Interview with Carlo Piana and Stefano Epifani on the European Copyright Directive
The European Union has been working on Copyright reform since September 2016 and seems to have reached an almost final text, adopted by the Committee on Legal Affairs (JURI), which will be voted in the European Parliament this week, on July 5 to be exact, and which, if voted against, will open a debate and a vote to amend the position of JURI during the September plenary session in Strasbourg.
The aim of the text is to protect Copyright and works circulating on the Internet, recognizing a responsibility of platforms for the use of copyrighted content. The controversy generated by the large IT players, such as Google and Facebook, European publishers and record companies, has sparked a broad debate, with Wikipedia Italia obscuring pages and publishing an appeal to stop the directive: if approved, it says, this directive “will significantly harm the openness of the Internet. The directive instead of updating the Copyright laws in Europe and promoting the participation of all citizens to the society of information, threatens online freedom and creates obstacles to accessing the Web, imposing new barriers, filters and restrictions. If the proposal were approved in its current form, it could be impossible to share a news article on social networks, or find it through a search engine. Wikipedia itself would be at risk“.
The reactions, not always supported by a profound knowledge of the provision as Fulvio Sarzana writes, should put different aspects on the balance pan. “A legislation that is too severe and too analogical,” says Sarzana, “appears able to deprive the Internet revolution of the value that is taking place before our eyes: the use of blockchain technology and related progress in the field of direct democracy“.
What does the reform envisage?
The salient (and most debated) points are those contained in the now famous Articles 11 and 13. The first introduces what has been called Link Tax, or the need to provide compensation for authors in the case of use of a link, or rather of a snippet, that is, an excerpt of some lines that anticipates an item of content. The definition as “tax” is erroneous, as pointed out by some jurists, because it is not referable to a tax but to the payment of a right. Article 13 – which introduces the need for filters capable of identifying and blocking the loading of copyrighted content by users – envisages legal liability for digital platforms such as Facebook, Instagram or Youtube.
What are the limits?
“Once again,” stresses Stefano Epifani, president of Digital Transformation Institute, “The devil is in the details. And in the context of an all in all well-written regulation, the details (not really details) are represented by Articles 11 and 13. The Link Tax is, in no uncertain terms, a conceptual folly. The idea that you can tax a link (or its descriptor, in fact) undermines the structure of the internet, and beyond the difficult implementation in its original formulation (and I doubt that someone has the courage to present it in the final version) sets a principle against which a real outcry would be needed.
Paying for a quote is not defending Copyright, but a desperate attempt by a lobby to stop the wind with its hands rather than realizing that the world changes and hopes to stop it with regulatory measures. A bit like the Red Flag Act, which required those entering London by car to be preceded by a person on foot waving a red warning flag. Not to mention Google being accused of having lobbied against this regulation, an accusation that was put forward by the lobby that this regulation generated.
The theme of Article 13 is more complex and thorny because it clashes as usual with the very difficult borderline between copyright and censorship: giving the task of checking the contents of platforms and imposing on them on a rapid resolution of disputes risks becoming a tool of preventive censorship that acts as summary judgment, and we cannot afford to do that.
The risk is that in solving one problem a much, much bigger one is generated, and we must always remember that the freedom we take for granted today literally cost tears and blood: losing it is easy. Reconquering it is much more difficult”.
What new freedoms are being introduced?
“The reform of European legislation on Copyright,” claims Carlo Piana, a jurist with expertise in digital law, “is, on the whole, worthy of attention because it introduces certain freedoms that have long been awaited and already adopted as free use by some European countries (not Italy). I would have liked to have seen freedom of views inserted as one of them, but the amendment on that was rejected, while those approved included those containing the exception for conservation in order to protect historical and cultural assets (cultural heritage), for publication by the same of orphan works (that is, those no longer or never marketed), and for text and data mining (although not in an optimal way)”.
What is the problem related to the introduction of the obligation to filter content subject to Copyright?
“There are,” continues Piana, “very controversial points which radically change European law applicable to online service providers. The main one of these points is Article 13, which requires network operators to filter content subject to copyright, based on information provided by the holders of rights holders and to provide the latter with information on the works that have been disseminated. This obviously clashes with the “no duty to monitor” principle of the e-commerce directive (2001/31/EC), although the compromise amendment states that implementation should not impose a “generalized” duty to monitor contents transmitted or stored. But this is clearly not enough, insofar as a filtering obligation is not a “generalized” duty but a “specific” duty to monitor.
Furthermore, there is the age-old issue of automated checks in the case of free use. This contrasts with the proposal of the second paragraph, which envisages mechanisms for the rapid resolution of disputes, again against service providers. This is a significant responsibility for service providers, which must shoulder a very burdensome mechanism and still be exposed to litigation if the holders of rights deny that there is “free use”. It is not difficult to think that this will in fact lead to the disappearance of free use, except in very few cases.
In the event that they have license agreements with the holders of rights, the providers of sharing platforms will also have to bear the license costs for material uploaded by their users. This is the exact opposite of what is happening today for service providers in the information society. In the case of no license, the filtering of which I have already spoken will have to be introduced”.
And open source platforms?
“On the positive side of the scales,” says Carlo Piana, “at least these expectations should not apply to development platforms, thanks to the new version of Article 2, paragraph 4 (a), which will probably become paragraph 5 in the final version, excluding open source platforms like GitHub, GitLab, Gitorious, BitBucket, non-public sharing platforms (such as DropBox) and marketplaces for physical goods. The same paragraph excludes online encyclopedias (therefore also Wikipedia) from application of the directive.
There is, however, a more subtle problem. By introducing exclusions to the duty to filter, we simply create exceptions of a wrong and subversive principle, saving some (those who have exerted greater pressure or whose opposition would have caused greater unpopularity) at the expense of all others. Divide et impera! Furthermore, being an exception, and in addition with many uncertainties as to their application due to approximate legislative technique, their application should be restrictive. This would increase a situation of confusion and damage to the digital economy.”
What is the possible reason for introduction of the “Link Tax”?
“Article 11,” concludes Piana, “would seem to have been weakened at least in the part in which there are limits only to provide links. However, the wording of paragraph 1 envisages a ‘proportional and fair remuneration’ for the re-use of material published by freely accessible media, for a period of five years from the first of January of the date following publication. Part of these profits should go to the authors. The purpose of this obscure expectation (which actually seems to repeat existing provisions, even if applying them in the field of “innovative” services) seems to legitimize legislative initiatives already widely criticized and counterproductive in Spain and Germany”.
By way of conclusion
Among the slogans invoking the risk of “gagging the Net”, also relaunched by Italian Deputy Premier Di Maio, and the concerns shared by a long list of experts including Tim Berners-Lee, there remains the uncertainty of the outcome of the operation that it will probably fail even to achieve the goal of protecting publishers. A category which, in order not to succumb, must not only realize that the world has changed but hurry up to rethink its business model, given that it will not be a directive, a law or a provision that can act as a lifeboat.