The European Community initiative which threatens to break the internet has been passed by the European Parliament. The legislation, which is opposed by such luminaries as Tim Berners-Lee and Jimmy Wales, was voted through by 438 votes to 226, though the controversial Articles 11 and 13 only garnered 393 to 279 and 366 to 297 respectively.
The legislation will now enter tripartite discussions between the Parliament, the EU Commission and the European Council, before returning to Parliament for a final vote, possibly before the end of the year.
The Copyright Directive
The Directive on Copyright in the Single Digital Market will, among other things:
- Outlaw ‘substantial’ quotations from news reports (Article 11)
- Make content platforms responsible for breach of copyright by their users (Article 13)
Article 13, in particular will curtail free speech and creativity on the internet, subjecting users to censorship by platform providers such as Facebook and Google. Making Big Tech companies responsible for enforcement will have a negative effect, causing these companies to err on the side of caution. Users will be subject to arbitrary censorship.
Censorship by machine
Even worse, these companies will employ automated filtering software to do the job. But current algorithms have been shown to be incapable of distinguishing between legal and illegal uses of copyrighted material. Among the activities that could be affected are: research, comment, parody and analysis, though there will be exceptions if host sites are small enough.
MEPs still in the dark
It seems that MEPs still don’t get the way the internet currently works. For instance, MEP Julie Ward has usually proved a reliable ally in the struggle for democracy and justice in international trade, but she has got it wrong about these proposals. In her blog she defends them on the grounds that:
“performers and authors should be fairly remunerated for their work being published online. The copyright legislation has been influenced by a desire to ensure that those who create content are not exploited by online companies. Many MEPs have indicated that ensuring authors and performers are paid fairly for their work would boost the ability for people to earn from their work and increase the quality of creative culture online”
While this is a laudable aim, it neglects the threat to freedom of expression inherent in the proposals. Free speech is more important than copyright and the threatened use of internet content filters risks arbitrary censorship of the very performers, artists and commentators that Julie wishes to protect.
She argues that the legislation will be aimed at large platform providers, such as YouTube and Daily Motion, rather than at the users who post on these platforms. But the Big Tech companies will inevitably pass the pain on their users. If these companies are made liable for user content, they will have little choice but to scan the massive quantities of content uploads with automated filters – for example, there are 400 hours of content uploaded to YouTube every minute – and automated filters are notoriously error prone! This would leave creators unable to publish their original work and forced to enter into long frustrating appeals processes.
Last week, for instance, British pianist James Rhodes was censored for his live performance of Bach, because it sounded like something that Sony Music hold copyright to. His initial appeal was rejected and his subsequent struggle to prove that he had as much right to perform the 300 year old piece as anybody else went viral on Twitter – but MEPs seem to have missed it.
Even more seriously, the Free Software Foundation Europe argues that the legislation is a threat to software developers who share code. Free software development which is responsible for the original creation of the internet itself, would be seriously curtailed if code sharing sites were compelled to employ filters. This would no doubt suit Big Tech corporations like Apple and Microsoft, who find themselves inconvenienced by competition from products such as the Firefox web browser and the free office suite LibreOffice.
But surely, filters can be improved? The International Federation of Library Associations doesn’t appear to think so. In a recent blogpost, they noted:
“To use language from medical research, the number of false negatives (occasions when a filter misses an infringing use) may be low. But this is not the same as ensuring a low number of false positives, where a filter wrongly identifies a legitimate use as infringing.
Moreover, the incentive to reduce this number of false positives will not be high when there no price to pay for preventing legal uploads, but the costs associated with false negatives are significant.”
In other words, filters are likely to become more prone to censoring legitimate content, not less.
Trade Action Blog 