The European Parliament will vote on Wednesday on a series of copyright reform proposals that could have far-reaching implications for Internet culture. Two particular provisions have attracted the ire of digital rights groups.
The first reform, known as Article 11, aims to give news publishers a stronger hand in negotiations with Internet platforms like Google and Facebook.
The second controversial reform, known as Article 13, aims to address a longstanding grievance of big content companies: that the current “notice and takedown” regime for copyright enforcement makes it too difficult for copyright holders to police online piracy. Advocates want to shift liability rules to force technology companies to take a more active role in policing their content—a shift that could force more online providers to adopt filtering systems like YouTube’s Content ID.
Critics see both of these changes as attacks on fundamental principles that make the Internet work. They’ve dubbed Article 11 a “link tax” that could get publishers in trouble merely for linking to an article with its headline as the link text. And they point out that systems like Content ID have a history of overzealous takedowns that threaten fair use and free speech rights.
What’s tricky about this debate is that the European Union’s convoluted regulatory process makes it difficult to predict how these proposals would play out in practice. The European Parliament tomorrow will vote on a long list of alternative copyright-reform amendments. Whatever is ultimately approved at the European level will then be sent to dozens of individual member governments who will have to translate its abstract language into concrete legislation.
What’s clear, however, is that both proposals would create chaos in the Internet economy. While the legislation is clearly targeted at Google, the biggest impact could be on smaller sites that suddenly have to negotiate new licenses and set up new filtering systems.
Content ID for everyone
An early draft of Article 13 required that technology platforms engage in “cooperation with rightsholders” to use “content-recognition technologies” or other mechanisms to prevent users from uploading infringing content.
Supporters of this proposal argue that the existing “notice and takedown” regime isn’t working for content creators. Often, creators will issue a takedown notice against an infringing copy of their work only to find another copy has been uploaded a few hours or days later. Publishers want to shift more of the responsibility for policing infringing content onto technology companies themselves, forcing them to respond to bulk takedown requests and to implement technologies for recognizing repeat uploads and banning them altogether.
This is the same basic approach that YouTube took a decade ago with its Content ID system. Content ID scans each uploaded video and compares it to a database of copyrighted works previously provided by rightsholders. If there’s a match, YouTube lets rightsholders choose between blocking the video outright or running ads against the video and keeping some or all of the revenues.
But critics point out that this system is far from perfect. Just last week, we published a piece by a German music professor who ran afoul of content ID after uploading public-domain recordings of classical music written by long-dead musicians like Beethoven, Bartók, Schubert, Puccini, and Wagner. In the past, companies have used Content ID to claim ownership of public domain footage published by NASA.
To address this concern, a leading amendment by Axel Voss, a German MEP aligned with rightsholders, states that “cooperation between online content-service providers and right holders should not lead to preventing the availability of non-infringing works or other protected subject matter.” But the amendment doesn’t offer any real details about to accomplish that—leaving it to individual countries or individual companies to figure it out.
Another potential problem: Google has spent more then $60 million creating the Content ID system. That’s a relatively small expense for a platform of YouTube’s scale, but a smaller site trying to compete with YouTube could obviously need a lot of money. So critics argue that the practical impact of mandating a Content ID-style system across the European Internet would be to entrench the large technology platforms we have today and lock out new competitors.
European news publishers want Google to pay up
The other controversial section of the proposal is Article 11, dubbed by critics as a “link tax.” News publishers have long complained that sites like Google News have built large audiences simply by providing links to news stories written by other people, without sharing their profits with publishers. Article 11 aims to change that by giving news publishers more control over how technology platforms excerpt and link to their articles.
However, what the law would actually prohibit is genuinely unclear. To allay fears that Article 11 would impose an online “link tax,” Voss has proposed an amendment clarifying that the new news publisher rights “shall not extend to mere hyperlinks, which are accompanied by individual words.” But that suggests that, if you have a hyperlink with more than one word—perhaps you link to a news article using the headline as the link text—then you could run afoul of a news publisher’s newly created linking rights.
“It’s really unclear what this is,” says Danny O’Brien, a critic of the law at the Electronic Frontier Foundation.
And O’Brien argues that it’s far from certain that news publishers would actually make money from a new linking right. He points to recent experiences in Germany and Spain, which passed similar legislation at the national level. Google responded to the German legislation by dropping news sites from Google News, agreeing to re-add them only if they agreed to waive these new linking rights. German publishers, starved for Web traffic, quickly agreed to Google’s terms.
Spain then passed a similar law except that this one prohibited Google from asking for free licenses. Google responded by shutting down Google News in Spain altogether, costing the sites traffic.
Of course, the fact that Google was willing to make an example of Spanish publishers by shutting down Google news in Spain doesn’t necessarily mean that Google will be willing to do the same thing across Europe, since that would be a much bigger blow to Google’s business. But O’Brien points out that Google News isn’t actually a big moneymaker for Google. The Google News home page doesn’t even have ads.