filters. Article 13 will incentivise big tech to continue to develop, refine, implement and operate content filters – like YouTube’s Content ID system – and will add to their monopoly portfolios the realm of internet censors. It will also stifle innovation as small start-ups will not have the resources to develop or operate the required software filters.  

Though it’s not directly related to the copyright question, you raise the issue of the misuse of the internet for nefarious activity. The internet is already a tool of repression and oppression, aggression, bullying and hate mongers, shysters and criminals, unethical human behaviour of every variety. In that it is a mirror of human nature and we should not confuse the tool with our inherent psyche. It is also the greatest engine for mass communication and creativity in the history of the planet. As for poisoning public discourse, certain prominent members of your own profession and the popular mainstream media have a less than pristine record – it is and has long been virtually impossible to conduct an informed and nuanced public debate about any complex socioeconomic matter, without being vilified by someone taking words or phrases out of context or distorting what was said to pursue a particular agenda.  

On the question of the rule of law, is not true that activity on the internet is not subject to the rule of law. Just to start with, consider –  

The Public Order Act 1986 

The Copyright, Designs and Patents Act 1988 

The Malicious Communications Act 1998 

The Copyright and Related Rights Directive 2001 

The Communications Act 2003 

The Digital Economy Act 2010 

The Counter Terrorism and Security Act 2015 

The Investigatory Powers Act 2016 

The Digital Economy Act 2017  

S127 of the Communications Act 2003, s4 & 5 of the Public Order Act and s1 of the Malicious Communications Act have been used to convict someone of a criminal offence for making a joke on Twitter, in addition to prosecuting people spreading hate speech and racist comments for which the offenders were jailed.  

If your goal is genuinely an internet “subject to the rule of law where members of the public are able to participate on the same basis as any physical public space” then there is a fundamental principle of law that is the presumption against prior restraint of speech. Not all restrictions on free speech are a breach of the prior restraint doctrine – e.g. in relation to national security matters – but the long standing principle is that it is safer to impose penalties after publication. So automated upload filters, mandated by article 13 of the copyright directive, will not only hand the global censorship keys to the big tech monopolies but will undermine your stated intention in relation to the rule of law.  

Finally in relation to the ‘value gap’, it would be better described as a revenue gap. It’s been crafted as a value gap by public relations people attempting to influence legislators, like your good self, in order to get laws like article 13 passed that impose liabilities on internet intermediaries. What the commercial sector supporting article 13 are saying is they would like a bigger slice of the revenues currently going to big tech. Google already has licences with the music industry. Not a lot of the revenues arising from these flow to the individual creators. It has always been so. Prior to our information age, if I may borrow your own words, “for far too long people who work in the creative sector have been ripped off” by the oligopolistic creative commercial sectors. The fundamental problem of the imbalance in power will not be solved by copyright law and the revenue flow issue is more of a competition law problem. 

The creative industries are more economically buoyant than they have been in a generation and the EU is proposing to pass a law to leverage big tech into giving them more money. The collateral damage will be significant.  

It will damage the internet as we know it in the EU.  

It will mandate automated software filter prior restraint on speech, with the keys to those filters controlled by the very big tech monopolies it is proposed to reign in.  

It is irrelevant whether the intention is not to outlaw memes, to include exceptions for satire, parody, free academic enquiry, small businesses and bloggers – the big tech software filter operators will be police, judge, jury and censor.  

Like you, my experience informs my thinking.  I am an academic writer, teacher, manager, blogger with a long standing interest in technology policy. For years, Yahoo! search labelled my blog with a red warning triangle and a note in red font “Warning! Dangerous Download!” If this Article 13 filter had been in place the 4700+ articles I’ve written on that blog might never have seen the light of day.  

My son works occasionally for a small roving theatre company, a charity, producing videos and other multimedia works for them. Towards the end of last year one their videos was taken down by YouTube for alleged copyright infringement, despite the charity having paid for and cleared the licence for the background music used. He spent weeks getting YouTube to re-instate the video, including dealing with threats that the charity would have their account suspended permanently. That charity might not have an outlet on the world wide web at all, if the article 13 filters had been in place. 

 It’s a fallacy to believe the future monopolistic wielders of article 13 censorship keys – Google and the other big technology companies amongst them – will protect the interests of a single academic or small enterprise, other creators or the creative industries. They will not focus on anything other than their own economic interests.  

It is clear from your response that you are unlikely to change your mind on the copyright directive. I trust you won’t mind if I publish this correspondence on my blog in the hope of reaching a wider audience, before an article 13 software filter takes a dislike to my words and engages in some routine prior restraint.  

Regards,  

Ray Corrigan"

Update 22/3/'19:

Mr Howarth's  Political & Staff Manager Jim Robbins has kindly acknowledged my response and explained Brexit is pretty much getting in the way of everything at the moment; but that they will consider my perspective seriously.

Ray,

John has asked me to let you know that he really values your response and will consider it fully and speak to colleagues who have been involved with the debates on Article 13 and copyright.

He will respond fully in due course but, as you can imagine with the Brexit situation, things are pretty hectic here at the moment so I’m not quite sure when that will be.

Thanks for your email and the response.

Kind Regards,

Jim

Jim Robbins

Political & Staff Manager

Office of John Howarth MEP for South East England

Entirely understandable.

Many thanks Jim. I appreciate the acknowledgement. Good luck to John and those of you working with him in making a constructive contribution to finding a way out of the appalling Brexit chaos. Given the news from BMW recently that they will consider shutting down the Mini factory in Oxford, should Brexit go badly, you and John will be acutely aware of the deep concern it is causing in my area of the country. 

Regards,

Ray