This month, the EU is seeking to finalise the Copyright in the Single Digital Market Directive, and there’s little hope hope that they would improve or delete Articles 11 and 13, which have the power to crush small European tech startups, concentrating power in the hands of American Big Tech, while exposing half a billion Europeans to mass, unaccountable algorithmic censorship.


Write to Germany's EU Negotiators and say No to Article 13 and 11

We had hoped that the EU and national government negotiators would delete Article 13, the “censorship machines” rule that requires online platforms to hand their users’ videos, texts, audio and images to black-box machine learning filters that would unilaterally decide whether these infringed copyright and thus whether they would be censored or allowed to be published.

Instead, the current text goes to enormous lengths to obscure its mandate for AI filters. The new language says that filters “should be” avoided, and that companies can escape liability if they use “best practices” to fight infringement. But the rule also says that the limitation of liability doesn’t apply where there is “economic harm”—meaning that a user has any commercial content—and it also requires “notice and staydown,” which means that once a platform has been notified that a given file infringes copyright, it must prevent all of its users from ever posting that content again.

Thus, Article 13 can only be satisfied with filters—filters like the ones that Tumblr has been using in a disastrous attempt to block adult material. Article 13’s filters will have to process vastly more materials, in every format, and they will not fare better.

And since Article 13 penalises companies that allow a user to infringe copyright, but does not penalise companies that overblock and censor their users, it’s obvious what the outcome will be.

Building Article 13’s filters is likely to cost hundreds of millions of euros, a price that only the biggest US firms can afford and none of Europe’s companies can bear. The exemption that allows firms with less than 20 million euros in annual turnover to avoid the filters is irrelevant: if these companies are to challenge the US giants, they will have to grow, and they can’t grow past 20 million euro businesses if that means finding hundreds of millions of euros to comply with Article 13.

Article 11, the rule banning links without a license, is also bad news for small businesses already struggling with abuse by the US ad platforms. While the giant newspapers will be able to afford to link to one another after Article 11 is law, these smaller news entities will have to find cash they don’t have to pay for these licenses, and nothing in Article 11 requires newspapers to sell licenses to them at any price, let alone at a fair price in line with the sums paid by the other establishment news entities. To make things worse, Article 11 has no opt-out: every news company must charge for links, and so the burgeoning world of Creative Commons, nonprofit, public interest news sites is snuffed out at the stroke of a pen.

Germany has a contradictory relationship to the new Directive. Article 11 is the brainchild of Germany’s old newspaper families, and the Directive’s staunchest supporter is German MEP Axel Voss. But at the same time, the official national German position has been to oppose Articles 11 and 13, and another German MEP, Julia Reda, has led the charge against the worst aspects of the Directive.

Germans have a special role to play here: with your MEPs and your newspaper giants driving so much of the agenda, and with a vote coming soon it is vital that you act now!



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