Stop Articles 11 and 13

On the 21st March, 2019 I closed down my website in protest against the proposed EU Copyright Directive for the day. For the day, the only page available on my site was this one.

The directive is supposed to bring copyright into the 21st century as part of the EU's "Digital Market" strategy.

It does nothing like that. It seems designed more to protect the interests of 20th-century businesses and business models that don't want to compete in the modern world.

In particular, there are two articles in the Directive that pose serious threats to how the internet works. They are Articles 13 and 11.

Article 13

This requires internet service providers to ensure that its users are not infringing on the copyrights of 3rd parties. As a goal, this is problematic on its own1. However, the rules that the directive applies are really, really bad. Chief among them are the following

  • All sites2 must seek licences from all copyright holders in anticipation of any work being posted on their site.
  • If a site receives notice that a user-uploaded work is infringing on a copyright or if a site can't secure such blanket licences, then the site will have to take all possible measures to pre-emptively stop infringing works being uploaded by users. The only way this can be done is by means of expensive (and largely ineffective) automatic filters.

However, there is no firm language anywhere in the article outlining the protections for sites working within this law. Nor is there any firm language covering abusive behaviour, particularly in the areas of fraudulent copyright claims or claims that are pre-empted by the exemptions (e.g. parody, criticism, etc.).

Therefore, all sites operating in the EU will have to decide the extent to which they will have to over-apply the law to minimise the risk of an existence-threatening accusation from a copyright holder. There is no downside to over-applying the law; it doesn't punish filtering or removal of non-infringing works, nor does it protect sites that decide an accusation of infringement is incorrect.

As a result:

  • Some sites will have to shut down due to their inability to purchase or implement upload-filtering3.
  • Other sites may choose to continue to operate but to stop user-uploads (turning off comment sections, etc.)
  • A very small number of sites will be able to invest in such measures, but at the cost of implementing new and innovative features
  • And the large sites that already implement such filtering (notably Google and Facebook) won't be affected all that much.

The irony here is that Google (in the guise of YouTube) and Facebook are cited as the baddies: they disadvantage EU-based operations, it is said, so they must be put back in their place. But these are the operations that are best placed to take on these new rules.

Article 11

This measure requires sites that post links to news organisations to get a licence for doing so.

My mind continues to boggle at the sheer stupidity of this measure…

  • One site linking to another site is the definition of "hyperlinking", and is exactly what the world-wide-web is about. If you don't like it, get off the web.
  • Or… if it's that you don't like search engines indexing your site to make it easier for your readers to find information on it, use the already-in-place technical measures to prevent that from happening (though, ask yourself what you want to prevent from happening: search engines indexing your site or readers easily finding information on it!)4
  • As there is no obligation to buy a licence, sites will just stop linking. There's no "build it and they will come" on the internet: if you don't permit people to link to your site, you won't get the traffic! Don't forget:
    • This was tried in Belgium. It was a total failure.
    • It was tried in Germany. It was a total failure, with news publication sites ultimately offering "free" licences to Google to get its traffic back.
    • Learning the lesson from Germany, Spain tried it, too, and prevented the free-licencing workaround. Google just left Spain altogether, resulting in the smaller newspapers shutting down due to the dramatic loss of traffic.

Article 11 will result in a huge amount of damage to the small players. As Google News is a global operation, it'll hardly notice5.

These concerns aren't new

Nearly 5,000,000 (5 million) people have signed a petition asking that these articles not be made into law.

The inventer of the internet, Vint Cerf, and the inventer of the World Wide Web, Tim Berners-Lee, are among a host of technical experts who have identified to the EU the risks of these measures.

Even the UN Special Rapporteur on freedom of expression has highlighted the damage that will be done to human rights by the directive.

Yet, the EU is pressing ahead. We need to stop this.

Freedom

Ultimately, these are freedom-inhibiting measures. They will gift control of the internet to very large commercial interests, and will place significant barriers in front of new entrants.

As I am particularly interested in how easy it is for single individuals to run their own (legal!!!!!) web sites, I am very concerned about the effect on these sites.

I believe that, in time, I will have to close down my site because these rules will apply to me and – as I don't make any money from them – I won't be able to afford either the technological or operational solutions to minimise my exposure.

Please see the following:

Footnotes:

1
Infringement is a matter for the rights owner and the person that is accused of infringement, and making intermediaries act as copyright police has been shown time and time again as being dangerous and ineffective
2
I don't have a comments facility on this site, so if you want to challenge me with the nuances on my "all sites" assertion, please do so on twitter (I'm @eibhear) so that I can firmly ignore you there.
3
Yes! Upload-filtering is the point. There's just no other way to meet the requirements of the directive
5
Google doesn't advertise on Google News, so shutting down access to EU-based news publications will result in a saving and no loss of income!