Copyright and EU
The impact of Brexit on civil and digital rights: Part 1
Introduction
One of the Pirate Party UK’s original goals was to achieve reform around Copyright, Patents, and Trademarks. As members of the EU we adopt rules based on EU directives, such as the EU Copyright Directive. In theory, these directives will no longer apply to the UK after March 29, but this article examines how Brexit may or may not impact our relationship with Copyright and the EU.
Update: On the 26th of March, the EU Copyright Directive was approved by the European Parliament with Articles 11 and 13 included, though moved to Articles 15 and 17 respectively. The EU Copyright Directive was then approved by the Council on the 15th April. The member states now have a two year implementation period to form national legislation to implement this Directive. The Pirate Party recommends that anyone concerned with these articles use the upcoming European Parliament elections as an opportunity to voice their displeasure, and back candidates that support amending or repealing these articles.
EU Copyright Directive — Article 11
“The Link Tax”
What is it?
The “Link Tax” is a 20 year new form of copyright on excerpts of journalistic content, requiring that any site that hosts a link featuring an excerpt, or “snippet”, of an article first seek a license to display it. This seems to be primarily aimed at cracking down on Google’s rich snippet search results and Open Graph tags (code developed by Facebook that powers most of the embed snippets on the internet, which appears as a small preview box when a link is shared). The likelihood is publishers will want to use this to charge sites for linking to their content, in particular social/search giants like Facebook, Google, and Twitter. Similar attempts have been made in Belgium, Germany and Spain to impose fees or take legal action against news aggregation services such as Google News, all with a demonstrably negative effect on digital publishers.
It is also unclear how willing the tech giants would be to pay this kind of levy. In the past, Google has refused to pay for licensing fees (Germany) and withdrawn its news service altogether (Spain) rather than comply with fines and copyright fees imposed by legislators. A potentially more straightforward alternative would be to disable rich snippets instead, perhaps on a per-region basis so that users in the EU would receive bare links on any given search results page with no snippets of page content. However, this would make it harder to evaluate the trustworthiness of a link at first glance. Ironically, targeting snippets in links would likely damage the potential additional traffic links would otherwise bring to publishers — requiring them to spend considerably more on advertising to make up the shortfall.
What’s the latest?
On 18th January 2019, a planned approval meeting for the EU Copyright Directive was cancelled as national governments failed to agree on a common position on Articles 11 and 13, the Directive’s two most controversial articles. 11 EU member states voted against the proposed text of the Directive, and the Romanian Council presidency is now faced with the task of drafting a new text that can win over a qualified majority.
How will it, as proposed, affect the UK?
It is unclear how the UK will be affected by the current text. Within the EU, the legislation means that major websites sharing rich links to journalistic content will likely be required to license the snippet content. Such sites may opt to forego snippets and supply bare links, decreasing the quality of web content.
Outside the EU, unless another major market adopts similar legislation, it’s entirely possible sites will restrict this as best they can to European visitors if they don’t want to stump up for licensing, meaning a post-Brexit Britain may be largely unaffected by this legislation. Per region modifications to websites is a strategy we’ve seen from many companies, especially in the US, as a response to EU passing the General Data Protection Regulations (GDPR), and in some cases this has resulted in EU-based users being blocked outright or served an inferior version of the same content.
However, it’s currently unclear how this legislation would be implemented in a technical sense, and how web service providers would choose to respond to it.
What do we do now?
Follow campaigns fighting against Article 11 and Article 13. They have information about getting in touch with your representatives. You can also contact all of your MEPs using WriteToThem and urge them to vote down both articles in their current form in the next European Parliament session.
EU Copyright Directive — Article 13
Upload filters
What is it?
Article 13 establishes a requirement for businesses using User Generated Content (UGC) to ensure that works uploaded by users are actually theirs to upload, and not the copyrighted works of others.
Proponents of this Article suggest that this should be proactive and achievable via technological means. This would mean that any website seeking to host and distribute UGC would be required to check that it wasn’t unlicensed copyrighted work before it wasuploaded. On the face of it, this sounds reasonable, but existing systems for checking this only really work well with simple data like text, and some audio. Detecting partial copyright infringement in video or imagery is a heavy computing task that would probably be beyond the means of most companies. Likewise, such systems would probably also block content that is in fact protected under fair use (otherwise known as fair dealing) doctrines, because it’s even harder to determine whether the content you think is unlicensed copyrighted content is actually being used in a legal manner.
The technical implications of these blocks means that it is likely only giants like Google and probably Facebook who will have a hope of actually implementing these filters (and they will work just as badly as Youtube’s current Content ID does), whereas other large providers such as Vimeo and Flickr and the like will struggle to find a way to continue trading inside the EU. It may be the case that the EU will have to extend its definition of large hosting provider to essentially cover every company other than Facebook and Google to ensure that their competition is unaffected and kept in business.
What’s the latest?
As with Article 11, the fate of Article 13 is now in question as the current text of the EU Copyright Directive has been voted down, and may be amended. While the Copyright Directive is by no means defeated, Julia Reda, MEP and member of the Pirate Party Germany, has noted that this turn of events makes it “less likely” that the Directive will pass before the European Elections in May.
How will it, as proposed, affect the UK?
Any large UGC hosting provider that trades in the EU will be subject to this legislation. One the one hand it would mean that most companies trading with the EU would be forced to scan and then block all unlicensed content for all users, including UK users. Assuming the UK leaves the EU and does not adopt these provisions of the Copyright Directive before it leaves, UK startups built around monetising or providing services for UGC may be forced to avoid trading within the EU in order to avoid creating expensive content filters.
The EU may be able to mitigate the impact of this legislation for companies by providing reference filter implementations (either a provided code library or a set of technical standards the EU determines would comply with the legislation), but even if these are provided (and it’s unlikely they will be) the Pirate Party is doubtful that said filters would be sufficiently well built to ensure minimal false positives.
The current UK government, for its part, has suggested that it supports and would implement some version of Article 13 in the event of Brexit, but to its credit does claim to want to ensure that freedom of expression is protected.
What do we do now?
Follow campaigns fighting against Article 11 and Article 13. They have information about getting in touch with your representatives. You can also contact all of your MEPs using WriteToThem and urge them to vote down both articles in their current form in the next European Parliament session
Other relevant EU copyright legislation
Copyright Directive — Article 3
This article covers text and data mining. The intention is to include an exemption to copyright for the activity of mining text and data, but the exemption is only applied to academic research institutions. Unfortunately this means that EU startups will not be able to benefit from these activities, and other groups such as investigative journalists will not be protected for the same activities. It’s not clear how Brexit will affect the UK, as the UK may decide to expand those exemptions for UK-based sites to cover other activities such as journalism, but the UK may still have to respect EU rules on EU-based sites as part of any future trade agreement
Freedom of Panorama
Freedom of Panorama is an optional copyright exemption throughout the EU. Some states (including the UK) have provisions to exempt the appearance of public buildings from copyright. This means that photographers may freely include public buildings in their photographs or other visual works without license. Many EU countries decide not to apply this exemption, meaning that several countries containing EU buildings are covered by copyright, preventing them from being included in photographs without a license.
This was considered for inclusion in the Copyright Directive, but was rejected, so it is likely the status quo will remain in the EU for a while longer. Because we already apply this exemption in the UK, this will likely not change with Brexit. However, travellers to EU countries will need to continue to be aware of that state’s particular rules around Freedom of Panorama if they are intending to visually document their trip.
Open Access
The EU’s Horizon 2020 programme intends for all publicly funded programmes to be released in Open Access journals so that publicly funded research is made available to all. Whilst we are a few years from seeing this programme bear fruit, it represents a landmark piece of progressive copyright reform that will hopefully prove the case that relinquishing control over information does in fact increase innovation, and that state support can provide the compensation that would otherwise have been provided by copyright licensing fees.
Summary
In summary, the EU is considering and has already implemented some fairly regressive copyright laws, many of which the Pirate Party would like to see scrapped or repealed. The UK will not escape the full effects of the EU’s Copyright Directive after Brexit as this legislation will no doubt impact any business attempting to trade with the EU.
However, a probable outcome of Brexit is that the UK will lose out on EU science funding, which includes the progressive Horizon 2020 programme that would bring UK science into the public domain as Open Access work. If this comes to pass, the Pirate Party will advocate for the UK government to launch an equivalent programme following our departure from the EU, that will ensure publicly funded research is made freely available to anyone wishing to build on or benefit from it.
About Pirate Party UK
The Pirate Party in the UK is a fledgling political party. It has fielded candidates in European and National elections, but like most small parties it is significantly constrained by the UK electoral system. Despite this, the Pirate Party has started to poll alongside major parties and is looking to build support from the grassroots. The party stood 10 candidates in the June 2017 General Election and briefly held 2 community councillors.
Find out more about the UK Pirate Party on our website or contact campaigns@pirateparty.org.uk
Resources
For further reading, see:
Julia Reda MEP’s pages on EU copyright reform
Julia Reda MEP on Article 11 (the “Link Tax”)
Save the Link campaign
