The “copyright” directive, or how (to try) to regulate the digital jungle

, by Laura Mercier, Translated by Angela Losfeld

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The “copyright” directive, or how (to try) to regulate the digital jungle

If there is a European directive which has raised debate for several months, to the point of being explained, commented and analysed in the media - which are directly concerned -, it is clearly the “copyright” directive. It has brought about a strong mobilisation of various stakeholders in the press and social networks. This directive was voted by the members of the European Parliament (MEPs) on 12 September, but two months after the initial rejection of the draft directive by only a short majority (on 5 July), this vote remained uncertain until the end.

This draft copyright reform, which was developed in the framework of the digital single market, was proposed by the European Commission in 2016. Since then, it has been debated by the European Council and Parliament. On 20 June, the Legal Affairs Committee of the European Parliament adopted the revised copyright directive in what was already a tense climate. But the draft directive did not convince the majority of the MEPs who rejected the text by 318 votes against, on 5 July. After some new amendments which were possible until 5 September, the draft directive was re-submitted to the vote of the MEPs on 12 September, who voted by 438 votes in favour and 226 against. In the meantime, the debate went on through the mobilisation of supporters and opponents who have been engaged in a real battle of arguments, which are both legitimately well-founded and justified depending one’s point of view.

This directive aims to adapt copyright law to the digital age, as the previous legislation dates from 2001. On the one hand, the “beneficiaries” who are the creators, artists and press publishers defend the directive. On the other, a heterogeneous alliance which brings together the multinational companies of the Web, from Google to Facebook and not to mention Dailymotion as well as the proponents of an open Internet and free license like Wikipedia, which oppose the text and have denounced the quirks. For the European Commissioner for Digital Economy and Society, Mariya Gabriel, the objective is precisely to rebalance a power relationship between authors and large online platforms which have had an advantage over the latter for far too long.

The “neighbouring right”: a tool for the protection of journalism vs tax on the hyperlinks

Among the 24 articles that make up this text, article 11 has been the subject of numerous objections. It plans to give press publishers a copyright “neighbouring right”. It focuses on the use of hyperlinks by social networks which then redirect users to press articles. According to the European Commission, 57% of Internet users access this press content through social networks or search engines. To date, the media cannot claim any rights on these hyperlinks.

Copyright is very little used in the press because it can only be mobilized as a protection for content deemed as “original”. This “neighbouring right” could thus enable press publishers to claim rights from social networks which offer a hypertext link to their content. The Commission assures that this would only concern social networks like Facebook and Google News and not all websites. But for MEP Julia Reda, who leads the opposition to this text within the European Parliament, such a practice is similar to a “link tax” (tax on hyperlinks) and is nothing more than an infringement of the freedom of expression.

Article 13 has not gone unnoticed either. The latter focuses on the automatic filtering of content, especially audiovisual content, which is broadcast on platforms like YouTube and Dailymotion. In light of the e-commerce directive of 2000, these web hosts have no filtering obligation, but must respond at least a posteriori, therefore after the publication of content which is considered as contentious and react accordingly. The copyright directive would render this filtering mandatory and automatic, thereby assuming the establishment of filtering tools to identify the content subject to copyright and prevent its publication online. For some producers and authors, this is necessary in order to avoid the broadcasting of contentious content. But these filtering algorithms could also be disadvantageous for smaller artists for whose development these platforms are essential. Furthermore, the obligation to resort to such techniques of automated filtering would encourage the centralisation of the Internet since start-ups and new platforms which would like to launch themselves on this market would not necessarily have the means and the tools to implement this automatic filtering.

The battle of the arguments in the name of freedom and journalism

The association Wikimedia France opposes this directive and these two articles in particular. Indeed, in the case of Wikipedia, if Article 11 is applied and complied with, a private individual who updates a page and quotes an article, thus putting a hyperlink to the content in question, will have to first ask the publisher’s permission to quote it. For Wikimedia France, this is an aberration because they feel that the copyright directive is contrary to the free Internet. With regard to article 13, the association fears that such a procedure would encourage web hosts to opt for the precautionary principle by implementing a very (too?) thorough filtering to prevent any breach, thus limiting the freedom of publication on the Internet.

Web giants like Google and Facebook have mobilised the financial argument: their sharing platforms like Google News generate traffic on the media websites and index their content for free. Without these “relays”, traffic on media websites would decline, as would their advertising revenue. But this argument has a limit: the Google and Facebook platforms capture a large part of the digital advertising (78% in 2017), and thus marginalise the media and their shares on the digital advertising market.

For example, Spain has implemented a “Google News tax” which has finally pushed the company to close its service in the country. But this tax still differs from the copyright directive. In Spain, this tax grants publishers a right which is said to be inalienable to claim compensation when their content is quoted via a hyperlink on a platform, whereas the copyright directive only gives publishers the possibility to claim this financial compensation. The European Union (500 million inhabitants) does not represent the same demographic weight as Spain (46 million inhabitants), which could deter Google from closing its news service within the entire Union - at least that is what the draft directive’s supporters hope.

Last April, 146 organisations co-signed an open letter addressed to the European Parliament and asked the members to vote against the copyright directive. They pointed out that several voices had also issued their doubts as to this draft directive, such as Jimmy Wales, the co-founder of Wikipedia, or Tim Berners-Lee, the inventor of the hyperlink,, as well as the United Nations Special Rapporteur on the promotion and protection of the freedom of opinion and expression, David Kaye.

If some of these arguments are understandable and audible, so are those mobilised by the press publishers and journalists. At the end of August, the Director of the Agence France-Presse (the biggest French news agency) office in Baghdad, Sammy Ketz, published a column in several French media defending the neighbouring right provided for by Article 11. He was joined by other journalists and several European editors. This manifesto was written in the name of democracy and “one of its symbols: journalism“. Sammy Ketz shares his experience and the work of journalism in conflict areas:”The media that produce the content and which send their journalists at the risk of their lives in order to provide reliable, pluralistic and complete information for an increasingly higher cost are not the ones who reap the benefits, but rather the platforms which use it without paying. It is as if you were working, but a third person was shamelessly reaping the fruit of your work for nothing. If it is unjustifiable from a moral viewpoint, it is even more so from a democratic standpoint“. He added:”You must bear in mind that Facebook and Google do not employ any journalists and produce no editorial content, but are paid by the advertising which is associated with the content produced by journalists."

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