Felix Reda

Two world views are about to clash in a crucial copyright vote next week, on June 8. The European Parliament is currently undergoing a process to find a common position on the copyright reform plans proposed by the European Commission, which would threaten core functions of the internet and which academics have unanimously slammed.

With the Parliament tending towards a reasonable position, some are resorting to dirty tactics to defend – or even extend – these disastrous plans by any means necessary.

An ‘alternative compromise’

On June 8, the Internal Market and Consumer Protection (IMCO) Committee will decide its standpoint. This is a crucial step in the copyright reform process, because the IMCO committee is jointly responsible for the Parliament position on one of the most controversial parts of the reform: the introduction of mandatory censorship filters on online services such as social media.

… Today it was revealed that MEP Pascal Arimont from the European People’s Party (EPP) is trying to sabotage the Parliamentary process, going behind the negotiators of the political groups and pushing a text that would make the Commission’s original bad proposal look tame in comparison. This is a tactic he recently already successfully applied to prevent the committee from adopting a progressive position on overcoming geoblocking. If he succeeds again, the result would once more do the opposite of what the Committee is tasked to do: Protecting European consumers.

… In this committee, Social Democrat MEP Catherine Stihler was appointed to take everyone’s proposed changes and develop a compromise that a majority of MEPs can stand behind. To do this, she is regularly meeting with representatives of all the other political groups (including myself, for the Greens/EFA group). Together, these representatives have come close to finding a compromise:

1. We do not support the Commission’s plan to force online platforms to surveil their users’ behavior and pre-emptively censor uploads that may be copyright infringement. Instead, we advocate requiring companies that actually have knowledge and control over copyright infringement on their platforms and don’t take immediate action to remove it, to take out a licence under fair conditions and be more cooperative towards rightsholders. In return, these companies would continue to be protected from liability for actions of their users, and users’ rights to use copyrighted content under a copyright exception would receive legal protection against arbitrary measures by online services or rightsholders.
2. We reject the Commission’s plan to create an extra copyright for news sites that would severely limit how we can share news online.

The EPP’s “alternative compromise” is a compromise like “alternative facts” are facts
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Arimont now wants the MEPs from groups like the Social Democrats and the Liberal ALDE group to rebel against their negotiators and support his own text instead.

He calls his text an “alternative compromise”, but in reality, it’s no more a compromise than “alternative facts” are facts. His text goes beyond the copyright extension plans by the European Commission and also ignores much more moderate amendments submitted by members of his own political group.

Content filters on steroids

Instead of finding a delicate balance between the interests of rights holders, online services and users as agreed by the other political groups, Mr. Arimont’s “alternative compromise” reads like a wish list of the content industry, with utter disregard for the Charter of Fundamental Rights and long-established principles of EU law.

He wants to double down on the obligation for content filtering, which he doesn’t want to just apply to services hosting “large amounts” of copyrighted content, as proposed by the Commission, but to any service facilitating the availability of such content, even if the service is not actually hosting anything at all. This could require content filters even for services that are linking to content on other websites, because hyperlinks, according to the Court of Justice of the European Union (CJEU), can be considered a copyright infringement under certain circumstances.

The only exception foreseen would be for micro-businesses that are no older than 5 years. So if you’ve been self-employed for more than 5 years, rules the Commission wrote with the likes of YouTube and Facebook in mind would suddenly also apply to your personal website.

At the same time, Mr. Arimont seeks to completely override the court ruling of the CJEU that states that general monitoring of all users’ activities constitutes a violation of fundamental rights – by brazenly stating that monitoring all users’ uploads for specific copyrighted works is not “general” monitoring, as if it were possible to reliably find all needles in a haystack without looking at the entire haystack.

He then goes on to state that any online service that so much as uses an algorithm to improve the presentation of user-uploaded content (like sorting files alphabetically by their name) would be considered directly liable for any copyright infringement. Where the European Commission proposal was trying to gloss over the fact that it was trying to re-write the intermediary liability rules, Mr. Arimont’s text spells it out for us: “The service providers that play such an active role are ineligible for the liability exemption” (active role being defined by him as “optimisation for the purpose of the presentation by the service of the uploaded works or subject-matter or their promotion by the service, irrespective of the nature of the means used therefor“).

Privatising news headlines all the way back to the cold war

Since all political groups in the committee except for the EPP (and the populist EFDD) had tabled amendments completely deleting the neighbouring right for publishers, the rapporteur’s suggestion to follow this proposal in the compromise amendments is logical. Of course Mr. Arimont was not happy with this outcome, but his “alternative compromise” reads more like a provocation than an attempt to find middle ground. Contrary to some of his EPP colleagues, who proposed the compromise wording developed by the lead committee rapporteur Therese Comodini (EPP), he goes for a drastic extension of the Commission’s proposed extra copyright for news publishers.

Where the Commission proposes a protection of 20 years for the use of news snippets in a digital form, he extends it to 50 years, for both offline and online uses. Reciting a headline from the cold war era would suddenly require permission from the original publisher, who may have long since gone out of business. Where the Commission wants to apply this right to press publishers only, Mr. Arimont explicitly includes academic publishers, a move that would spell disaster for any open access initiatives.

In an attempt to silence the most vocal critics of this copyright extension, Mr. Arimont generously clarifies that single words should not be covered by the new rights, and neither should hyperlinks. That of course means that anything that goes beyond a single word – two words – or the naked URL to a news article would be covered by the neighbouring right. And who’s going to click a link that doesn’t even use the headline of the news article as an indication of what can be found at the other end?

Download the “alternative compromises” here:
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Tell your MEP to say no to these false ‘compromises’

Help us defeat this brazen attempt to undermine Parliament procedures and expand copyright in the EU on behalf of big business with no regard to fundamental rights, contemporary internet culture or startups – and in a way that is likely to dangerously backfire.

Contact an MEP from your country who sits on the IMCO Committee and tell them you expect them to support MEP Stihler’s compromise amendments on the copyright file. A phone call takes no more than a few minutes and can prove very effective. Internet rights NGO Bits of Freedom has created a handy tool that allows you to call MEPs for free! The vote is only a week away, so now is the time to act!

I told my MEP to reject attempts to push a dangerous expansion of EU copyright  Tweet this!

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