With a crucial vote taking place on 5 July in the European Parliament, over 145 organisations representing human, privacy, civil rights and media freedom organisations, start-ups, software developers, publishers, creators, journalists, radios, libraries, higher education and research institutions call upon the European Parliament to vote against the Legal Affairs (JURI) Committee mandate to negotiate on the copyright reform with the Council.
On 2 July, over 145 organisations sent this open letter [PDF] on the EU copyright reform to the Members of the European Parliament ahead of the 5 July plenary vote on the JURI mandate which was granted on 20 June. During this vote, the European Parliament plenary will have to endorse or not the mandate granted to Rapporteur MEP Axel Voss by the Legal Affairs Committee (JURI) to enter into trilogue negotiations on the copyright reform with the Council. They repeat and amplify the voices raised previously to express their deep concerns about the artificial sense of urgency created by certain stakeholders to quickly come to an agreement on a very sensitive and controversial dossier. As aptly summarized by Wikimedia in a 29 June blog post, ‘We oppose this EU copyright package because of its detrimental effects on [I]nternet freedom, access to knowledge, and collaboration online’.
This rush is especially harmful as:
The collateral damage inherent to the vague and poorly drafted provisions adopted in the JURI Committee have been highlighted by a broad spectrum of European stakeholders and experts, including academics, educators, NGOs representing human rights and media freedom, software developers and startups (see, amongst others, the Statement of 29 June 2018 by academics: ‘The copyright Directive: Misinformation and Independent Enquiry’, the Open Letter of 11 June 2018 by 70+ Internet Luminaries, the blog post of 19 June 2018 by French privacy-friendly search engine Qwant ‘Protecting copyright with robots: a risk for fundamental rights and freedoms’ and the blog post of 12 June 2018 by Paul Sieminski from Automattic, the company that created WordPress: ‘We’re Against Bots, Filtering, and the EU’s New Copyright Directive’); and,
The JURI vote has completely disregarded the much more balanced compromises reached in other Committees especially on the highly controversial Article 13, for which the Internal Market and Consumer Committee (IMCO) held a joint competence.
As pointed out previously, the draft on the table represents a huge gap between stated intentions and the damage that the text will actually achieve:
Article 13 (user uploads) creates a direct liability regime for a vast area of online platforms that negates the E-commerce Directive, which will entail the putting in place of filters with a high likelihood of over blocking practices, to avoid incurring such liability.
Article 11 (press publisher’s right) solely focusses on creating a publisher rights despite the many voices opposing such a right and highlighting it flaws, and despite a reasonable alternative proposed by the initial Rapporteur to create a “presumption of transfer of rights”.
The interaction of these two articles has not even been the subject of a single discussion. The filters of Article 13 will cover the snippets of Article 11 whilst the limitations of Article 3 will be amplified by the rights created through Article 11, yet none of these aspects have even been assessed.
Article 3 (text and data mining) cannot be limited in terms of scope of beneficiaries or purposes if the EU wants to be at the forefront of research and innovations such as artificial intelligence.
Next week, the European Parliament will hold an important vote on the Copyright Directive. It will decide whether or not it needs to be amended significantly, or can be sent straight to the final negotiations, the so-called “trilogues”, where only minor changes are likely. The stakes are high. The copyright industry is close to succeeding in its efforts to muzzle its hated enemy, the open Internet. If Article 13 is adopted in its present form, it would change online life in the EU dramatically, and not for the better.
The lobbying around Thursday’s vote is becoming intense. The main supporters of the Copyright Directive, including the Rapporteur Axel Voss, have sent an email to all their fellow MEPs (available from Politico), lamenting the “unprecedented spam campaign flooding our inboxes regarding the Copyright Reform.” Evidently worried by some of the points raised by emails “flooding” inboxes, the missive continues: “we thought it wise to explain why all these spam emails are factually incorrect and do not reflect the actual text on Articles 11 and 13 that were voted for in JURI Committee.”
Astonishingly, that “explanation” repeats all the old errors and misinformation. For example, it insists that Article 13 “will not filter the internet”, yet the email to the MEPs goes on to say: “specific copyright protected content will be identified on the basis of information provided by the artists to the platforms (digital fingerprint)”, which is precisely how filters work.
Just a few days before the email was sent out, a senior member of the JURI Committee, Jean-Marie Cavada, even went so far as to tweet triumphantly about the inclusion of upload filters (original in French, shown above), along the lines of: “#CopyrightDirective: creation of a neighbouring right and automatic filtering of online content, a big step forward!”. They may not all say it in public, but everyone in JURI must know that Article 13 will require filtering, with all the negative consequences this inevitably entails.
In other words, it is the MEPs’ letter that is “factually incorrect”, not the emails criticising the Copyright Directive. However, here I do not intend to go through all the other statements that are being used to mislead MEPs. I’ve already addressed many of those issues previously on CopyBuzz, and there is also an excellent new line-by-line explanation of what the final text of Article 13 really means, put together by EDRi.
Instead, I want to address a larger issue that the email to MEPs raises: the use of the word “spam”. For ordinary citizens, the sending of emails via special sites set up for that purpose is often the only practical way they have of making their voices heard. Indeed, for many it represents an unprecedented advance beyond their usual passive role in the political process. The democratic engagement it shows is something that should be celebrated, not condemned. If anything, it’s a reflection of the failure of the EU to provide better channels for people to express their views on topics they feel strongly about. We’ve already noted on CopyBuzz that the formal EU consultations are inherently biased against the general public. No wonder that citizens turn to sites that make it easy for them to join the debate.
There’s clearly a general problem that the EU needs to address here. But as far as the Copyright Directive is concerned, the email from the pro-Article 13 MEPs provides an opportunity. One of its assertions is that “the campaign we are under does not originate from genuinely concerned citizens”. If tens of thousands of EU citizens can write emails to EU representatives in their own words, then MEPs will have to take them seriously, and listen to the concerns of their constituents. The SaveYourInternet site makes it easy to email, call or tweet to your MEPs. As well as using your own words for your message, please try to come up with your own subject line too in order to prevent emails being sent straight to the spam bucket. That’s been good practice for years, but it’s particularly important for this correspondence.
And if you are wondering whether it is worth even trying at such a late stage, remember this. Six years ago, a piece of legislation called the Anti-Counterfeiting Trade Agreement (ACTA), which like Article 13 would have caused serious harm the Internet, was rejected by the European Parliament, in large part thanks to a massive email campaign by ordinary citizens. We did it then, we can do it now.
The computer experts are unanimous. The only way to implement Article 13‘s requirements is through a general filter of every user upload. The fact that the word “filter” is studiously avoided in the Copyright Directive’s text makes no difference to this unavoidable fact of digital life. After all, how would it be possible to make sure that no uploaded file contains copyright material unless every one were checked beforehand? The volume of uploads for major platforms is such that manual inspection is out of the question, which means filtering has to be automated. Since that is now clear to (almost) everyone, the argument around Article 13 has moved on to the practical implications of requiring top sites to install censorship machines for user-uploaded content.
One class of material particularly at risk involves memes. These are often topical ideas that take pre-existing texts, music, images, and videos, and use them with varying degrees of cleverness to make a witty comment or a political point. The vast majority of memes are likely to be blocked by Article 13’s upload filters, since a key feature of them is the use and subversion of other copyright material.
Few would argue that annihilating the Internet’s meme culture would be a good thing – memes may vary in their tastefulness, but they are undeniably a powerful and characteristic expression of 21st-century creativity. As a result, defenders of Article 13’s blanket filters have been forced to take another tack. Now, the argument is that memes won’t be caught by upload filters, because they are covered by exceptions to copyright that allow precisely this kind of parodic use. But there are a number of serious flaws in this line of reasoning.
First, it is not true that memes are covered by exceptions to copyright across the whole of the EU, an important fact the European Commission seems unaware of. There is no blanket “fair use” doctrine, as in the US, that would create a presumption that memes are to be excluded from filtering. Instead, Article 5 of the 2001 Directive on the “harmonisation of certain aspects of copyright and related rights in the information society” says that “Member States may provide for exceptions or limitations”, including “for the purpose of caricature, parody or pastiche”. Potentially, that would seem to cover memes.
However, the crucial word here is “may”: Member States have the option, but not the obligation, to grant an exception for uses that include memes. Only a minority of EU countries have taken advantage of that freedom. Germany and eighteen other Member States still have no parody exception, and thus none for memes either.
What this will mean in practice is that Article 13’s upload filters would need to encapsulate local laws when it comes to deciding whether or not to block material across the EU. And it’s not just local laws. A ruling by the EU’s highest court suggested that local standards of taste were also a factor in determining whether a parody was a legitimate use of copyright material. EU-wide upload filters already face an incredibly challenging task of deciding when material is covered by one of the existing exceptions to copyright, something that even courts struggle with. Add in the requirement that account must also be taken of local laws and sensibilities, and the job of implementing this correctly becomes impossible.
It is clear what is likely to happen. Because of the legal risks of not doing so, companies using upload filters will always err on the side of caution, and pro-actively block anything that might conceivably be infringing. As a result of the different rules in different Member States, the easiest option will be to apply the harshest national constraints across the whole of the EU, which means blocking all parodies and memes if they use any existing copyright material.
That situation will inevitably lead to huge quantities of perfectly legal material being censored. In the US, memes are frequent targets of takedown notices under the Digital Millennium Copyright Act. Existing upload filters already overblock, sometimes removing entire YouTube channels in error. In Germany, a video created by the feminist organisation Pinkstinks was blocked by Google’s ContentID filter for an alleged copyright infringement of material from the broadcaster RTL. In fact, it was not Pinkstinks who used content from RTL, but RTL who had used the organisation’s content in a broadcast without noting the source. The ContentID system assumed that Pinkstinks, not RTL, was in the wrong, and incorrectly blocked legal material. With Article 13 in place, assumptions that uploaders are guilty until proven innocent will become the rule.
Supporters of Article 13 insist that this, too, isn’t really a problem, because the online services will be obliged by the Copyright Directive to put back material that is wrongly blocked in this way. Once again, this reasoning is fallacious. The Pinkstinks experience demonstrates why that is the case. The video in question was part of a campaign by the organisation, and much of its impact depended on being timely. Even though the video was put back after eight hours, a crucial window for influencing people had been lost. This is a general problem, because memes are often extremely topical, and short-lived. They frequently refer to events in today’s news, and without that context, lose much of their power and point. Unblocking this kind of material after hours or days of invisibility may mean that it falls completely flat, or even is irrelevant. For many memes, time is of the essence.
Even for those memes with a longer shelf-life, the fact that people will need to challenge the blocking of their uploaded material will have a chilling effect on the whole culture. One of the great strengths of memes is that they can easily created by ordinary people, with no need for complex technical resources or prior artistic skill. Memes are the ultimate in democratic art. But members of the public are precisely those who are least likely to know how to challenge upload filter blocks, or even to be aware that this is possible.
Many will simply accept the result of the upload filtering, either because they don’t know that they can challenge it, or they don’t have the time and energy to do so. They may be so disheartened to find their attempts at memes are blocked repeatedly that they give up crafting them. The overall result will be an impoverishment of what can be considered an important new digital folk art. The Internet in the EU will be the poorer for it, and freedom of expression of European citizens will be seriously curtailed.
Breezy claims that Article 13 will not affect the Internet’s meme culture are untrue. There is no blanket exemption across the EU for meme-like material. Even where the exemption exists, implementing faithfully the local laws and standards in upload filters will be impossible. This will lead to overblocking of legal material. The much-vaunted “safety clause” is illusory. Most people will be unable or unwilling to go through the daunting process of appealing against the blocking of their creations. And for the few that are determined to get their material online, the delay in posting their memes may mean that they lose most or even all of their force.
The harm it will cause to memes is not the only reason to remove Article 13 from the Copyright Directive – many other domains will be adversely affected, as CopyBuzz has previously noted – but it is certainly a very good one.
As one would expect, the intense coverage by serious news outlets of the dangers of the Copyright Directive over the past weeks, with the ‘threat to the meme’ as tagline exemplifying the fact that Article 13 has a far reaching impact stretching into the absurd, has triggered the rightholders camp to spread out their own version of the ‘legal status’ of memes under Article 13. Kudos to the fact that they used an infographic and to the creativity they displayed in dismantling everything everyone ever said about Article 13. Such great effort certainly merits some scrutiny on our part.
The best way to influence a discussion is to put the conclusion you want your reader to reach at the top. In this case, the conclusion this graphic is aiming for, is to disprove everything academics and experts have written so far and to lure you into believing ‘everything will be fine’ in an EU that adopts Article 13. In the process, it nicely highlights that memes can consist of images, videos of excerpts of texts, which is not unimportant, as we will see further down.
So memes are ok because there are exceptions on parody and quotation that would cover them?
The exceptions mentioned as safeguards are voluntary in each Member State. As a result: they have in some cases not been transposed at all, and in others transposed in very different ways.
For example, the parody exception was only transposed in the UK in 2014 and is still not transposed properly in 19 Member States (including Germany). Its interpretation also varies from country to country (is political parody ok or not? Should it be funny? – cf. CJEU Deckmyn case). The depth of the mess in interpreting the parody exception was beautifully summarized in four tweets by the European Commission: read them and weep.
Similarly, the quotation exception has been implemented in varied ways from one Member State to another, as it is limited to text in many countries (i.e. not audio or audiovisual), and in some countries limited in scope (e.g. in Germany, quotations are only allowed if done in the context of commenting or criticizing what you quote, e.g. in a research paper or a blog on a given subject, not for memes). Not unimportant considering the variety of formats memes can come under.
This means that memes are often already illegal in many EU Member States currently, but that this has not lead to massive enforcement by rightholders under the current notice & take down procedure set in place by the e-Commerce Directive. There have been quite some take downs in the US however under the Digital Millenium Copyright Act, some of which are listed here.
But look: the good news is that only a few platforms will be covered…
Oh, wait a minute: doesn’t that contradict the fact that even the Rapporteur MEP Axel Voss admitted that he had no clue which platform will actually fall under this Article? And isn’t the extent of the scope illustrated by the continuous addition of half-defined carve outs they have been continuously adding (e.g. encyclopedia because not Wikipedia; online retailers because not eBay; open source platforms because not Github…oh wait they’re not all open source…hmmm).
And then we haven’t even talked about entrusting all of this to blind algorithms, that block anything that looks like existing works or other subject matters.
The claims that there is a ‘safety clause’ and that platforms will have to reinstate content that was wrongfully blocked forgets to explain how complex and uncertain this procedure will be for the users. Moreover, it neglects the fact that the majority of the users will not be aware of their rights, and will thus not ask for their content to reinstated in the first place, or simply won’t bother and will stop sharing that type of content. My teenagers at home would certainly not bother!
It also ignores the fact that there is a risk of losing the momentum for your content. A good illustration can be found in this Zeit Online article, which writes about the case of the feminist organization Pinkstinks: one of their videos was automatically suspended by ContentID for an alleged copyright infringement of material from RTL, even though it was not Pinkstinks who had used content from RTL, but RTL who actually used their content in a broadcast without marking the source. The video, which was a crucial part of a recent campaign by Pinkstinks, was offline for 8 hours due to this, making them lose the viral effect it had initially flown on.
Ah, but you see, the system is already flawed today: look at the mistakes ContentID makes!
Yes, exactly. And maybe we should curb and frame those excesses instead of encouraging them at a larger Internet-scale? Maybe that is what we should have been talking about, as well as a User-generated content exception that is fit for purpose in the 21st century? Not extending faulty censorship machines in the hands of private corporations?
OK, so now you’ve officially offended the God of memes and everyone’s intelligence in the process. That deserves a meme:
Alongside threats from the upload filter (Article 13), the snippet tax (Article 11), and the limits on text and data mining (Article 3), there’s another part of the proposed Copyright Directive that has serious problems. Article 4 covers “Use of works and other subject-matter in digital and cross-border teaching activities”, and calls for a copyright exception for certain kinds of educational use. Although that is welcome, there are issues with the details of the proposal. For example, the Lifelong Learning Platform, a Europe-wide umbrella organisation active in the areas of education, training and youth, is concerned that non-formal and informal learning would be unable to make use of the exception. The group’s President, David Lopez, explains why the draft text of the Copyright Directive’s Article 4 needs to be revised.
GM: Could you please introduce yourself and your organisation a little – its history and its aims?
DL: My name is David Lopez and I am President of the Lifelong Learning Platform (LLLP) which is a network of over 41 European organisations active in the field of education, training and youth, coming from all over Europe and beyond. We stand for a truly holistic approach to education, which can be seen in in our membership: we have adult education, vocational education and training (VET), youth organisations, volunteers, scouts, sports organisations, university, schools, teachers, parents, early-childhood, covering the full spectrum of education sectors and age groups.
These networks represent more than 50,000 educational institutions and associations in formal, non-formal and informal learning. Their members reach out to several millions of beneficiaries. Since it was established in 2005, LLLP’s mission has been to voice citizens’ concerns on lifelong learning issues towards the EU institutions and promote more complementarity between all types of learning – formal, non-formal and informal. For us, education is really the key to foster equity, social cohesion and active citizenship.
GM: How does copyright pose a problem for lifelong learning – for example, outside formal educational establishments?
DL: Copyright has always been a contentious issue in formal education but the implications go beyond schools and universities to affect organisations such as libraries, museums, community centres and civil society organisations including NGOs, youth and student organisations. The professionals and volunteers working in such organisations are also providing education through free courses, peer-to-peer or community learning.
The problem is that in many countries the copyright exemption for education only applies to schools or other formal educational establishments. So, in order to comply with the law, other organisations providing education are in fact required to seek permission before making certain use of copyright-protected material in their educational programmes. These provisions severely limit the pool of resources to which these educators have access – as easily accessible sources on the Internet are often still copyright-protected and cannot be used in practice.
Hence, the burden to the work of teachers and educators of all types is considerable – they have to figure out whether a specific resource is copyright-protected or not, whom to contact for permission, wait for a response, see if any costs will be involved, etc., or face anxiety for being fined should they choose to bypass copyright. This situation, with the limits that it puts on the learning experience, contradicts the imperative to provide a high quality provision of education and lifelong lifelong in Europe.
GM: Which parts of the proposed EU Copyright Directive particularly concern you and your organisation, and why? What are the problems?
DL: Article 4 of the Copyright Directive pertaining to the mandatory exception for education is of major concern for LLLP and its members. The proposal grants the exception only to formal education establishments, which is an outdated approach given that the future of learning lies in accessing it anytime, anywhere and delivered in a variety of spaces beyond the classroom.
Moreover, the provision for licensing schemes – overriding the education exception – that the proposal allows Member States to set in place, creates a dangerous precedent because it will cause further uncertainty for educators, not to mention potentially unaffordable costs. Many educational institutions, both formal and non-formal such as NGOs, adult learning centres or other small community-based organisations, are ill placed to negotiate a licence contract or are not even able to consider the possibility of purchasing a licence due to limited resources.
A further problem is the potential implications for the cross-border exchange of educational resources. The proposal would restrict access to materials to a “secure electronic environment” to which only the students and teachers of the specific educational establishment would have access. This goes against the reality that many teachers are constantly and very gladly sharing their own materials with their peers from other institutions and in other European countries.
GM: What would you like to see happen with those parts?
DL: Article 4 needs to be re-thought from the perspective of how it can serve as an enabler, not a barrier to high quality education. We would therefore prefer to see a comprehensive exception that applies to the educational purpose underpinning the use of copyright-protected material, rather than the type of user providing the education; that covers both digital and non-digital educational activities; that cannot be superseded by licensing arrangements; and that also supports the cross-border exchange of educational materials.
GM: What do you think might happen in the EU lifelong learning field if these problems aren’t resolved?
DL: I am afraid that it will lead to more frustration and uncertainty for teachers and educators and, worst of all, contribute to the growing trend of commercialising the learning experience. Education in all its forms is a public good and the proposed Directive risks to undermine that.
GM: Any other comments?
DL: Just to conclude by stressing again that in the copyright debate EU policymakers need to recognise the nature of education and lifelong learning in the 21st century – the fact that it occurs across borders, across a variety of spaces and is provided by a diverse range of actors. The new directive should adapt to that reality, balancing the rights of copyright owners with the public interest of helping education in all its diversity to move forwards, not backwards.
Éva Simon is Advocacy Officer at the Civil Liberties Union for Europe (Liberties), a relatively new non-governmental organisation (NGO) promoting the civil liberties of citizens in the EU. Liberties is built on a network of national NGOs working in this field from across the EU. Currently, it has member organisations in Belgium, Bulgaria, the Czech Republic, Croatia, Estonia, Hungary, Italy, Lithuania, Poland, Romania, Spain, Sweden, the Netherlands, United Kingdom and an associated partner in Germany. Its aim is to include NGOs from all 28 EU countries. The interview took place at the ‘Humans Of Copyright – Real Life Stories‘ event in March 2018.
GM: Could you please introduce yourself and your organisation?
ES: My name is Éva Simon, and I am working for Liberties, which is a Berlin-based human rights organisation. This is an umbrella organisation: we have 60 members, all over the European Union in the member states, and we are focussing on human rights issues among others – freedom of expression and privacy issues. Our main focus is policy making at the EU level, but we also deal with public education issues.
GM: To what extent does copyright pose a problem for freedom of expression?
ES: It seems that the new draft Copyright Directive endangers fundamental rights – human rights, and especially freedom of expression. What we can see here is the draft Copyright Directive imposes an obligation on certain online platforms to filter user-generated content. That’s an issue which tells us that at the EU level fundamental rights are not taken seriously enough, even though from history we know that if freedom of expression, or other fundamental rights such as privacy, and data protection, are not taken seriously, there are serious consequences.
GM: What kind of thing do you have in mind?
ES: If we look back to the Data Retention Directive, the human rights scene protested against it, and we kept saying that it was breaching privacy and the fundamental rights. The EU legislators didn’t take into account our arguments, and finally it ended up at the European Court of Justice. The European Court of Justice declared that the Directive was violating the EU Charter of Fundamental Rights [and struck it down as a result].
So this is what happens if something is passed at the EU level. At the member states’ level it will be challenged, it will go to court. It’s very time consuming, people’s fundamental rights will be violated, but in the end we can rely on the European Court of Justice [to address the underlying issues]. And we hope that in these cases at least the Court will say something [about the legality of the upload filtering]. However, it would be much better to avoid these traps and have the proper evaluation of how fundamental rights are affected by draft legislation.
What we can see here is that instead of taking into account the citizens’ interests and fundamental rights, it just seems that the Copyright Directive is more likely based on commitments towards big companies that lobby effectively at the EU level. Instead of focussing on citizens as well and other rights such as copyright, it’s not really balanced. The real problem is that there are two different types of right that we can see at stake: [people’s] freedom of expression, and privacy. Not only their freedom of expression will be limited, but also they will be monitored, so their privacy will be breached.
On the one hand there are fundamental rights, and on the other hand there are the copyrights. And these two types of rights should be in balance, but these are imbalanced at the moment – fundamental rights are not taken seriously enough. Instead, it’s more like the copyright the EU is focussing on. And that’s a huge problem.
GM: So what would you like to see happen to Article 13?
ES: Just get rid of this article. Copyright is properly protected in other parts of the Copyright Directive, there is no need to impose this extra obligation on Internet platforms. I’m not saying there are no other problems within the Copyright Directive, such as Article 11. But if you think about Article 13, the solution is not to carve out certain services, but it’s just to delete [it].
On 20-21 June, the European Parliament will vote on the Copyright Directive. Should Article 13 of the Copyright Directive proposal be adopted, it will impose widespread censorship of all the content you share online. Members of the parliament are the only ones that can stand in the way of bad copyright legislation. Tell them you need them to protect your Internet against surveillance and censorship machines! For more info, check https://saveyourinternet.eu
Email your MEP
On 7 June, over 100 Members of the European Parliament (MEPs), from different political groups, addressed an open letter to MEP Axel Voss (EPP, Germany), the lead Rapporteur on the Directive on Copyright in the Digital Single Market for the Legal Affairs (JURI) Committee, to:
express their concerns about the negative impact the press publishers’ right would have on access to news and information; and,
urge MEP Voss to delete the press publishers’ right proposed under Article 11 in favour of “alternative, less invasive, and more proportionate solution to support quality journalism and freedom of the press in the digital age”.
shot down: by over 200 European copyright legal and academic experts arguing that it:
“would likely impede the free flow of information that is of vital importance to democracy”
“would be likely to harm journalists”
“exacerbate[s] existing power asymmetries in media markets that already suffer from worrying levels of concentration in many Member States.”
questioned: by a an independent study [PDF] conducted for the European Parliament’s JURI Committee (our full story on it), which noted that it’s “doubtful that the proposed right will do much to secure a sustainable press” (p. 37) and who consider that “the evidence does not support a new right” (p. 40); and,
rejected: by several MEPs, who tabled amendments calling for the deletion of Article 11, or suggesting to replace it with “a less invasive, more proportionate legal solution to the historical challenges faced by European publishers, journalists and freelancers”.
Read more on VoxScientia.eu about how Article 11 would impact the future of knowledge.
Note: The original French version of this op-ed was first published in Le Monde on 22 May. This op-ed has been translated with the authors permission and is being made available under a CC BY 4.0 license.
Software is everywhere. You use it every day to communicate, at work and for entertainment. Software is essential for managing businesses, for advanced research, for the creation and dissemination of knowledge and arts. Our industries, our societies, our culture and even our lives depend on software which today is part of humanity’s heritage.
But software, the engine of the digital transformation, does not come out of nowhere: it is created by humans who write it in a form known as source code and using programming languages. We, developers of software, are authors: copyright protects the source code of the software we create in the same way it protects music, books or films.
In particular, article 13 of this proposed Directive introduces the obligation, for any platform which permits the sharing of content, to implement automatic content filters. Filters like those that block videos which reuse protected content on YouTube. The stated goal is to prevent the dissemination of works without the permission of creators and thus to guarantee they can ask for payment if they want.
Today, in line with a recent open letter from a 147 European organisations, which we supported, we want to alert Members of the European Parliament and representatives of Member States on the specific threats this proposal creators for free software and for the entire software industry.
Today most software is built using existing components, developed and distributed on open platforms for collaborative development. As Linux, which is at the heart of 80% of mobile phones, there are millions of software programs built by authors who chose to make them open source. This means anyone can read, study, modify, or have others modify, and redistribute the source code, without any restriction or specific permission.
It is estimated that 80% to 90% of modern computer software comes from such reuse, and suppressing any of those components would have unpredictable consequences. In 2016, the deletion of 11 lines of source code broke millions of websites.
As a result, imposing automatic content filters on those open platforms for collaborative development would threaten the current software production process. It would have major impacts on innovation in our industries and on the competitiveness of our economies.
While we understand the worries of certain players in the cultural industries which feel vulnerable in the face of the changes brought by the digital revolution, we must recall that copyright is as much about authors of software as it is about those cultural industry players. This copyright reform must involve consultations with all players concerned by copyright, not just with those in the cultural industries.
We believe it is important to raise the alarm on the threat that the current proposal raises for players in the software industry, and consequently for our entire society. Those threats range from obstacles to the development of new technologies which would result from the blocking of text and data mining (article 3); to the serious obstacle to collaborative software development (article 13) which we analysed in detail here.
This copyright reform has been devised primarily with the interest of cultural industry players in mind and we must avoid major collateral damage from this approach.
A total exclusion of software from the scope of article 13 and the removal of any restrictions to text and data mining (article 3) are an absolute necessity.
Signatories (alphabetical order)
Serge Abiteboul, computer scientist, Inria and ENS Paris, French Academy of Sciences
Pierre Baudracco, President of the programme of the Paris Open Source Summit 2017 and 2018
Laurent Baudart, Secretary General, Syntec Numérique
Roberto Di Cosmo, Director of Software Heritage, Professor of computer science, Inria and University Paris Diderot
Stefane Fermigier, Co-President of CNLL (National Council of Free Software Enterprises)
Philippe Montargès, Co-President of CNLL
Pierre Paradinas, President, French Society for Computer Science , Professor CNAM
Emmanuelle Roux, Associate Director leChaudron.io et Sc21
After weeks of pushing and shoving by the Bulgarian Council Presidency (or should we say by the European Commission), today, 25 May, the Committee of the Permanent Representatives of the Governments of the Member States to the European Union (COREPER) was coerced in agreeing to agree on something in the discussions on the Directive on copyright in the Digital Single Market.
And the result is appalling: every poison that was put on the table by the European Commission got worsened and mixed into a lethal cocktail for EU citizens, institutional players, start-up and big businesses (except for the rightholders) as well as for creators that thrive in the digital environment.
We have repeatedly gone into lengthy details about the (many) flaws of the Council text so now is the time to be short:
this text does not deliver in any way a digital single market;
it creates an unmanageable snippet tax/link tax for the whole of the EU internet; and,
it mandates upload filters that will block content before it ever appears online, under the control of private companies.
The damage is hence done in the Council, under the guidance of a couple of big Member States and the European Commission. A slight positive note is that apparently several Member States, including Germany, voted against. However, not enough of them raised their voice to stop this from happening, which remains a shame.
Caroline De Cock, Coordinator of the Copyright for Creativity (C4C) coalition, concludes that:
A heavy responsibility is now placed on the European Parliament: defending the rights of the millions of citizens, the small entrepreneurs, the creators, the knowledge community professionals, and all the users that go online and ensuring that snippet taxes and censorship machines are not allowed to creep into our lives.