A month after imposing tough regulations to defend online privacy, the European Union is now contemplating whether to put its weight behind a different cause: copyright regulation.
You may have applauded the General Data Protection Regulation, which went into effect May 25 across the EU and gave the people often described merely as “users” significant new privacy rights online. But the proposed Directive on Copyright in the Digital Single Market—which passed a committee vote in the European Parliament Wednesday—targets most of its benefits at traditional media companies.
And just as the GDPR has yielded changes in the U.S.—for example, it’s made data portability a reality across social networks, freeing you to take your data to a competing service—the effects of these copyright changes will probably spill over across the Atlantic. And if you use a search engine like Google to find news stories or enjoy seeing the creative work people share online, you may not like those results. In fewer words, it could wreck the internet.
Link taxes
The single most absurd part of this bundle of copyright changes—first released in outline form by the European Commission in September of 2016—is a proposal to extend publishers’ copyrights online.
Article 11, “Protection of press publications concerning online uses,” essentially invites publishers to stop search engines—principally Google (GOOG, GOOGL), but also Yahoo, owned by Yahoo Finance’s parent firm Verizon—from showing excerpts of a story in search results unless they pay for the privilege.
How much of an excerpt? Earlier drafts let publications deny any search-engine snippet use, but a May 25 text says individual EU states can decide what’s “insubstantial” and unworthy of protection.
How would this work in practice? We don’t need to speculate, because Germany and Spain have already tried this play. In Germany, newspapers lost traffic and soon granted royalty-free licenses to search engines. In Spain, a law required payments, which led Google to close Google News in that country—after which a study by a publishers group found a 13% drop in traffic at Spanish news sites.
“There is no positive example for how the ancillary copyright might help anyone but copyright lawyers,” summed up Mathias Schindler, a spokesman for Julia Reda, a European Parliament representative of the Pirate Party of Germany who has long opposed the copyright-revision proposal.
A round of “mythbuster” talking points posted by a large group of EU publishers ignores that history and instead proffers a description of search sites that appears to have been written by nobody who has ever actually used one: “large search engines and other distributors make publishers’ content available for free to the user.”
No, that’s not how this works. Dear EU publishers: Search sites show links that, when clicked, take readers to your sites. If you make no money off that visit, that’s not Google’s fault. Without that help, readers have to go to individual sites and use their own search tools, which routinely fail to work as well as Google. That’s a recipe to make readers less informed.
This kind of enforced inefficiency also opens up a space for disinformation vendors to mislead readers—a risk over which EU parliamentarians expressed grave concern when they questioned Facebook (FB) founder Mark Zuckerberg in April
Meanwhile, if publishers really do resent Google, Microsoft (MSFT) or Duck Duck Go pointing readers to their work, they can—right now—edit a standard text file on their sites to block search sites.
Content filtering
Article 13 of the proposed directive may not seem as objectively foolish but poses a lot more danger. It would demand that sites hosting things people share—words, pictures, music, movies—take affirmative steps to prevent the unauthorized sharing of copyrighted material.
“They’ve become vast distributors of copyrighted content,” said John Phelan, head of EU communications at the international recording-industry trade group IFPI, of sites hosting user-generated content. He called that “value gap” an “ongoing and severe” market failure.
This change would reverse the current regime in Europe, also that of the U.S., in which a site has to take down copyrighted material once the rightsholder reports a violation. Without that more permissive system, the entire category of social media would have died a litigious death early on.
Earlier drafts specified content-filtering systems—like YouTube’s Content ID, which automatically looks for matches to content that copyright holders have provided upfront to Google for identification purposes, then lets rights holders decide whether to have Google delete the offending upload or send it a share of ad revenue generated from it.
The latest proposals are much more vague about remedies—“It’s not an obligation on services to bring in anything new,” Phelan said—and allow exemptions for smaller sites that wouldn’t have a YouTube’s resources to deploy content-recognizing software that can fail miserably in practice.
But the logic still points the same way: Either a social site gets a license from rights holders covering user uploads of their content, it actively prevents offending uploads, or it gets a hot date in court.
And automated filters remain dumb about recognizing memes, parodies and remixes—all reuses of copyrighted material that the law has traditionally safeguarded.
Transatlantic policy traffic
It would be tempting to dismiss the copyright directive as yet another wacky exercise by those European socialists. But it can happen here. The Recording Industry Association of America has campaigned for changes to the Digital Millennium Copyright Act, which holds social sites immune from their users’ uploads if they promptly take down offending content, using the same “value gap” talking points as IFPI has in the EU.
And last week, a Boston Globe editorial last week advocating a breakup of Google specifically endorsed rewriting the DMCA to punish that firm—never mind the consequences to any company that might want to challenge Google, but which won’t have anything close to a Google-sized budget for copyright litigation.
So if the full European Parliament votes to move this monstrosity forward, don’t be surprised when its waves wash up on the East Coast.
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Email Rob at [email protected]; follow him on Twitter at @robpegoraro.