Digital free speech and access activists are raising alarms that new European Union regulations under consideration will lead to massive internet censorship and a costly enforcement system that could crush innovation and competition.
It's all about online copyright enforcement and the harsh measures that content creators like media outlets and entertainment companies want the European Union to adopt in order to try to stop the uncontrolled spread of their works. So far it seems that the European Union is agreeing with the big dogs. Last week the European Parliament's Legislative Affairs Committee voted to advance a "Directive on Copyright in the Digital Single Market."
That inscrutably innocuous name for legislation hides a far-reaching proposal that has two components that are causing heartburn for organizations like Creative Commons (devoted to helping people more freely share content online) and the digital activists of the Electronic Frontier Foundation (EFF).
Article 11 will grant media outlets he authority to require anybody potentially excerpting even just snippets of their content to pay them a fee or get a license first, greatly expanding how much content is covered under copyright law. We're talking about examples like the previews of chunks of text and photos that show up when you share a link on a social media outlet like Twitter or Facebook.
Spain and Germany have previously attempted these kind of regulations at the behest of entrenched media outlets trying to protect their turf as the internet disrupts their revenue models. In Spain, the attempt to use copyright as some sort of link tax backfired terribly, prompting Google to respond by dumping Spanish media outlets from news searches. It did not open up new revenues of income for Spanish media outlets but actually reduced access. Whatever the financial solution to media disruption might be, it's certainly not trying to nickle-and-dime people for links.
A pack of more than 160 scholars sent a letter to the E.U. warning against the passage of Article 11, saying the impact would be to "likely impede the free flow of information that is of vital importance to democracy." The transaction costs of sharing information would be greatly increased and this would end up blowing back on "journalists, photographers, citizen journalists and many other non-institutional creators and producers of news, especially the growing number of freelancers."
But the problems of Article 11 are small potatoes compared to the potential impacts of Article 13. In the United States, we have the Digital Millennium Copyright Act (DMCA), which exempts online platforms from liability for copyright infringement for content posted by third-parties as long as they take this content down when copyright holders request it.
The DMCA has already resulted in a lengthy history of horrible censorship in practice, as the takedown request system gets abused to shutter fair use of content and parodies and to censor criticism.
Article 13 is the DMCA on steroids. Rather than waiting for takedown demands, Article 13 would require platforms that allow users to post and upload content to automate a system of filtering out material that has been submitted to a database as copyrighted. How would an automated system be able to determine whether copyrighted material is being published legally? The answer is that it probably won't do a good job, and that's a huge cause for concern. Timothy Vollmer at Creative Commons warns that this will have significant consequences for online speech:
Article 13 will limit freedom of expression, as the required upload filters won't be able to tell the difference between copyright infringement and permitted uses of copyrighted works under limitations and exceptions. It puts into jeopardy the sharing of video remixes, memes, parody, and code, even works that include openly licensed content.
While some might look forward to a word without memes, there are some serious, serious problems here in that the punishment will fall now on platforms because the system is stacked against them. Cory Doctorow at EFF warns how it could blow back against sites like Wikipedia:
Article 13 punishes any site that fails to block copyright infringement, but it won't punish people who abuse the system. There are no penalties for falsely claiming copyright over someone else's work, which means that someone could upload all of Wikipedia to a filter system (for instance, one of the many sites that incorporate Wikpedia's content into their own databases) and then claim ownership over it on Twitter, Facebook and WordPress, and everyone else would be prevented from quoting Wikipedia on any of those services until they sorted out the false claims. It will be a lot easier to make these false claims that it will be to figure out which of the hundreds of millions of copyrighted claims are real and which ones are pranks or hoaxes or censorship attempts.
Article 13 also leaves you out in the cold when your own work is censored thanks to a malfunctioning copyright bot. Your only option when you get censored is to raise an objection with the platform and hope they see it your way—but if they fail to give real consideration to your petition, you have to go to court to plead your case.
Now think about the costs for any sort of internet start-up, or even an existing smaller company, which "provide[s] to the public access to large amounts of works or other subject-matter uploaded by their users," that they will need to pay to comply with these rules. Just as Section 11 entrenches the control of media information distribution to a small group of established companies, Section 13 will further entrench control over online content sharing with the biggest companies who can afford to absorb and automate the costs of compliance. Edima, the trade organization that represents online companies, has a massive chart showing who could be affected by Section 13. It includes dating apps and sites, meaning they'd have to run all your pictures through a database to make sure you aren't pretending to be Brad Pitt or Scarlett Johannson online. They could get sued if they don't catch you!
When the European Union adopted expansive and expensive online data privacy regulations, observers warned that rather than reining in the influence of tech giants like Google and Facebook, it would actually allow them to strengthen their control of online spaces. And that's exactly what's happening. Those tech giants have the money and the lawyers to deal with the complex, confounding regulations. Others in the tech sector are not so fortunate.
Both of these articles, despite extremely loud opposition from online experts and tech companies, passed the committee in very split votes. So at least some members have a sense of the potentially terrible consequences. There's still a lengthy and complex negotiation process to move the directive through the European Parliament. That body is likely to vote next on July 4 and could potentially make changes if there's enough opposition.