the new gatekeepers

EU copyright proposal has free speech advocates worried

June 19, 2018

It hasn’t been that long since the European Union caused upheaval on the internet with the launch of the GDPR or General Data Protection Regulation, which brought in a host of cumbersome rules on how consumer data should be protected. Now, some internet activists and free-speech advocates are warning that the EU could take an even larger step in the wrong direction with a proposed copyright law that is up for a vote later this week. If passed, the law could give platforms like Google and Facebook unprecedented power to remove content on the basis that it might be infringing on copyright.

The law in question is Article 13 of the proposed Directive for Copyright in the Digital Single Market, and it would require any internet service that hosts content to proactively filter uploads in order to remove copyright infringement. A letter opposing the law was released last week by a group of internet luminaries including Ethernet inventor Vint Cerf, world wide web inventor Sir Tim Berners-Lee, Wikipedia co-founder Jimmy Wales, net neutrality expert Tim Wu, Internet Archive founder Brewster Kahle and Mozilla Project co-founder Mitchell Baker. The letter says:

By requiring Internet platforms to perform automatic filtering all of the content that their users upload, Article 13 takes an unprecedented step towards the transformation of the Internet from an open platform for sharing and innovation, into a tool for the automated surveillance and control of its users. The damage that this may do to the free and open Internet as we know it is hard to predict, but in our opinions could be substantial.

The European market currently follows a “notice and takedown” copyright system, in much the same way that the US does. In the US, the Digital Millennium Copyright Act gives platforms and content providers a certain amount of immunity (known as “safe harbor”) for hosting content that might infringe on copyright, provided they act immediately to remove it if infringement is brought to their attention. The proposed EU law would replace notice and takedown with a requirement to remove any infringement before it ever goes online.

One risk of this approach is that service providers will remove content that doesn’t infringe because they are afraid of contravening the law. So, for example, they might block a “meme” that uses a copyrighted image to make fun of something, even though that kind of use is typically allowed under “fair use” rules (known as “fair dealing” in the UK and a number of other countries). The signatories of the letter also argue that the cost of this new filtering approach will hit smaller internet services harder, since larger platforms like Google and Facebook will have more than enough resources to comply.

The filtering/censorship risk isn’t the only downside of the proposed law. It also includes a “link tax,” which would give copyright holders to ability to charge online platforms or providers for using even short snippets of text from a work such as a news article. Germany and several other countries have been working on variations of this idea as a way of charging Google and Facebook for taking their content, but critics of the law say its real impact could be a crippling of the internet’s inherent power to link to original source material.

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The proposed law goes to a vote by the European Union’s legislative committee on June 20. They could decide to include Article 13, Article 11 (the link tax) or both, or they could decide to include neither one. Judging by one ranking of the potential votes of committee members, however, it looks as though the filtering proposal will almost certainly pass, and the link tax appears to be close. And that could change the way the internet works—in the EU at least—on a fairly fundamental level.

Mathew Ingram is CJR’s chief digital writer. Previously, he was a senior writer with Fortune magazine. He has written about the intersection between media and technology since the earliest days of the commercial internet. His writing has been published in the Washington Post and the Financial Times as well as by Reuters and Bloomberg.