The Battle for Free Online Sharing

At the beginning of September, the European Parliament approved a long-discussed and very controversial draft directive, which, according to a number of experts, has the potential to “break” the Internet. The draft directive in question covers the copyright in the digital single market, and its Articles 11 and 13 have already been criticized many times.

Among the people who took a stand against the approval of the controversial texts are Vint Cerf, recognised as the creator of the Internet, Sir Tim Berners-Lee, creator of the world wide web, Jimmy Wales, co-founder of Wikipedia, Mitchell Baker, co-founder of Mozilla Firefox browser, Brian Behlendorf, creator of Apache, John Romero, co-founder of id Software, professors and lecturers at Columbia and Harvard Universities, Massachusetts Institute of Technology, pioneers in the software industry, academic minds and free-internet activists. They all agree that the normative document seriously threatens the Internet.

The first discussion in the European Parliament's Chamber on the disputed texts was in June, when the MEPs rejected them with 318 votes against and 278 votes in favour. On 12th September, however, they adopted them in almost the same form, with only minor cosmetic changes.

The Threat

The concerns are that Articles 11 and 13 of the draft directive jeopardize the existence of an open global network based on free information sharing, limit the investments in new technologies on the Old Continent, discourage new start-ups from the region, and delay the development of innovation.

“Today's decision is a serious strike for the free and open internet. By adopting new legal and technical constraints on what we can publish and share online, the European Parliament puts corporate profit over freedom of speech, abandoning long-accepted principles that have turned the Internet into what it is today,” shared the German MEP and a member of the Pirate Party of Germany, Julia Reda after the vote.

Internet Filtering

One of the criticised articles of the new draft directive states that all platforms have to conclude licensing agreements with the companies that hold any copyright (e.g. music, movie, video game publishers, etc.) or, if they do not, to install software, which filters out all the content posted online by recognising and automatically blocking any of it that has unauthorised rights. Simply put, if now YouTube, Facebook, Twitter, forums, etc. allow free publishing of all kind of content and they remove certain files only at the request of right holders, the new draft directive suggests that in the future they should all monitor in real time any uploaded files and automatically ban their publication if there is any doubt about unauthorised rights.

Why Is This a Problem

First of all, it is not clear whether online companies will be able to fulfil this condition. Simply because there are millions of right holders around the world - big and small studios, singers, publishers, etc. If the controversial directive is introduced in its current form, any independent music author, for example, from Indonesia, Mexico or Peru, will be able to sue Google or Facebook if their filters have allowed their work to be published on YouTube and become available on the territory of the European Union. It is hardly within the reach of a corporation, however large it may be, to monitor the entire flow of copyrighted works on the planet. And if Google, Amazon, Facebook, or Netflix could manage to do it, for thousands of smaller online platforms and services, the task would be beyond their abilities. What is more, the proposed text of the draft directive is so broad that if it is adopted, it might also include the activity of many other online businesses.

This means that, if the directive enters into force, it is possible that a huge number of new technology companies from Europe would not be even able to start or would have to terminate their activities.

Thousands of others from the United States, Asia or other regions around the world would be forced to restrict the access to their platforms from the European Union in order not to be affected by the new directive. As a result, the citizens of the Community will certainly suffer. In addition, consumers on the territory of the EU will lose the opportunity to share free content, and even the publication of a non-copyright content will be questioned as software robots will decide which file is subject to unauthorised rights. And machines may not be very precise at this task. It is even possible for the publication of your own Facebook photo to be recognised by the social network algorithms as a violation and for you to get sanctioned.

Link Tax

The other article in the draft directive, which raised many controversies, is Art. 11, which became known as the “link tax”. It was prepared under the influence of several large media publishers from Germany, France and other countries and aims to end the current practice of Google, Facebook and other platforms, which publish media links with a small part of the text of the respective articles (the so called “snippet”). According to some large European publishers, online platforms have to pay for using the small samples in question. Google and other companies have replied many times that by publishing snippet links, they increase the traffic to the media. An argument that is not accepted by a number of publishers.

That is why Article 11 was included in the draft directive, which introduces a new related right that bans the publication of snippets to links if the respective platform has not signed a license agreement with the respective media in advance. The national publishing house of Germany already had a similar case, but then Google just asked the media publishers in the country to provide the right to publish their snippets free of charge, threatening that it will leave only links without a text. And the respective media corporations agreed. What’s interesting is that they are now trying to do the same, but at a European Union level.

The EP is about to enter into final negotiations with the Council for the new EU directive, which means that there is still hope for a meaningful response and changes in the texts. Julia Reda has already urged open Internet supporters to step up their protests in order to increase the chances of rejecting the normative act at its final discussion just before the next European Parliament elections.