Free speech advocates sound alarm over EU copyright proposal

The European Parliament’s Committee on Legal Affairs is set to vote on a sweeping overhaul of the European Union’s copyright law Wednesday, in the latest chapter of the ongoing fight between European publishers and Big Tech.

But the battle lines are not clear, and the proposal is deeply divisive across Europe. Proponents say it would level the field between copyright holders and online platforms, but critics warn that it would stifle free expression and interfere with the basic functioning of the internet.

The proposal, which would levy fees for quoting online news stories and limit the protections for platforms that host content uploaded by users, is billed as an attempt to narrow what supporters call a “value gap” between the copyright holders and online platforms, such as YouTube, Pinterest, and Google News, that have seen their fortunes rise as they freely distributed copyrighted videos, photographs, and snippets of news stories. 

This could have immediate consequences for American companies that do business in Europe, just as Europe’s sweeping new law on privacy has. It could also influence the shape of copyright laws well outside of European borders if it’s used as a standard to push for reforms elsewhere, including in the United States.

Its supporters include some of the biggest entertainment companies and publishers in Europe, including Germany’s Axel Springer. Opponents say that the law will do little to put more money in the hands of artists and journalists, and that it would serve only to benefit big tech companies.

“This is supposed to be a way to transfer money from Google to German newspaper families,” says writer and activist Cory Doctorow, “but it’s going to absolutely devastate the public discourse that makes Wikipedia legal.”

The 'link tax'

The proposal itself is far-reaching, the most comprehensive revamping of EU copyright law since 2001, before Facebook and YouTube existed. It includes many measures that have widespread support, such as rules to ease restrictions on sharing educational material across borders. But two provisions have generated an outpouring of criticism.

The first, known as Article 11, would establish fees for quoting snippets of online news articles, such as the headlines, photos, and summaries that you might see on Google News or displayed when someone shares a hyperlink on Twitter or Facebook.

Critics of Article 11 have dubbed it a “link tax,” because, even though it does not prohibit hyperlinking itself, it does limit the ways that links can be displayed. They warn that handing control of even small snippets of news stories to publishers would limit the amount of news that people are exposed to. That’s apparently what happened when Spain’s legislature enacted a similar law in 2014: Google News closed in Spain, and a study commissioned by Spanish publishers found that the law damaged their bottom line.

From the perspective of many news publishers, however, Article 11 simply does for the news what other copyright laws do for other kinds of content.

“Article 11 establishes publishers as rights holders, which enables them to better protect their investments online,” says Wout van Wijk, the executive director of News Media Europe, a trade group that represents more than 2,000 print and online titles. “This is a proven concept: other creative industries, like the music and the film industry have successfully enjoyed such a related right for years now.”

Whether it’s the push to protect privacy of its citizens, including the “right to be forgotten” from search engines, to new laws against who is accountable for hate speech on Twitter, to class-action suits against Facebook, Europeans have attempted to rein in the influence of Silicon Valley that transcends their borders. And this copyright battle has been presented as a similar power struggle, says Leonhard Dobusch, a professor of organization at the University of Innsbruck in Austria who is an expert on transnational copyright regulation and a founder of Right2Remix.

“That is how they sell it,” he says. But it’s not a simple power struggle, despite legitimate concerns about the control of American companies in Europe. One of the major backers of Article 11 is German publisher Axel Springer, Europe’s largest digital publishing house, which Professor Dobusch says is playing off of Europe’s “anti-Google and to some extent anti-American sentiment.”

“In a way,” he says, “it’s why a lot of politicians are on board.”

“Honestly I wouldn’t care about it if it was anti-Google,” says Caroline De Cock, coordinator of the Copyright for Creativity coalition which opposes the measure, “because that’s not my job to protect Google. But the reality is that the way it’s written, it applies to a lot of other things like libraries, which I do care about.”

An end to 'safe harbor' protections?

Another controversial provision, Article 13, would limit the “safe harbor” protection enjoyed by sites that allow users to post “large amounts” of content. Current EU law protects platforms like Facebook, SoundCloud, Dailymotion, and Vimeo from users who upload copyrighted content, treating them as a “mere conduit” for the actions of users.

Véronique Desbrosses, the general manager the European Grouping of Societies of Authors and Composers argues that such platforms play an active role in organizing and distributing material.

“They select the content,” says Ms. Desbrosses, who denies that the law would affect Wikipedia. “They promote certain content. They categorize the content. They cannot be considered passive intermediaries.”

If Article 13 goes into effect, platforms would be required not just to remove infringing material from their site, as they are now, but to preemptively block it from appearing in the first place.

This means that sites would need to employ automatic content filters similar to YouTube’s Content ID system, which allows copyright holders to identify their own works and then block or monetize user-uploaded videos that contain their works.

“What the EU commission has proposed is basically to make every other platform more like YouTube,” says Julia Reda, a member of the European Parliament and of Germany’s Pirate Party, which seeks to liberalize copyright. “It is playing into this fantasy that you can somehow use filters to solve all the problems on the internet.”

In 2016, Google, which owns YouTube, said that the company had spent $60 million developing Content ID. Ms. Reda warns that this price tag could stifle smaller online platforms whose names aren’t “Google” and “Facebook.”

“My fear is that if this proposal goes through it will be exactly those large tech companies that are developing the filters that will benefit from it,” Reda says. “But it will not actually help artists and it will certainly curtail freedom of speech online.”

Mr. Doctorow explains how these filters could limit Europeans’ ability to seek and share information. “The only companies that operate these big copyright filters right now are American,” he says. “So really what we’re about to do is create a rule that says that Europeans communications with each other have to be given to an American company for evaluation, and if the American company doesn’t like them, they won’t be allowed to post them.”

Article 13 has drawn battle lines similar to that of Article 11. One of its biggest backers is the French entertainment industry, which maintains powerful connections with France’s political set. France has always fought against what it perceives as the creep of American cultural imperialism, with rules about content that must be French-produced to protect society from the imbalance of Hollywood budgets.

But Dobusch, and many others, say this isn’t the way to take on Big Tech or American culture.

“Copyright law is very complex,” he says. “Previously it was not of importance for ordinary people. So you bought a book, you bought a CD, you were allowed to resell the book, to make copies from it at a copying machine. … Now with the internet everyone gets into contact with copyright law.”

Eoin O'Carroll reported this story from Amherst, Mass., and Sara Miller Llana contributed reporting from Paris. 

[Editor's note: This article has been updated to correct a transcription error in Leonhard Dobusch's final quote.]