This week, after years of deliberating, the European Parliament voted ‘yes’ (348 to 274) on the controversial Copyright Reform.
On Monday, I was indifferent to this. Today, after spending hours of reading and research on the topic, I can say that Tuesday was a dark day for internet freedom.
But why? What’s so wrong with the EU Copyright Reform? Is it really THAT bad?
Yes. Two key pieces of legislation inside the Copyright Reform (Article 11 and Article 13) can change the European internet as you know it.
Article 11, or 'The Link Tax'
Article 11: Anyone using snippets of journalistic online content must first get a license from the publisher. This new right for publishers would apply for 20 years after publication. Article 11 states that anyone using snippets of journalistic online content will need to get a license for it and pay the publisher.
Those automatic link previews Twitter generates you see when you share links (showing the article headline, a thumbnail picture, and a short excerpt)?
The Sun will charge Twitter to enable their snippets.That would require a license, which means Twitter would need to buy those rights in advance.
Oh, but there’s more.
Article 11 could affect anything from Slack link embeds to Google News—which would now be required to license and pay for those few sentences of text you see whenever you open Chrome on your phone.
The Commission is pushing Article 11 to generate income for European publishers. By allowing them to charge internet platforms for displaying snippets of their content to users, they hope publishers can recoup some of the revenue they’ve lost these last few years due to the growth of other ad platforms.
In theory, this is a sound idea – publishers should be rewarded for content creation in some shape or form.
Right? Let’s see.
The unintended consequences of Article 11
First of all, publishers are already being rewarded by social networks – social networks drive 25.6% of traffic to publications.
In other words, this is just a money grab from big (failing) publishers to stay afloat. They want the advertising benefit of all that traffic, plus money on the side.
They are so desperate, that they are ruthlessly ignoring the fact that Article 11 will backfire. I guess that’s what happens when you begin to drown - you try anything to save yourself.
You don’t have to believe me though.
Article 11 has already been tried (and failed spectacularly)
In 2013, Germany (with lobbying led by publishing giant Axel Springer) passed the “Ancillary Copyright” Law, forcing Internet content providers to pay fees, collected by a central clearinghouse, to publishers for displaying their content.
As a result, most platforms killed snippets. Roughly a year later, referrals to Springer properties such as Bild plummeted by as much as 80% and the publishers quickly retreated. A consortium of 200 companies asked for snippets back because the loss of traffic from the disappearance of these elements could lead them “to go bankrupt.”
Spain tried to follow Germany with equally disastrous consequences. Spanish publishers, including newspaper group AEDE, tried to turn Google into a source of mandatory licensing revenue through an ill-conceived copyright law.
Legislators then came up with an even tougher version of the law that forced publishers to demand ancillary copyright fees from news aggregators, whether they wanted to or not (and smaller publishers, needing Google’s traffic, really did not want to).
Google shut down Google News, and the law “clearly had a negative impact on visibility and access to information in Spain”. A study found that in the short term the law will cost publishers €~10 million, which would fall disproportionately on smaller publishers.
Killing Google News
As a response to Article 11, Google could kill Google News in all of Europe. But perhaps this is what big publishers want.
Taxing links destroys the current business model of most aggregators and news apps, which level the playing field for small startups and independent publishers by facilitating distribution.
Big companies have big budgets, inflated marketing teams, and time. Small startups don’t. So if you kill aggregators, you cripple innovation and build a bigger moat around big publishers.
Making market entry and competition more difficult for new businesses is bad in any sector, but particularly true in news, where the rise of fake news and increasingly uninterested consumers is making the market is ripe for innovation.
The market will get more concentrated. News, less diverse. This will reduce the free flow of information because if you add friction to a process such as publishing or creating content, you’ll watch the instances of that event crumble.
It will reduce users, force platforms to negotiate or shutdown snippets and bloggers who usually use this will produce less. Information will more and more be distributed by the same handful of companies.
You think this would only affect Google News? What's insane about article 11 is their definition “snippets” is incredibly broad. Snippets are so poorly defined that this could, theoretically, affect bloggers, newsletters, YouTube creators and everyone in between.
It is SO BAD that some news publishers (who stand to profit from this) are crying for this not to be applied:
“An attack on innovation” … “unhelpful, counterproductive and not in the interest of all publishers” … “bad for competition, media pluralism and for internet users” … “Serious negative effects on the quality of the press, freedom of opinion and freedom of expression” – European Innovative Media Publishers
Char.gd puts it better than I ever could:
“It's a draconian law designed by publishers that don't understand the internet.”
Article 13 and Content Filters
Article 13: Internet platforms hosting “large amounts” of user-uploaded content must monitor user behaviour and filter their contributions to identify and prevent copyright infringement.
Right now, Soundcloud hosts millions of songs. Once any rightsholder of a song asks the Berlin-based company to look out for one of their works, they must start monitoring and scanning all future uploads to make sure that song is never uploaded to their service.
Article 13 is born out of the Commission’s desire to strengthen the music industry in negotiations with YouTube. The industry believes that the revenue YouTube shares with them should be higher, as compared to payments from subscription services like Spotify.
How will this play out? Well, it’s going to be a hell of a ride.
Article 13 means that content platforms will responsible (and liable for) monitoring copyright for protected content.
Naturally, they will want to pre-protect their asses. So big tech companies will need to implement incredibly sophisticated content upload filters to prevent copyrighted material they don’t have a license for from being uploaded in the first place.
The problem is this technology doesn’t exist. MacDonald, Senior Policy Manager and EU Principal at Mozilla, explained to TNW that this is an impossible request.
“Even Content ID — YouTube’s automated filtering that they have made themselves with cutting edge machine learning technology and have honed and improved over the last 11 years — is still utterly imperfect. It’s still incredibly flawed when it comes to perfectly detecting copyright infringement.”
YouTube, the pioneer in the field (Alphabet has spent more than $100 million building a copyright-detection system that’s used by more than 9,000 broadcasters, movie studios and record labels worldwide), admittedly couldn’t handle the Christchurch incident and recognized the technology is incredibly prone to error.
Speaking of Youtube, who actually stands to gain from this because they will license their filtering technology (If all platforms need upload filters, Google is ideally placed to sell them.)
Despite that, they are fighting against it because it can change internet dynamics for ever.
YouTube said in a statement that Article 13 could have “unintended consequences that may harm Europe’s creative and digital economy”.
Making user uploads harder means that only huge platforms will have the resources to let users comment or share content. The biggest companies, which have an army of lawyers and are able to bear some legal risk, will be the only able to run these type of platforms.
Remember the moat around big publishers I mentioned earlier? Article 13 just made it even bigger. Huge businesses such as these publishers AND aggregators like social networks are the only ones who stand to gain. This change will leave the common user with fewer platforms to choose from and crippled prospects for innovation.
While ostensibly aimed at fixing copyright, many are worried that Article 13 will completely change how we share information online and make it much harder for small sites to compete with tech giants.
Splitting the internet into three
Until now, we’ve been accustomed to a completely open internet. Unless you went to China, you could access 99.9% of the internet from anywhere.
As Casey Newton and Owen Williams pointed out before me, this will fragment the internet into three disjointed versions of itself: the American internet, the European internet, and the Chinese internet.
This choice will likely damage internet users and small startups, build a bigger moat around tech companies (something the EU doesn’t want to do) and will backfire for publishers and music labels.
Publishers think they will be able to “promptly march to the courts to extract fines whenever anyone online wanders over its fuzzy lines.”
As with the Warren piece, I'll ask: who is on the right side of history?