The EU Copyright Directive: Winners, Losers, and What Happens Next…

Emanuel Karlsten
Mar 29 · 7 min read

Three days have passed since the Copyright Directive was passed by the European Parliament, and more and more people are beginning to ask: what happens now?

One thing is clear: nothing’s going to be to torn up, even though a whole new parliament is soon to be elected. It’s said that it takes as long to tear up a directive as it does to create one, and it’s taken many years to get to where we are now. Those most critical of the Directive find themselves clutching at straws, like the European Court of Justice maybe rejecting the directive. Or that the Council of Ministers, when meeting in a few weeks to formally approve the decision, will have changed their minds. It’s all a bit unrealistic.

We can therefore conclude that copyright organisations have scored a massive victory, and succeeded in their lobbying work. They managed to establish a narrative that those who criticised the Directive were either reeled in by hysterical propaganda or were puppets of Google. But most of all: that this was a question of either being for or against cultural creators.

The latter point became absolutely crucial.

Among Swedish Social Democrats, this point was what led many to falter. Most clearly, Aleksander Gabelic spoke out sharply over the pressure he experienced from pro-copyright lobbyists. Certainly, he had received thousands of emails from citizens, but the pressure of cultural creators; the nightly conversations implying he was destroying everything for them, rattled him. Gabelic was absolutely convinced that the UN observer for freedom of speech was right in saying the directive was far too great a restriction on freedom of speech, but the pressure he was facing forced him to consider abstaining. He feared how cultural creators would interpret and spin his vote either way. Time and again during our interview, he emphasised that the Directive was not about being for or against cultural creators.

His concern was understandable, since that narrative became dominant.

During the last few days, the intensity of the lobbying was stepped up in Strasbourg. Half of Strasbourg was wearing yellow #yes2copyright sashes ahead of the plenary session. Almost every taxi in the city was emblazoned with yellow motifs, and on the day of voting, specially-made newspapers were stuck to every MEP’s door featuring the call to vote ‘the right way’ for the sake of culture creators.

It was incredibly offensive, well-financed and well-coordinated, more than any grassroots movement or anything from the ‘no’ side.

Gabelic finally voted no, but it wasn’t enough.

If those critical of the Directive are to comfort themselves with anything, it’s that the Directive has nevertheless improved over time. There have been a number of compromises and changes due to the enormous pressure of millions of citizens across Europe — although most critics didn’t think the compromises were enough.

With that said, there’s no point continuing to dwell on the result. More interesting is focusing on what’s happening now.

Firstly, two years of implementation time has now started in the member states, during which the Directive is to become national law. This means that there can be different versions in all countries.

Secondly, what I wrote about last autumn continues: The EU Commission’s proposal to use the filter concept in other areas, such as with terrorist propaganda.

Right now, the proposal is being prepared in the committees of the EU and it will probably be ready for parliamentary decision after the summer. Basically, it’s all about internet conglomerates being made responsible for ensuring terrorist propaganda is removed from online platforms immediately. Sounds good? Sure, but think about how it would be in practice. How is terrorist propaganda defined? Where’s the limit? Nelson Mandela was considered a terrorist in South Africa, so how should the EU find a common, acceptable definition? And how should online giants like Facebook and Google understand the balance? Once again there’s a strong belief in technology, but it’s technology that does not exist.

The proposal also underlines one of the most serious side effects of the newly-adopted Copyright Directive. The idea was to curb the power of online giants by forcing them to pay up or to stop the spread of copyrighted content. But by forcing them to make automated judgments about whether or not content breaks the law, we also crowned them as online society’s police, prosecutor and judge.

If we return to how the Copyright Directive is to be implemented locally: in Sweden, this will mean several practical changes. I have reviewed them in detail in my piece on Article 13, but to summarise:

Not all sites will need to implement filters. Article 2 contains the following definition: “Services whose sole purpose or a main purpose is to store and provide the public with a large number of copyrighted works or other protected articles uploaded by its users, which the provider arranges and markets for profit”.

It’s a deliberately vague definition where all social media could be included, but the idea is to be able to exclude smaller sites like forums, and instead focus on services like YouTube and Facebook.

Recital 66 mentions proportionality for an internet filter. That, when deciding to what extent a company has managed to prevent copyright offences taking place, it should be considered how big the site is, what ‘best industry practice’ is (Google’s recognition filter Content ID, which cost $100m to build), how ‘purposeful’ their actions have been, and how expensive it would be to develop a filter. These formulations are deliberately vague and will surely be used by the sites to test the boundaries of the directive, but since the definitions are outlined in the recitals — not in the articles — these mitigations won’t carry the same weight in court.

Basically, the idea is that the Directive will force online giants to the negotiating table where copyright holders should be able to use the Directive as a threat: “if you don’t negotiate, you’ll have to keep EVERYTHING offline. If you pay up, we can see to it that we look the other way on some other things”.

It can therefore be assumed that the copyright organisations will settle for taking aim at the big beasts, and not hunting down smaller sites. However. The Directive and the Articles are at the same time clear with delimitations and could easily be used even for smaller sites, should anybody want to.

There should not be mass surveillance. Both Article 17.8 and Recital 66 state that neither the Article nor the Directive shall ‘impose on Member States a general obligation to monitor’. In practice, of course, a site must monitor, or filter, if material is to be stopped. The wording is a kind of disclaimer and compromise at the same time; now the EU has at least made it clear that monitoring is not the purpose of the Directive.

We get a new ‘court’. Another interesting morsel that can be found in Recitals 70 and 79, but also partly Article 21, is the establishment of an impartial body for ‘dispute resolution’ that should not be charged to ordinary authorities.

“Member States should also ensure that users have access to trial dispute resolution procedures out of court”. (70)

Here’s where everyone should be able to turn if they think a site has removed too much, or removed something without proper justification. Also, if you want to claim your copyright, and insist your image should not be distributed online. It should also ensure that satire and criticism are not filtered.

How this will work out will be different in each country, and very interesting to follow.

They now have two years to go (but it will almost certainly take at least a little longer).

Clearly, we haven’t seen or heard the last of this. Swedish parliamentarians have already been writing to the government, demanding answers, and it’s surely going to be used as a political weapon in the upcoming EU elections. The debate on how to implement the directive will surely follow, as will the EU’s attempts to try to further regulate the internet and use the online giants to access more criminal activity.

This balancing act will be very difficult, and could play a part in creating a future that can feel a little unpleasant.

For my part, all this talk about the EU and the “Critical Internet Vote” is over for now. I will continue to report on the issues in other forms and on other platforms, but this will be the last piece I write on behalf of the readers who financed this journalistic journey through Kickstarter.

Thank you for reading, commenting and making the reporting what it was. It’s been quoted and shared throughout Europe and Sweden, and has hopefully helped shed some light on everything that’s happened in the European Parliament this week.

Thank you.

Photo credit: Herman Caroan, CC BY

This piece is funded by a Kickstarter campaign to monitor the European Parliament’s Copyright Directive proposal during its final stage of voting. Text and images are supplied under CC BY, a license that makes it free to share and redistribute wherever you want, provided you link back here with appropriate credit.

Read the original post in Swedish.

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Emanuel Karlsten

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Swedish journalist travelling to the European parliament to cover the final copyright directive vote. Everything published on this site is under cc-by-license.