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How Have Europe's Upload Filtering and Link Tax Plans Changed?

February 13, 2018

How Have Europe's Upload Filtering and Link Tax Plans Changed?

Although we have been opposing Europe's misguided link tax and upload filtering proposals ever since they first surfaced in 2016, the proposals haven't been standing still during all that time. In the back and forth between a multiplicity of different Committees of the European Parliament, and two other institutions of the European Union (the European Commission and the Council of the European Union), various amendments have been offered up in an attempt at political compromise. Unfortunately, the point at which these compromises seem to have landed still poses the same problems as before.

What Has Happened with the Link Tax?

Article 11 is its official designation, but "link tax" is a far better informal description of this proposal, which would impose a requirement for Internet platforms to pay money to news publishers for providing links to news articles, accompanied by a short summary of what they are linking to. This isn't a copyright, because the link tax is paid to the publisher rather than the author, and because it is payable even if the portion of the news article taken isn't copyright-protected, falls within a copyright exception, or is freely licensed.

It's unclear why this proposal wasn't abandoned a long time ago. A similar link tax in Spain resulted in the closure of the Spanish version of Google News, a German equivalent has also been deemed a dismal failure, and both small publishers and even a European Commission-funded study have slammed the proposal. Nevertheless as of February 2018, it remains firmly on the table, with virtually nothing to sweeten the thoroughly rotten deal that it offers to Internet platforms and publishers alike.

The most recent attempt at compromise comes in a discussion paper [PDF] from the Bulgarian Council Presidency, prepared as input for a meeting of the Council's Intellectual Property Working Party that was held on February 12. The paper proposes only minor tweaking to the European Commission's original text, such as excluding individual Internet users from liability for the tax, and carving out "individual words or very short excerpts of text" from its scope, but without specifying what "very short excerpts" actually means. 

The discussion paper also briefly acknowledges the alternative proposal of dropping the link tax altogether, and instead addressing publishers' concerns without creating any new copyright-like impost. This alternative proposal would create a legal presumption that news publishers are entitled to enforce the existing copyrights in news articles written by their journalists. If Internet platforms are reproducing such large parts of news articles that permission from the copyright owner is required, this would enable the publishers to negotiate directly with those platforms to license that use. This is the only sensible compromise that can be made to the Article 11 proposal, but it is one that the Bulgarian Presidency unfortunately gives short shrift.

What has Happened with Upload Filtering?

The same discussion paper also tinkers around the edges of the upload filtering mandate, without addressing the fundamental dangers that it continues to pose to freedom of expression online. For those who came in late, the European Commission's initial upload filter proposal,  formally designated as Article 13, would require Internet platforms to put in place costly and ineffective automatic filters to prevent copyright-infringing content from being uploaded by users, creating a kind of robotic censorship regime.

What has changed since then? Not much. The Bulgarian Presidency proposes being slightly more specific about what kinds of online platforms are the target of the measure ("online content sharing services"). It also proposes introducing a new, expansive definition of "communication to the public"; an exclusive right reserved to copyright holders in Europe that had previously only been defined by way of a complicated series of court decisions. By deeming an Internet platform to be engaged in "communication to the public" whenever it allows a user to upload a copyright-protected work for sharing, the Bulgarian Presidency aims to justify excluding that platform from the copyright safe harbor that the existing E-Commerce Directive provides.

The only other change worth noting is that the proposal is now more equivocal about whether Internet platforms would actually have to install automated upload filters, or whether it would be sufficient for them to prevent the uploading of copyright-infringing material in some other way. But as European Digital Rights (EDRi) has cogently pointed out, this is a distinction without a difference.

To comply with Article 13 and to avoid liability under the E-Commerce Directive (per the Bulgarian Presidency's amendment), platforms are required to "take effective measures to prevent the availability on its services of ... unauthorized works or other subject-matter identified by the rightholders," and if such works do nevertheless appear on the platform, must "act expeditiously to remove or disable access to the specific unauthorized work or other subject matter and ... take steps to prevent its future availability."

There is no way in which platforms could possibly comply with this directive other than by agreeing to monitor all of the content they accept, either manually or automatically. By daring not to speak this uncomfortable truth, the Bulgarian Presidency skirts around the fact that such a general monitoring obligation would contravene both Article 14 of the E-Commerce Directive and European human rights law. But that kind of clever circumlocution can't hide the repressive nature of this censorship proposal, and does nothing to improve on the flaws of the original text.

What Can You Do?

The fight against Article 11 and Article 13 is entering its closing days. That makes every voice that we can raise in opposition to these harmful proposals more important than ever before. European voices are best placed to convince European policymakers of the harm that their proposals would wreak upon European businesses and users. Thankfully, our allies in Europe are on the case, and if you are European or have colleagues or friends in Europe, here are the links you need to contact your representatives and speak out against their misguided plans:

  • Mozilla has put together an awesome call-in tool and response guide, which makes it easy to identify your specific concerns as a technologist, creator, innovator, scientist or librarian. You can also read more on Mozilla's site about how all of these category of user, and more, are affected by the Article 11 and Article 13 proposals, along with some of the other more obscure (but still important) provisions of the broader Digital Single Market Directive.
  • A coalition called Create.Refresh have a brilliant, viral campaign that encourages creators to create and share their own works that address the problems inherent in restrictive filtering systems, such as those that Article 13 would effectively mandate.
  • OpenMedia's Save the Link network has updated their click-to-call website this month with a brand new petition on Article 11 that enables you to identify yourself as one of the impacted groups, from a drop down menu on the new page. If you are a librarian, software developer, creator, researcher, or journalist, you'll be able to demonstrate how the link tax proposals are harmful to you specifically.

As you can see, there are many options for you to get involved in this fight—and with the final Committee vote in the European Parliament coming up on March 26-27, now is the best time to do so. If we lose this one, the link tax and upload filtering mandates could be here to stay, and the Internet as we know it will never be the same.

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