copyright directive
At a time when its legitimacy is being questioned by most Europeans, the EU Commission is certainly not making any friends with its latest version of a 'Copyright Directive' which displays remarkable contempt for the public and the public interest groups whose objections it supposedly took into account when redrafting the copyright reform legislation.

Last week a 'final draft' was agreed by both the German and French governments. The main matter of contention was whether to allow an exemption for small businesses under Article 13. France said no; Germany yes. In the end Germany caved and agreed to amendments which would crush small platforms in favor of US Big Tech. Gee, thanks Merkel.

Incredibly, that was the only point France and Germany had any disagreement over - considering that the rest of Article 13, as well as Article 11, are draconian and entirely miss the ostensible reason of achieving fair protections and compensation for content-creators of copyrighted works. Although supporters claim that the Directive helps content-creators, it doesn't actually use or define that term. The 'rights holder' tends to be large conglomerates (such as the film or music industries) and content-creators who aren't beholden to these entities will suddenly find themselves unable to make a living.

In any case, while the EU Commission states that "applying the principles of better regulation will ensure that measures are evidence-based, well designed and deliver tangible and sustainable benefits for citizens, business and society as a whole" (p.3), they've obviously decided that this doesn't apply to Articles 11 and 13. Eurocrats did conduct research on those measures but cherry-picked only the findings which supported their agenda and ignored others.

Article 11 - A 'tax' on your link (unofficial draft)

Referred to as the "link-tax" by critics, it states that newspaper publishers need to be compensated anytime their content is shared online by news aggregators (such as Google News). In other words, aggregators need to pay licensing for any content that is less than 2 years old. The definition of what can and cannot be legitimately used has been expanded so that hyperlinks and 'very short extracts' can be shared without requiring payment, however that description in itself is vague and open to interpretation. Questions over the length of the extract or whether the extract can contain an image are not defined. In fact they leave it up to member-states to make those disctinctions. Without consistency in the Directive's application, there will obviously be different requirements in different countries. So even within the EU, one might see error messages like the one below.
link tax error
What's also unclear is how this affects non-commercial entities. Although some websites claim that Article 11 offers "no exceptions for individuals or non-profits", the latest document states that "these rights shall not apply to private or non-commercial uses of press publications carried out by individual users."

In effect this is an exemption for someone who runs a blog but it's unclear whether a website like Wikipedia or is also exempt. If not, then it means that alternative news aggregators will be unable to afford the licensing fees, effectively shutting out anyone trying to access a Europe-based website.

Google conducted an experiment to show what their pages would have to look like to satisfy the requirements (assuming the user hadn't paid the fees). The result essentially looked like an improperly loaded webpage. According to Google SVP of global affairs, Kent Walker, "even a moderate version of the experiment (where we showed the publication title, URL, and video thumbnails) led to a 45 percent reduction in traffic to news publishers."
blank google page
This had publishers calling it "scaremongering" and a "publicity stunt" but the fact remains that for those who can't afford the licensing fees, and want access to European markets, that is what their page will look like. Attempts at a 'link-tax' have been implemented in Germany and Spain in the past and both didn't work as the publishers had hoped. In Spain, Google News simply decided to shut down.

Furthermore, sites like Twitter and Facebook are heavily used by people to view and share news, and these will fall under the Directive. Any attempt by Facebook to preemptively license content from 3 billion users is destined to fail, and links to 3rd party news items will simply no longer be a feature of those platforms. Note that publishers are not obligated to charge for licensing; it's just they have the right to do so. Most likely they will strike deals with big social media platforms, but for anyone else, they'll need to cough up some dough, or perhaps be faced with a ton of lawsuits further down the road. Obviously, that makes this a very useful tool for government to selectively shut down websites.

Article 13 - All your meme are belong to us (unofficial draft)

More commonly known as the "meme ban", this requirement is more problematic for websites since it places liability for copyright infringement on the service provider and not the user (however, it doesn't absolve the user from having any liability). In addition to obtaining licensing, the service provider must ensure that work infringing on copyright is not uploaded to the site.

This means that they either have to preemptively acquire licensing for anything a user might upload (an impossible task since that can't be predicted) or they have to filter out everything at the point of upload if it doesn't pass some type of copyright check. Although the wording does not explicitly say that upload filters must be used, there really is no other way around it.

error instagram
Let's take YouTube as an example, where close to 400 hours worth of content is uploaded every minute. They already have a 'filter' system in place - ContentID - but even that is far from perfect (more like a mess), and there is no way for it to determine what is considered 'fair use' in a reliable manner. Even people (as opposed to algorithms) have trouble deciding which is which, and it can take a court case to settle the matter.

So why "meme ban"? It's ostensibly because memes often contain copyrighted material. Although the Directive states that content which contains "quotation, criticism, review" or is used "for the purpose of caricature, parody or pastiche" will be exempt, we still have the issue of these automated systems not being able to distinguish between what is copyright infringement and what is parody. Since they are now liable for such content, we can expect that, more often than not, legitimate content will not be allowed. This effectively makes it a ban on memes. Shoot first, ask questions later - or not at all. Again, we see how this becomes a useful tool for silencing meme generation and sharing, memes that are often used to convey political truths.

Although underhanded forms of censorship are already increasingly common practice - for example, targeted suppression of conservative viewpoints and alternative news - this Directive will transplant that capacity from vague infringement of Big Tech's 'community guidelines' to the broader and more punitive reach of the state, such that any 'offending content' can be removed or blocked at will, and the 'offenders' punished, under the legal cover of 'copyright infringement'. Those already censoring ad hoc - quasi-political gatekeepers like YouTube and Facebook - will now be able to do so with the law behind them, and startups or developing businesses will be pushed out of the game further, consolidating power over what users see and hear online into ever fewer hands.

Although the new measures allow an 'exception' for small businesses, as mentioned above, it doesn't amount to much, and most online publishers wouldn't qualify. They do however make reference to an exemption for non-profit organizations in Article 2:
(5) 'online content sharing service provider' means a provider of an information society service whose main or one of the main purposes is to store and give the public access to a large amount of copyright protected works or other protected subject-matter uploaded by its users which it organises and promotes for profit-making purposes. Providers of services such as not-for profit online encyclopedias, not-for profit educational and scientific repositories, open source software developing and sharing platforms, electronic communication service providers as defined in Directive 2018/1972 establishing the European Communications Code, online marketplaces and business-to business cloud services and cloud services which allow users to upload content for their own use shall not be considered online content sharing service providers within the meaning of this Directive.
Again, it is not clear whether alternative news sites like fall under this. The language is vague and doesn't clearly define all possible scenarios.

article 13 error
EU Commission shows contempt

In response to overwhelming criticism of the new Directive, the EU Commission published a poorly written and rather condescending rebuttal. They've since scrapped it, but the original post can still be found here. In short, it's a rehash of an earlier Q & A released on the European Parliament's website, downplaying the impact of the new Directive and belittling opponents who, in their eyes, are just a "mob". For anyone who's been following the story and has legitimate concerns, it is indeed offensive. Almost 5,000,000 people have signed a petition to "Stop the censorship-machinery! Save the Internet!" And then there are the protests. And no, we're not Google bots.

Mike Masnick from Techdirt has provided excellent commentary on why the Directive is complete and utter nonsense and really just a poor attempt at damage control for the political status quo. The contention that "Big Technology has even 'created' grassroots campaigns against the Copyright Directive in order to make it look and sound as if the EU is acting against the will of the people" is misdirection and a lie. All evidence points to big business having the most influence in pushing for this legislation:
Since November 2014 there were 765 declared encounters between lobbyists and the Commission with "copyright" as a subject 1 Over 93% of these were with corporate interests, but the list of main actors might be quite surprising: the lobbyists with the highest access were in fact not big tech, but the collecting societies, creative industries (including big film and music studios) and press publishers.

The most frequently listed names are: IFPI - Representing recording industry worldwide (37 meetings) whose members include Sony Music and Warner Music, followed by the Federation of European Publishers (27) which represents national associations of book publishers, and GESAC - the European lobby for collecting societies (25), whose members include big EU collecting societies such as PRS for Music, the US giant recording label Universal Music Group International (22), and the Society of Audiovisual Authors (22), which represents national collecting societies. [...]

Overall, the limited information which is available about lobby meetings shows the intense level of lobbying taking place on the Copyright Directive, but it also interestingly exposes that the biggest lobbies were not in fact big tech companies and their associates, as many headlines claimed, but the publishers, creative industries and collecting societies.
EU directive lobby chart
© Mike Masnick
"The narrative that all the lobbying is coming from Google has caused EU regulators to flat out discount complaints from people warning about problems with the proposal, while treating petitions supporting the Directive very differently."
The text of the new Directive, particularly Articles 11 and 13, make it quite clear that it will be ordinary everyday users who will suffer the most as a result of these measures, and the corporations that benefit. No matter how the EU Commission frames it, the idea that the 'everyday artist' will benefit from this is a ruse. There's no escaping the fact that the demands they are making will effectively censor any content coming in and out of the EU. We can expect to see more messages like the one below when trying to access US websites that haven't complied with GDPR.

gdpr warning
Is there any way around it?

Should the measures go through as they are in their current form, not really. All will have to adapt and conform. It's possible that people could use VPN to access content that is filtered or to circumvent upload filters, however many free VPN sites are unreliable, slow and not everyone can afford to pay to use a faster more reputable one. Although websites can (and do) employ anti-VPN measures, it's still not an exact science and many are able to get around those blocks to avoid censorship. However that's not ideal and one shouldn't have to resort to such measures.Then again, this isn't about Internet 'fairness' and more to do with tighter measures of control. Despite the fancy wording, whether it's for 'copyright' or 'security' or 'privacy' etc, if it walks like a duck... you know the rest.

Although the Commission has completed its draft process and is moving forward with it, there is still some time before the Directive goes into effect. The deal still needs to be voted on by the EU parliament then confirmed by the Council of Ministers, which is likely to happen in either late March or mid-April. Elections to the European Parliament take place in May so by making your voice heard (here and here) there is still a chance that this draft may be amended in a way that would be acceptable to all parties involved, or pushed off until next year.

This happened last year when massive pushback from the public won over members of the European Parliament and they voted 318 to 278 to reject the initial draft.

However things transpire, keep in mind is that this is very likely part of the wider culture war. The generally Leftist, Globalist, pro-empire ideologues that populate and petition the EU structure are, in a sense, trying to take back the means of cultural production by 'mainstreaming' speech and artistic expression, turning the Internet into a corporate-controlled cyber version of the cable TV system. The fact that they're having to resort to outright censorship suggests that they've already lost the battle for 'hearts and minds'. Watch as nationalist candidates become the majority grouping in the European Parliament this May...

Should the Copyright Directive pass those stages and be adopted as is, it won't become law until 2021. In which case, you'd better get your meme on while you still can!

yo dawg meme