Trilogue Meetings Barely Nudge Needle in Article 11 and Article 13

Article 11 and Article 13 are currently in “Trilogue” meetings. Leaks suggest that the EU’s copyright proposal haven’t changed much.

Some refer to Article 11 and Article 13 as Europe’s SOPA moment. In both cases, the laws stand to effectively wreck the Internet’s ability to preserve free speech and greatly favour multi-national corporate interests. Most citizens strongly oppose the laws. While American citizens won the fight on SOPA, the battle continues between European citizens and Article 11 and Article 13.

Article 11, often referred to as the Link Tax, would compel platforms to pay a tax for the privilege of linking to other articles. In fact, an earlier link suggests that the law would force publishers to collect taxes whether they gave permission or not. As a result, the law, according to some, would kill Creative Commons news in Europe.

Meanwhile, Article 13, known as the upload filter, would force platforms to install filters that actively seek out and block copyrighted material. The technology, of course, doesn’t actually exist. What does exist is highly flawed and doesn’t take into consideration fair dealing, fair use, or other existing exceptions. Instead, it assumes all use is infringing. It’s also this law that some argue would ban meme’s as well, though it goes much further then that.

In September, intense lobbying overcame widespread opposition from European citizens and compelled European lawmakers to pass the laws. The passage was universally slammed by innovators, citizens, civil society, European websites, and creators alike. Meanwhile, major foreign record labels and foreign corporate interests celebrated the move.

Since the passage, the copyright reform laws then move to “trilogue” meetings. These are basically meetings among certain interests to discuss possible amendments to the laws. They are also held behind closed doors, kept away from the public eye. As such, European’s know that trying to affect change at this stage would be next to impossible.

Now, leaks are suggesting that little has changed with the copyright laws. Julia Reda, a European MEP, examined the leaked documents. She says that the changes offer a mixed bag where some changes are for the better, while others, for the worse.

One positive change is that platforms no longer face inescapable liability for the actions of their users. Instead, platforms are liable for the users unless they cooperate with rights holders, implement “effective and proportional steps” to prevent infringing material from making its way online, and that those steps are “suitable and effective technologies”.

It may be hard to believe that this is an improvement, but it’s an improvement in that platforms are no longer simply liable for the actions of their users full stop. Still, it doesn’t avoid the idea that platforms must implement technologies that effectively don’t really exist in the first place. Reda notes that some exceptions did make their way to the language such as open source repositories and code sharing sites such as GitHub. There is also discussion of possibly allowing small businesses to simply not implement these bankrupting filters, but it’s only a possibility.

It is also noted that the use of human review and conflict resolution systems have been rejected.

As for the Link Tax, it appears that one positive move is that facts will not be copyrighted. The very idea that there was a push to copyright facts is incredible. If facts were copyrighted, society would practically grind to a halt at that point. Imagine someone copyrighting the fact that drinking water can be good for you. What would happen if speed limits were copyrighted material? What about the prices of, well, anything? The sky is the limit to what could be curtailed under that scenario just because it appeared in a news article.

Rede also points out that hyperlinks themselves are not explicitly exempt from the link tax. More specifically, what is not exempt is anything that aren’t “insubstantial”. Of course, one legitimate question is whether or not a headline is “insubstantial”. The reason this is important is because many URL’s include the headlines of articles.

We can offer you a demonstration of this. Simply hover your mouse over this link. When you do, you should see a tool tip appear showing what the URL is. If you notice, anything after “freezenet.ca/” contains the article headline separated by dashes. This is a pretty common practice among news sites because even if someone tries to mislead by linking to something, the site itself can offer a hint as to what is on the page through the URL.

So, the problem is, if a headline constitutes copyrighted material, the act of simply posting the link itself, even without a single character of accompanying text from the article itself, could constitute copyright infringement. Combine this with the fact that these rights cannot be waved by the publisher (as per the aforementioned killing of Creative Commons news), and you have a situation where there is simply no exceptions ever.

There is some discussion as to whether or not these laws should only apply to European news. Another discussion point is permitting news sites to offer a free license. That apparently represents a change from the language parliament proposed.

The Electronic Frontier Foundation (EFF), for its part, blasted what they saw:

We’re disappointed to see how little progress the trilogues have made in the months since they disappeared behind their closed doors. The proponents of Articles 11 and 13 have had years to do their homework and draft fit-for-purpose rules that can be parsed by governments, companies, and users, but instead they’ve smuggled a hastily drafted, nebulous pair of dangerous proposals into a law that will profoundly affect the digital lives of more than 500 million Europeans. The lack of progress since suggests that the forces pushing for Articles 11 and 13 have no idea how to fix the unfixable, and are prepared to simply foist them on the EU, warts and all.

For what it’s worth, it was well known going into this stage that trying to effect positive change would be next to impossible. It is also worth mentioning that there will be other debates and votes following the “trilogue” meetings as well. As many have pointed out, it’ll be easier for public input to make its way into the debates again in the subsequent votes.

The bad news here is that, at this stage, we are running out of stages for these laws to be stopped. The fact that Italy now opposes these laws does offer some hope because they join other countries in forming what could be an effective block on these laws. Still, it’s hard to rely on this as lobbying can still hold sway over widespread public opinion. It is, after all, how we got here in the first place.

Drew Wilson on Twitter: @icecube85 and Google+.



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