The European Union’s Copyright Directive has led a tortured life, even by the standards of EU law. This bundle of legislation, intended to comprehensively update copyright for the internet age, was hotly debated in Parliament and public all last year. But as of the beginning of this month, it seemed to be edging its way toward a final vote.
That is until last Friday, when six countries switched sides during negotiations, booting the proposed directive back into legislative limbo yet again.
Strangely, the points being debated haven’t changed substantially since last year. While most of the Copyright Directive contains commonsense updates to laws written in 2001, there are two regulations that are causing trouble: Articles 11 and 13, which critics have dubbed the “link tax” and “upload filter.”
Article 11 gives publishers the right to charge a fee when platforms like Google or Facebook show snippets of their articles, while Article 13 makes these platforms directly liable for user-uploaded content that infringes copyright. The reason the latter is referred to as the “upload filter” is that it would likely be enforced by scanning content before it’s uploaded. Think of it like YouTube’s Content ID, but preemptively covering most of the internet.
Why did negotiations fail?
Articles 11 and 13 are currently locked into the Copyright Directive itself. The way legislation like this is passed in the EU is that different parts of the government come up with their own versions and then negotiate with member states to create a compromise text that satisfies all parties (theoretically, anyway). Last year, both the Council and the European Parliament approved versions of the text with Articles 11 and 13, which means these proposals aren’t going anywhere. What can change are the details of their implementation.
The current set of negotiations — a three-way discussion between the Council, Parliament, and member states known as “trilogues” — were meant to discuss exactly that. But talks were derailed last week because of disagreements over the exact wording of these articles.
For Article 11, the key question was the definition of a “snippet.” Should it constitute the first paragraph of an article? The headline and opening sentence? Or just any text at all?
For Article 13, the issue was whether all user-generated platforms should be liable for copyright infringement, or if special dispensations should be made for smaller companies (those with revenues of less than €20 million a year, for example).
There’s no qualified majority to reject changes or keep them in
“The Council is in a deadlock because there is no qualified majority for keeping [these changes] in or for taking them out,” Julia Reda, an MEP for the Pirate Party and one of the Copyright Directive’s leading critics, told The Verge. “The result is that the trilogue that was planned for [Monday, January 23rd] was cancelled and we now have to wait for the Council to come up with a new position.”
Prior to Friday’s talks, a minority group of the EU’s 28 member states were fighting for more generous interpretations of these articles. These were Germany, Belgium, the Netherlands, Finland, and Slovenia. But on Friday, they were joined by representatives from Sweden, Croatia, Portugal, Luxembourg, Poland, and Italy, creating a sizable bloc.
What will happen next?
From this point on, the Copyright Directive is drifting into uncharted waters.
If the legislation is going to be accepted into law across the EU (and then implemented by individual member states), it needs to be approved in a plenary vote by the European Parliament. (Yes, that’s right — there’s more voting to be done.)
But, as there is a limited number of plenary sessions this year before EU elections take place in May, time is running out. After the elections, any fragile consensus among MEPs that are established in the next few months could be destroyed as new politicians take office. This could “completely upend the process,” says Cory Doctorow, blogger, activist, and special adviser to the Electronic Frontier Foundation. “Especially given the other kinds of political turmoil roiling EU member-states.”
Changes in EU governments have created problems for the copyright directive
The evidence that this could happen is clear just from the breakdown of talks last week. Part of the reason the negotiations failed on Friday is that Italy switched its position, which was caused by a change in government last year from a more technocratically minded center-left coalition to a populist, center-right coalition.
If the directive is going to reach a plenary vote in whatever form, trilogues need to be resumed and a compromise text needs to be agreed upon quickly. According to Reda, the longer this takes, the less likely it is that the legislation will pass this spring. “If by the beginning of February they have found a new text they will have the final vote,” she says. “But if nothing happens by the end of the month ... the final vote would take place under the next parliament.”
Whether this will happen is anyone’s guess. When The Verge asked the Council whether a new text would be proposed soon, a spokesperson said only that “the Council needs more time to finalize its position” and that there is “no other date for a trilogue yet.”
For those fighting what they say will be the worst effects of the legislation — automated censorship and a stifling of free expression online — recent events do offer some hope. Reda says that if there hadn’t been public outcry, the proposal would already have been adopted. “We still have a possibility to stop Article 11 or 13 or at least remove the most problematic parts,” she says.
A fair result: everyone’s unhappy
For those on the sidelines, removing Article 11 and 13 and coming back to them later does seem like the easy option. Exactly why this hasn’t happened isn’t clear, although most blame the entrenched positions of the entertainment industry, which is refusing to compromise on these articles, despite widespread criticism from academics and activists.
“Why can’t the Directive be adopted without these controversial provisions? The answer is likely that copyright policy is not based on evidence but on horse trading,” Martin Kretschmer, a professor of intellectual property law at the University of Glasgow, tells The Verge. “Provisions favoring one sector, or political interests in one member state, are traded against interests in another country or sector.”
Even some industry lobbyists are backing away from the directive
Another reason is that there has been little stable ground on which a compromise could be built. As well as changes in member states’ positions and in the composition of the European Parliament, industry lobbyists have also flip-flopped.
Big publishers and news outlets are fighting Google for the link tax, but many small publishers have sided with the tech giants. (To them, traffic from news snippets is more important than license fees.) Music and film companies were originally responsible for the inclusion of upload filter, battling platforms like YouTube for it, but many of these rights-holders are now backing away from the filter, worried about the difficulty of enforcing such a measure now that there’s a chance they’ll be partly responsible for its upkeep.
It is, in short, an almighty mess. It’s perhaps exactly what you’d expect when a political organization like the EU, which is built on the principle of compromise, attempts to exert control over an entity like the internet, an ecosystem with as many stakeholders as users. But one thing is clear: the Copyright Directive is still coming, whether it’s welcome or not.
Additional reporting by Russell Brandom
Correction, January 24th, 1:30PM ET: An earlier version of this article reference the European Council when it should have been the Council of the European Union, usually abbreviated as “the Council.” We regret the error.