It’s the end of the line for the EU’s proposed Directive on Copyright in the Digital Single Market. The dramatic negative effects of upload filters would be disastrous to the vision Creative Commons cares about as an organisation and global community. The continued inclusion of Article 13 makes the directive impossible to support as-is.

Last month the Parliament, Council, and Commission completed their trilogue negotiations and reached a final compromise on the copyright directive text. Soon thereafter the EU Member State Ambassadors and the Parliament’s legal affairs committee gave a green light, now leading to a final vote in the plenary session of the Parliament scheduled for March 26.

Next week all 751 MEPs will get a chance vote on whether to adopt the copyright directive, or send it back to the drawing board.

Upload filters will turn the web upside down

From a copyright perspective, Article 13 turns how the web works on its head. It will require nearly all for-profit web platforms that permit user generated content uploads to either get a license for all user uploads or otherwise install copyright filters and censor content. If the platforms don’t comply, they could become liable for massive copyright infringement damages. The logical outcome is that this will harm existing platforms and prevent the creation and flourishing of new and innovative services in Europe because those new players don’t have the money, pull, or expertise to conclude licensing deals or build (or pay for) the necessary filtering technologies. Instead, the established companies will simply become more entrenched and dominant, as services like YouTube have a headstart on both of these fronts. We cannot support a copyright ecosystem that will simply entrench the extensive market power of incumbent players and, at the same time, create unnecessary roadblocks for new platforms and services that stimulate creativity and sharing.

This reversal of the liability regime that all but ensures upload filters will need to be implemented has another disconcerting consequence: user rights are thrown out the window because filtering technologies can’t possibly know when a work is infringing and when a work is being legally used under an exception to copyright. Such a system will almost surely curtail freedom of expression, as platforms will mitigate any risk by simply blocking content regardless of whether the use is sanctioned under the exceptions to copyright, such as for criticism, quotation, and parody.

The road to here

Over the last several years, Creative Commons has been working to support copyright changes in Europe that champion the commons and the public interest. We’ve done this as part of the Communia Association, civil society organisations, research groups, user rights activists, and open web advocates. CC submitted comments to the initial consultation from the Commission, made a joint analysis and suggestions for improvement with our network in Europe, advocated to protect scientific research, and offered voting recommendations on many provisions within the sweeping copyright directive.

Communia and other NGOs on the ground in Europe have supported positive changes to key aspects of the reform that would benefit research, education, and the public good, particularly working to improve the exceptions for text and data mining and education, as well changes to support the public domain and improve the ability of cultural heritage institutions to make content available online. The tireless efforts of organisations and individuals who stepped up to defend the commons and improve various parts of the directive that supports robust user rights should be celebrated. Their detailed research, writing, and advocacy has done so much to improve many parts not-so-well covered yet incredibly important pieces of the directive.

What you can do now

CC believes that our vision of universal access to research and education and full participation in culture will only be achieved when we all have copyright policies that truly promote creativity and protect users rights in the digital age. With Article 13, it’s no exaggeration to say that it’ll fundamentally change the way people are able to use the internet and share online. Even with some of the minor improvements to other aspects of the copyright reform package, on balance a directive that contains Article 13 will do more harm than good.

If you’re in Europe go to https://saveyourinternet.eu/act/ to tell your MEPs you don’t support a copyright reform that turns how we create and share on the web upside down. If Article 13 can’t be removed, then policymakers should reject the reform outright and begin again.