Today members of the European Parliament will hold a crucial vote on new copyright rules that could fundamentally change the internet in Europe. The rules have been described by NGO the Electronic Frontier Foundation as a “censorship machine” of algorithmic filters, while Article 13’s specification that online platforms are directly liable for copyright infringement for uploads by their users has been described by law firm Hogan Lovells as a “complex and potentially onerous set of obligations…” Below, Mozilla’s Raegan MacDonald and Owen Bennett argue that if adopted, the new rules will prove deeply damaging.
Here are the facts as they see them.
FACT: The proposed new EU copyright rules will harm Europe’s open source community.
Mandatory upload filters and copyright licensing provisions in article 13 of the proposed EU copyright law are unworkable for open source software firms like Mozilla and the open source ecosystem generally. The obligations cover all forms of copyright-protected content, including software. Indeed, the cost and legal risk associated with these new rules would push smaller open source software developers out of Europe and threaten the code-sharing platforms (e.g. GitHub) on which they depend to innovate. The fluid nature of technology and software development means that any carve-outs — say for software development platforms — would still risk creating a risk-laden environment.
FACT: The proposed new copyright rules will negatively affect everyday user’s internet experiences.
When internet users want to share a witty meme online, or a home movie in which background music is audible, or even a photo of themselves wearing a t-shirt with an album cover printed on it, they may well find that their favourite online service blocks the content upload. Internet services of all sizes will be forced to implement automatic filtering technology, likely suppressing anything that looks like it might be infringing copyright, irrespective of whether the user has a right or permission to use the content. Given the crucial role the internet plays in citizens’ everyday lives, the impact on creativity, communication, and free expression from such blanket filtering would be palpable.
FACT: The proposed new copyright rules will lead to direct surveillance of users’ activities online.
Article 13 demands that online services build or buy specific technology to monitor and categorise each and every user upload. At a time when the EU is showing global leadership on privacy and data protection, it is deeply regrettable that lawmakers are nonetheless seeking to codify a regime that would compel service providers to monitor European internet users’ activity with even more vigour.
FACT: The proposed new copyright rules will negatively impact independent creators.
Article 13 will be used to restrict the freedom of expression and creative potential of independent artists who depend upon online services to directly reach their audience and bypass the rigidities and limitations of the commercial content industry.
Sadly, the fight over this legislation has been construed as giant rightsholders versus giant online platforms. But in reality, the true victims will be creators and fans themselves. There’s a bitter irony at play: the directors, actors, songwriters, and artists who benefit from the viral sharing of their creations are now pitted against their fans, who in fact do some of the most efficient online marketing artists can hope for.
FACT: Smaller online services – and not giant platforms – will be hit hardest by the new rules
In addition to its impact on user experience, this law will have another, more insidious impact: it will further entrench the power of the biggest online platforms. Only a handful of the largest tech companies have the technical and financial means to operate the sprawling filtering systems that this law demands. Ironically, the companies at which this law is aimed are already filtering content — and so will have a competitive advantage vis-a-vis their smaller rivals and startups, who will need to invest heavily to comply with the law. In addition, the biggest platforms also have the resources and clout to mount legal defences when larger corporate rightsholders seek to suppress legal content. This is not an option for smaller players who will face a high-stakes game of legal risk.
This piece first appeared on Mozilla’s blog here