The Wikimedia Foundation has sounded a stark warning against a copyright reform proposal in Europe that’s due to be voted on by the European Parliament next week. (With the mild irony that it’s done so with a blog post on the commercial Medium platform.)
In the post, also emailed to TechCrunch, María Sefidari Huici, chair of the Wikimedia Foundation, writes: “Next week, the European Parliament will decide how information online is shared in a vote that will significantly affect how we interact in our increasingly connected, digital world. We are in the last few moments of what could be our last opportunity to define what the Internet looks like in the future.
“The next wave of proposed rules under consideration by the European Parliament will either permit more innovation and growth, or stifle the vibrant free web that has allowed creativity, innovation, and collaboration to thrive. This is significant because copyright does not only affect books and music, it profoundly shapes how people communicate and create on the internet for years to come.”
Backers of the reform proposals argue they will help European creatives be fairly recompensed for their work. But critics argue the proposals are not balanced and will chill the creative freedoms of web users to share and comment on content online.
The two articles attracting the most controversy in the reforms are:
- Article 11; which proposes a neighboring copyright for snippets of journalistic content — requiring news aggregators such as Google News to gain a license from the publisher to use this type of content (branded a ‘link tax’ by critics);
- Article 13; which seeks to shift liability for platform users’ copyright infringements onto the platforms themselves — and which critics contend will therefore push them towards creating upload filters to monitor all content before it’s posted, having a chilling effect on Internet expression. Critics sometimes dub this component ‘censorship machines’.
In July MEPs issued a smackdown to the Commission by refusing to back the reforms — and voting to reopen debate. Another vote is due next week, with amendments in the process of being tabled now, hence Wikimedia’s intervention.
In her blog post, Sefidari Huici urges MEPs to remember the original objective for the update: “To make copyright rules that work for better access to a quickly-evolving, diverse, and open internet.”
“The very context in which copyright operates has changed completely. Consider Wikipedia, a platform which like much of the internet today, is made possible by people who act as consumers and creators. People read Wikipedia, but they also write and edit articles, take photos for Wikimedia Commons, or contribute to other Wikimedia free knowledge projects. Content on Wikipedia is available under a free license for anyone to use, copy, or remix,” she writes.
“Every month, hundreds of thousands of volunteers make decisions about what content to include on Wikipedia, what constitutes a copyright violation, and when those decisions need to be revised. We like it this way — it allows people, not algorithms, to make decisions about what knowledge should be presented back to the rest of the world.”
She also warns that changes to EU copyright could have serious implications for Wikipedia and other collaborative non-profit websites, urging MEPs to “institute policies that promote the free exchange of information online for everyone”.
“We urge EU representatives to support reform that adds critical protections for public domain works of art, history, and culture, and to limit new exclusive rights to existing works that are already free of copyright,” she writes.
On Article 13 specifically she warns this would push platforms towards creating “costly, often biased systems to automatically review and filter out potential copyright violations on their sites”, warning: “We already know that these systems are historically faulty and often lead to false positives. For example, consider the experience of a German professor who repeatedly received copyright violation notices when using public domain music from Beethoven, Bartók, and Schubert in videos on YouTube.”
“The internet has already created alternative ways to manage these issues,” she adds. “For instance, Wikipedia contributors already work hard to catch and remove infringing content if it does appear. This system, which is largely driven by human efforts, is very effective at preventing copyright infringement.”
She also argues that the copyright reform debate has been dominated by market relationships between large rights holders and for-profit internet platforms — saying this too narrow slice “does not reflect the breadth of websites and users on the internet today”.
“Wikipedians are motivated by a passion for information and a sense of community. We are entirely nonprofit, independent, and volunteer-driven. We urge MEPs to consider the needs of this silent majority online when designing copyright policies that work for the entire internet,” she adds, calling for MEPs to create a copyright framework that reflects “the evolution of how people use the internet today”.
“We must remember the original problem policymakers set out to solve: to bring copyright rules in line with a dramatically larger, more complex digital world and to remove cross-border barriers. We should remain true to the original vision for the internet — to remain an open, accessible space for all.”
Asked for a response to Wikimedia’s criticisms, a spokeswoman for the European Commission pointed us to an FAQ where it discusses what will happen to online encyclopaedias based on content uploaded by users — and claims these sites will not fall under the scope of the reform (because “the vast majority of the content on Wikipedia is uploaded with the consent of their rights holders” — something critics of the reform dispute).
She also sent us a general comment from Commission spokesperson, Nathalie Vandystadt, in which she states:
The new copyright rules are necessary in order to allow creators and the press to get a better deal when their works are made available online. At the same time, our proposal safeguards free speech and ensures that online platforms – including 7,000 European online platforms – can develop new and innovative offers and business models. It will not ban memes or hyperlinks, as has often been claimed in the public debate.
The Commission presented its balanced proposal two years ago, in September 2016. We have discussed the proposal with all relevant actors. We now expect the European Parliament to reach a position and stand ready to start negotiations on this important reform with the Parliament and the Council of the EU as soon as possible. The process has been long enough. Any further delay at this stage would put at risk adoption before the next European elections.
It’s not the first time Wikimedia has made a high profile intervention in the reform debate; Wikipedia founder Jimmy Wales added his name to an open letter in June warning that it “takes an unprecedented step towards the transformation of the Internet from an open platform for sharing and innovation, into a tool for the automated surveillance and control of its users”.
While, in July, several local language versions of the Wikipedia encyclopaedia voted to temporarily black out their content to protest the copyright proposals.
It remains to be seen whether MEPs will be swayed by all this public pressure — not least given all the counterlobbying they are getting behind the scenes.
Commenting on the state of play for the copyright reform ahead of the vote later this month, Marietje Schaake, a Dutch Member of the European Parliament, told us it’s too close to call right now.
“Right now it is impossible to say how the copyright vote will play out next week. I have been working hard on a sensible compromise that respects our fundamental rights, but we don’t know until tomorrow which amendments will be voted on,” she told TechCrunch. “MEPs and political groups are still making up their minds, and the margins are very tight. The votes could swing either way.”
Schaake said it’s likely more clarity will emerge tomorrow, once it’s clear who has tabled what (in terms of amendments) that will then get voted on by the whole parliament next week.
On the controversial article 13 portion of the reform, which would make platforms directly liable for copyright infringements by users, options likely to be on the table include some previous texts (such as the text produced the Commission, or the original Legal Affairs Committee (Juri) text), which are therefore unlikely to gain a majority.
An amendment suggesting full deletion of the article is also likely to be tabled — but also probably wouldn’t get majority backing given the level of backing the reform has behind it.
There may also be a version of the text produced by the Internal Market and Consumer Protection committee, which had joint competency on Article 13 of the proposal with the Juri committee but at the vote in July argued that its position had not been taken into account by the Juri text (which it criticized as not achieving “the needed balance”.
On top of that additional new compromise versions — which “aim to remove the worst parts of Article 13”, as Schaake puts it — are also likely to be tabled. But with votes predicted to be tight it’s hard to say which way MEPs will jump.
In July, the parliament voted by 318 votes to 278, with 31 abstentions, to reject the negotiating mandate that had been proposed by the Juri committee the month before.
As a result, the parliament’s position was reopened for debate, amendment and a vote — which will be held during an afternoon plenary session on September 12.
The EC’s VP and commissioner for the digital single market, Andrus Ansip, has described the scale of lobbying from “all sides” around the copyright reform proposals as “astonishing“.
“Everyone claims that their rivals will kill creativity, or kill innovation, or kill the internet — or kill all of it at the same time. This all has to stop. It is getting us nowhere,” he wrote in a blog post in late July. “It is good to have a lively debate about copyright – but not one which has descended into slogans and exaggeration.
“We need to go beyond that, to find an acceptable and workable compromise that gives Europeans the right kind of copyright laws for the digital age. They deserve nothing less. And it is achievable.”
“Today, the debate sounds as if we had to choose between protecting artists or the internet,” he added. “I do not agree with this. What we should be doing — together — is to protect both: to make sure artists are paid fairly for their work, and at the same time protect freedom of expression and creativity on the internet. So we should not accept anything that puts that freedom in danger.
“Neither should we accept leaving artists and quality media unprotected. Those were my starting points for the Commission’s proposal. They have not changed.”
Ansip also wrote that he would like to see the parliament move closer to the Commission’s original proposals in its September vote, writing: “I genuinely believe that it was a good proposal, taking all opposing interests into account. That was not easy to achieve in itself.”
How or even whether MEPs manage to compromise on such a contentious issue remains to be seen. And in the meanwhile the lobbying isn’t letting up.
Pirate Party MEP Julia Reda has been campaigning for a copyright reform fit for the digital age for her entire career as an elected member of the European parliament.
Instead, she finds herself fighting against the threat of “censorship machines” and “link taxes”, as she sees it.
“The proposals for a “compromise” currently circulating in the EP don’t go nearly far enough to address the concerns that Article 11 will harm hyperlinking and Article 13 will lead to the widespread installation of upload filters which will massively overblock legal posts,” she tells us. “In fact, they may make matters worse.”
“The latest compromise proposal on the “link tax” now specifies that reproducing “individual words” from an article as part of a link is okay – but that just confirms that reproducing the full title of an article in a link, as is commonplace on the web, would require a license. It would be left to lengthy and expensive court cases to define how many words still count as “individual words” – links, the basic building block of the internet, would be mired in legal uncertainty for years.
“The proposal on platform liability was simplified by removing mentions of specifically which measures should be deployed to prevent copyrighted content from appearing online, but along with that, also all safeguards, complaint mechanisms and the objective not to remove legal works. Even if the text no longer mentions upload filters per se, total liability for all user-uploaded content leaves platforms with no other choice but to filter uploads as best they can, erring on the side of caution. This is, at best, a cosmetic change.”
Reda will be filing her own counter-proposals — aimed at removing “the threats to freedom of speech and the basic functioning of the internet”, as she couches it — from the text.
The deadline for amendments is Wednesday night so there is still time for proposals to shift. After that it will be up to MEPs to decide how they vote.
This report was updated with additional comment