The European Union is on the brink of handing even more power to a handful of giant American tech companies, in exchange for a temporary profit-sharing arrangements with a handful of giant European entertainment companies — at the expense of mass censorship and an even weaker bargaining position for working European artists.

It’s been more than four months since EU parliamentary negotiators and representatives of Europe’s national governments disappeared behind closed doors to make the new Copyright in the Single Digital Market Directive ready for a vote. Despite all that time and all that blissful solitude, they have not managed it.



The Directive has the same problems it’s had from the start: 

  • Article 11: A proposal to make platforms pay for linking to news sites by creating a non-waivable right to license any links from for-profit services (where those links include more than a word or two from the story or its headline). Article 11 fails to define “news sites,” “commercial platforms” and “links,” which invites 28 European nations to create 28 mutually exclusive, contradictory licensing regimes. Additionally, the fact that the “linking right” can’t be waived means that open-access, public-interest, nonprofit and Creative Commons news sites can’t opt out of the system.
  • Article 13: A proposal to end the appearance of unlicensed copyrighted works on big user-generated content platforms, even for an instant. Initially, this included an explicit mandate to develop “filters” that would examine every social media posting by everyone in the world and check whether it matched entries in an open, crowdsourced database of supposedly copyrighted materials. In its current form, the rule says that filters “should be avoided” but does not explain how billions of social media posts, videos, audio files, and blog posts should be monitored for infringement without automated filtering systems.

In both cases, the EU proposals may result in some small transfers from America’s Big Tech companies to Europe’s copyright industries — German newspaper families, the EU divisions of global record labels — but at a terrible cost. 

Take Article 11: the rule allows newspapers to decide who can link to them, and to charge whatever they think the market can bear for those links. While it’s unlikely that Europe’s news giants will forbid each other from linking to their articles, the same can’t be said for the established news giants and the upstart, critical press. Small, independent press outlets can be blocked altogether from linking to established news sources — even for the purposes of criticism and commentary — or they could be charged much more than their counterparts in the mainstream. 

And while Google and Facebook will regret the loss of a few million euros they will have to pay the major news services, it’s nothing compared the long-run benefit of tech giants never having to worry about a Made-in-the-EU upstart growing to challenge them. These little guys don’t have the millions to spend that US Big Tech does.

Article 11 gets the independent sector coming and going: not only will they have to pay to link to the mainstream press, they won’t be able to allow others to link freely to their own news. The rules set out by Article 11 state that the public-interest, crowdfunding, open access and Creative Commons news-sites can no longer allow anyone to link to them: instead, they must negotiate a linking license with each commercial site and collect fees in every case. 

Article 13 is even worse. Though the current draft says that “filters are to be avoided,” it also is designed to guarantee that filters will be required. The past three months have been spent adding a laundry-list of impenetrable, contradictory, incoherent clauses insisting that some theoretically perfect technology to filter hundreds of billions of communications and sort them into “infringing” and “not infringing” is can be legislated into existence (it can’t). 

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. 

The EU is selling Big Tech a very cheap ticket to a guarantee of continued Internet dominance. Without competition, they only need fear each other. 

Meanwhile, as the number of tech companies controlling access to the Internet dwindles, their power will grow. The ability of independent artists to and production companies to negotiate fair deals will steadily weaken, allowing Big Tech and the big entertainment companies to command an ever-larger slice of the product of creators’ labours. 

Of course, the vast majority of Europeans are not in the entertainment industry and only a tiny minority of the Internet’s uses are entertainment-oriented. Article 13 will hold the Internet usage of 500 million Europeans to ransom in a harebrained scheme to eke out tiny gains in artists’ livings, and in the meantime, the censoring filters of Article 13 will churn out the same useless, error-prone judgments that have come to epitomise algorithmic discrimination in the 21st Century 

It’s not too late: the European Council — made up of representatives from EU member states like Sweden — will soon vote on the Directive. Their decision will shape future of the Internet, possibly for generations to come. We need Swedes to act, to tell their representatives to strike a blow for fairness and against market concentration and censorship.



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