A New Article 13 (of the Copyright Directive)

Tension is high before tomorrow’s vote in the European Parliament on the proposal for a Copyright Directive.

Online activists, including Wikipedia and Mozilla, urge voters to ask their MPs to vote against Article 13 (and 11), which will introduce mandatory filters for uploaded content that will have to scan databases of copyrighted works and not allow copyrighted content to appear. On the other hand, producers’ and authors’ organizations are rallying their stars in support of the controversial texts, wanting to close the so called “value gap” and demanding more money from “the platforms” (mostly YouTube).

Politicians and lobbyists are trying to present this as a dilemma — you can’t possibly be against Article 13 and still support copyright and the creative industry. That way they are labeling all those against as digital talibans and enemies of the authors.

But it is a false dilemma. You don’t have to choose between copyright and the internet. We can have both. We just need to be a bit more clever when legislating (and by “we” I mean, cough, the European Commission, the European Parliament and the Council of the EU).

Let me put things straight — Labels and large organizations of rightholders want a better negotiating position with YouTube. They want to be able to tell YouTube “sign our licensing agreement (with a higher percentage of the ad revenue) or we will not show our content on your platform, and by the way, we’ll sue you if you don’t take it down automatically if it gets uploaded by users”. And this is a fair stance — YouTube has a hugely dominant position and you, as an artist or a producer, don’t have much of a choice not to put stuff on YouTube for free (for the viewers); on the other hand, ad revenue is insufficient to support what rightholders would usually be getting from subscription-based services. And so they want to pressure YouTube for better terms.

And that would have been fine, but along the way they decided to break the internet while settling their disputes.

Now, there’s enough criticism of the Article (although it’s hard to find which exactly is the current version, what are the exceptions, whether platforms are considered to perform communication to the public and are therefore liable before even knowing there’s a copyright infringement and so on). In the past I’ve tried to offer compromise texts in various ways that address the concerns of all sides. Now I’ll do that here. To be honest, the original text by the European Commission is sloppy, so I’ve tried to structure it better.

Here is my proposal (compared to that of the Commission; the one that will get voted as mandate for the trialogue in the Parliament tomorrow is a modified one). Mine is not perfect, but bear with me:

1. Information society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users shall:

(а) take measures to ensure the functioning of agreements concluded with rightholders for the use of their works or other subject-matter;

(b) provide efficient ways for rightholders to identify their works for the purpose of obtaining remuneration, including, but not limited to, the use content recognition technologies. Remuneration should be due for the whole period of availability of the works or other subject-matter;

(c) allow rightholders to efficiently, including through the use of semi-automated means, request the removal or limiting the search of their works uploaded by third parties;

(d) provide rightholders with adequate information on the technical measures used to fulfil the requirements of this paragraph;

(e) provide to the rightholders all data and metadata about all works or other subject matter referred to in this paragraph via automated means, including, but not limited to, the works themselves, access statistics, categorization, and any claim of exceptions and limitations that their users have attached to the work;

(f) publish statistical data about their interaction with rightholders, such as the number of notice and take down requests and the number of complaints and redress referred to in paragraph 2.

2. Member States shall ensure that the service providers and rightholders referred to in paragraph 1 act without prejudice to exceptions and limitations to copyright, to freedom of expression and put in place complaints and redress mechanisms that are available to users in case of disputes over the application of the measures referred to in paragraph 1.

The goals:

• no automated filters
• easier ways for rightholders to identify and report content, potentially semi-automatically or even automatically (e.g. ContentID). But the takedown requests will come after the content is published;
• more transparency for the platforms — they should provide every information they have to rightholders, and some of it — to the public.

Whether this would solve the problems of rightholders — I hope so. Rightholders could decide to completely go away from YouTube and the measures above should allow them to do so by still being able to monetize anything that users upload, for as long as it has been up. But the bigger problem — that users would prefer not to pay for content if they could — remains, and I don’t think anyone can solve that through legislation.

It’s obviously too late for any such changes. But my point, and the reason I wrote this (certainly imperfect) proposal, is to show that we are being sold a false dilemma.

MEPs, when voting tomorrow, make sure at least you realize that — that there is a practical, technically feasible middle ground and you can get to it through more informed debate. And please don’t break the internet.