It’s been a transformative year for the internet, and the European Union has, through legislation, repeatedly put itself at the center of controversies. This week, the European Parliament voted in favor of the Copyright Directive, including new versions of two particularly controversial amendments which prevented the measure from passing in July, according to The Verge. Article 11 and 13 have been called the “link tax” and the “upload filter” respectively by detractors. They have been polarizing enough to lead big names to come down on both sides of the debate. However, the directive passed this week nonetheless included amended versions of the two articles. The measure will face a final vote in January, but is considered likely to pass.
While the spirt of the measure, protecting the rights of content creators, is long overdue, critics have pointed out many legitimate problems with the bill, some of which risk irrevocably altering the internet as we know it. More clarity and user protections should be built into the measure before it becomes law.
Article 11 implements a link tax aiming to help publishers earn a fair share when a news aggregator such as Google News or Facebook links to their articles. The news publishers will have the right to ask for a paid license when their stories are shared on such platforms. Opponents take issue with the likelihood that smaller publishers, which can’t afford to offer lower rates, will be shut out in favor large publishers. They also point to ambiguities in how the law will be applied. While the law says that the rights for publishers “shall not prevent legitimate private and non-commercial use of press publications by individual users,” opponents say it’s unclear where these lines will be drawn, and whether bloggers or a Facebook page with a large following, for example, would face the link tax.
Furthermore, there are ambiguities surrounding what qualifies as sharing a story in a way that can be taxed. While the measure clearly exempts simple hyperlinks or “individual words,” it doesn’t specify how many words it takes to be considered taxable.
A similar law passed in Spain in 2014 led to Google News being shut down entirely there, while local aggregators that couldn’t afford the tax folded. Traffic declined 15 percent overall. Critics worry Article 11 could have a similar effect on a much larger scale.
European parliament member Julia Reda, of Germany’s Pirate party, called the measure “catastrophic,” arguing that sharing a link that includes the title of a news article could require a license.
Unsurprisingly, Europe’s largest news agencies strongly favor the measure as a way to regain some profits that have shifted to aggregators like Google.
Article 13 has proven even more controversial. It stipulates that platforms “storing and giving access to large amounts of works and other subject-matter uploaded by their users” are accountable for copyright violations by their users, calling on the platforms to take action to address these violations. Critics say this will require an upload filter on sites like Facebook and YouTube, checking every item shared by users for copyright infringement. Software like this would be inevitably make mistakes and could also be abused by copyright trolls. Critics say this will stifle memes, while supporters argue that other laws make these, and other parodies, exempt.
As Reda explained to The Verge, however:
“There are two problems with this. The first is that exceptions or limitations to copyright on a European level [are] different from country to country, and a lot of countries do not have exceptions for memes, for example. The second problem is that even where memes are legal, upload filters would not be capable of distinguishing between them and infringing material.”
In other words, the technology simply isn’t available to do the job properly, and the damage from mistakes might be worse than from no attempt at all.
Yet, supporters argue that Article 13 is a vital measure to give content creators credit for their work and help them negotiate proper royalties.
Helen Smith, executive chair of Impala, a European independent music industry group, said:
“This is a great day for Europe’s creators. The parliament has sent a clear message that copyright needs to be modernized to clarify obligations of platforms with regard to the creative works they distribute.”
On one side are internet giants like Silicon Valley companies, and names like Wikipedia founder Jimmy Wales (Wikipedia shut down in some countries in protest). On the other are artists and other content creators such as Paul McCartney and Adele. Perhaps the reason it is so polarizing is that the intended purpose of the law is long overdue, yet the execution has left important questions of enforcement alarmingly ambiguous. Before the measure becomes law, the parliament should address concerns from critics by specifying how it will be applied. And if the technology isn’t there to enforce the measure without serious mistakes that create other problems for legitimate users, it may be unrealistic to expect platforms to police their users fairly and effectively.