Hyperlink Taxes? Meme Bans? E.U. Pushes Forward with Massively Terrible Copyright Regulations

The media are supposed to fight censorship. But to protect their financial interests, some European publishers want to mandate it.


Minion meme
Minions via Universal Pictures

Hyperlink licenses? Legally forbidden memes? That's what may be coming.

A European Union plan to update copyright protection laws for the internet era is getting even more oppressive, and the recently released iteration of the European Copyright Directive has supporters of free speech seeing red.

There's a possibility that online platforms will have to seek out a license (and possibly pay) simply to show snippets of content when linking to pieces at news sites—and that any online platform that lets users upload their own content will have to impose filters (and again, possibly, pay a lot of money) that will block copyrighted content from being posted.

We've been noting what's been going on with Article 11 (the link tax) and Article 13 (the upload filter) since last summer. It looked as though resistance to the massive breadth of the regulations might lead to some reforms. (Article 13 might be so broad that it bars people from posting memes that include copyrighted images.) But Julia Reda, a member of the E.U. Parliament and member of the German Pirate Party, warns that they've actually made it even worse.

In an article posted on her site this week, Reda says that under Article 11 as it is currently written, "Reproducing more than 'single words or very short extracts' of news stories will require a license. That will likely cover many of the snippets commonly shown alongside links today in order to give you an idea of what they lead to. We will have to wait and see how courts interpret what 'very short' means in practice—until then, hyperlinking (with snippets) will be mired in legal uncertainty." There are no exceptions to this rule, and there's no opt-out process for media outlets to proactively declare they're OK with people excerpting their works.

This is being pushed by large publishers, who have apparently decided to blame their financial woes on news aggregators, rather than the disruption to their dominance as an advertising platform. Google has warned that Article 11 will not accomplish what these publishers think it will, and that the end result will be to make it harder for consumers to find quality news stories online. Google has experimented with producing news search pages that are compliant with Article 11, which essentially means linking to media outlets without including anything that identifies the content on the other end. Last week Kent Walker, the company's senior vice president of global affairs, warned the law will result in massive traffic losses to media sites.

But it will probably hurt small and new, emerging publishers more than it hurts the entrenched outlets, and that probably suits those bigger folks just fine.

Meanwhile, Article 13 may be disastrous enough to just wreck everything. Cory Doctorow, writing at the Electronic Frontier Foundation's websote, notes that the new version of Article 13 requires any online platform or service that has been around for more than three years or earns more than $11 million a year to make sure no user posts anything that infringes any copyrights. Period.

This aggressively proactive demand will require that platforms put into place upload filters—which are both very expensive and prone to mistakes—to check anything people post against databases of copyrighted works. If a court determines that a platform isn't trying hard enough to stop such uploads, the platform can be held financially liable.

As Doctorow notes, only the biggest of tech companies can afford these filters. (And even they struggle to actually keep copyrighted content off their sites. Indeed, it's not always clear who all the copyright holders even are.) The extremely predictable outcome of such a broad law will be massive amounts of censorship by websites worried about the potential financial implications of failing to catch copyrighted material. Nobody wants to get fined by some E.U. court because one of your Minion memes offended some lawyers over at Universal Pictures. Even a dating site could be held responsible if someone posts a copyrighted photo.

Needless to say, this all has enormous implications for the right to speak. We've already seen people (particularly businesses) use copyright claims to try to scare online platforms into deleting content that critiques them. This is just absolutely ripe for abuse.

These regulations could still be killed. While resistance from enough member states could block it, Reda predicts that the most likely way of stopping these terrible regulations will be at a full vote by the E.U. Parliament in either March or April. She and the Electronic Frontier Foundation are calling on constituents in the member countries to contact their members of th E.U. Parliament.