Why the recent EU Copyright Law is failure: it has been tried twice before.
Across the world, people have been mocking a new piece of EU legislation which threatens to stifle free speech, suffocate free press, and “ban memes”. It has attracted opposition from Wikipedia founder Jimmy Wales, World Wide Web inventor Tim Berners-Lee, and dozens of other world-renowned tech, law, and journalism experts.
By all accounts, the law could certainly have a chilling effect on journalism, free expression and internet culture as we know it. It will require vast, automated censorship, expensive linking fees which choke out smaller news companies on both the supply and the demand end and restrict the right of data collection to the most powerful and protected organizations. To get these laws passed, internal memos and research have been withheld, votes held behind closed doors, and editors encouraged to “guide” their journalists’ negative coverage. All this is fairly standard stuff – legislatures are not bastions of earnest cooperation – but the effort is puzzling considering the explicit evidence of the failure of the same project twice at a national level. And like so many overreaching political projects in the recent history of the EU, its journey began in Berlin.
Way back in 2009, the German Federal Association of Newspaper Publishers decided that, facing competition from free news sources online, they had to find a way of rescuing their industry. They issued a statement demanding special protection of their rights to the content they hosted. This reached the ears of Angela Merkel, and after two short years, legislation was drafted which legally empowered the newspapers to charge fees for linking to articles online. Soon, Spain followed suit. In Articulo 32.2 de la Reforma de la LPI (Spanish Copyright Act), the Spanish government attempted likewise to protect the profits of the newspapers. But both in Germany and Spain, these laws have had unforeseen and decidedly negative consequences.
The problem that the Act tries to solve, is that news aggregator sites were perceived to be drawing traffic away from traditional news websites, who were already by then suffering under the collapse of print media. Papers were worried that the aggregators, as especially Google, were leading users to simply glance at the “snippets” (an important term in this matter), and skim headlines rather than read articles. The aggregators were however, also sending traffic to them. Aggregators have become an indispensable complement to the press industry. Facebook and Google, as well as Feedly and several smaller sites or apps which aggregate news feeds, have become essential sources of traffic for newspapers. What the press has been objecting to in recent years is, that in addition to the reduction in subscription fees, advertising fees have started drying up. While Facebook shares 70% of its advertising fees with the papers, Google refuses to share a cent. They also freeze out any papers who try to demand a cut, which is what happened to the Francophone Belgian papers in 2006. They were simply dropped form the newsfeeds.
Predictably enough to the experts following such developments, the German papers, fearing a shut-out by Google, refused to exercise their new rights. It turns out that the benefits of being linked to by aggregators like Google, Facebook News, Feedly, and so on, outweigh the opportunity costs of having a portion of people only skim-read the little snippets that sit under the links. The Spanish government decided that the problem was competition for Google’s attention, and so they codified an unwaivable mandatory fee. This means that publishers no longer have the right to give aggregators and search engines free access to their content. The results are pretty conclusive. Smaller papers have been suffocated, and traffic to news in general has fallen. Sponsors of the EU bill, such as German MEP Alex Voss, deem that this “success” must be replicated. Worse, a glance at the voting patterns in the Council shows a strict left/right alignment of the issue, which suggests voting was not based on incisive scrutiny of the details.
This would be merely comical if it weren’t for the inflexibility of continental Civil Law. Common law, as used in the former British Empire, places emphasis on a balance of rights and public good, so that laws which have unfair and unintended consequences can be pruned by judicial oversight. Instead, the civil law tradition of the EU dictates that the only consideration is the privilege or right conferred to rightholders by the legislative authorities. This means that considerations created through commonlaw procedure elsewhere in the world, like “fair use”, which includes the right to review, criticize, quote for the purpose of commentary, remix, etc, are completely irrelevant in the European context. This means that there can be no objections to these laws from any source once they come into effect, unless a new act of parliament overrides it.
The Union level legislation intends to give ancillary rights (also known as “related rights” or droits voisin) to the press companies over access to their content. But in doing so, also holds hosts legally responsible rather than individuals, creating the obligation to remove content before it is published, or else pay the royalties, which most small companies cannot afford. In fact, any content uploaded must be screened for any hint of potential copyright infringement. Algorithm-based copyright strikes have a rather terrible reputation as it is. Users would need permission from the bots on the host site to write or publish any material, on the off chance that it vaguely resembles some piece of intellectual property on the database.
What is more, the wording in the bill refers also to the “snippets” underneath links to newspaper articles. In order to capture the phenomenon, the article refers to quotes of three sentences or less, essentially placing a mandatory fee on the quotation of any text or speech of any person whose utterances are previously published. The fees include any form of link to such copyrighted content, which would in effect make Wikipedia’s business model (for example) untenable. Coupled with the coverage of visual media, and the mandatory use of automated flagging and removal software, this would make the raging about banning memes at least partially justified. This will in practice (given the absence of fair use) prohibit access to vast amounts of online content, and may in fact cause problems for everyday social media use – family snaps that (according to the matching algorithms) sufficiently resemble stock photos are likely to be withheld from publication. What is far more damaging, is the limits it places on access to free software. Because the rights to “fair compensation” are unwaivable, gaining access to free software hosted on any website is likely to requires payment. It would officially impossible to give information away for free if it counts as the intellectual property of the host website.
A further bugbear has been Article 3, which regulates mass data capture and analysis. This would be restricted to “research” organizations, and other specially qualified entities. Data security is a serious concern. Even ten years ago, large scale data breaches occurred once a week. Risk Based Security reported over 5 000 in 2017, with forecasts set to rise exponentially. Critics of the copyright bill claim that it does little to protect security. It may have the effect of consolidating the ability to collect personal information in the same few organizations which already dominate the field, while raising the barriers of entry to legitimate researchers. It also does little to ensure good practices which might prevent breaches, which in fact occur with alarming regularity.
Overall, this legislation has received some rather worthy criticism. It’s aim may have been to protect traditional print media, but the actual effect would be to suffocate them and restrict access, while disrupting the sharing of cultural material and the open-source software world, an enormous source of innovation for one of the most important sectors of the modern economy. While there is an argument to be made that the extension of the protections from a national level to a Union level will bring enough clout to force big players like Google to play ball, it seems unlikely. And even with a successful cure for the ills of the traditional print media, the side effects may just make the patient iller than the disease.