Quick Letter to MEPs about Article 13 of Copyright Directive

Yesterday, I wrote a post asking people to write to their MEPs about the imminent vote in the European Parliament on the Copyright Directive.  Here's what I've just sent to me MEPs.  As you can see, I decided to concentrate on the worst aspect of the Directive, Article 13, in order to make as much impact as possible.

As you know, on Wednesday there is a plenary vote on the proposed reforms of the EU copyright system.  I am asking you to ensure that today's vibrant Internet is not undermined by Article 13.  Although this is presented as necessary in order to force Internet companies to license material on their sites, the framing is wrong on several counts.

Copyright already allows artists and companies to demand that infringing material is taken down from sites or licensed.  There is no need to extend copyright by making licensing mandatory.  The main consequence of compulsory licensing is that major sites will bring in upload filters – it is the only way they can track what is uploaded in order to pay licensing fees, and to block any material that is not licensed. 

Such upload filters will easily morph into instruments of censorship.  Moreover, upload filters are always imperfect, and will inevitably block legal material.  As a journalist, I've written about recent cases of upload filter failures in the EU:

http://copybuzz.com/copyright/article-13-even-worse-than-the-us-dmca-takedown-system/

The net effect of upload filters will be to dissuade European citizens from using the Internet creatively, and turning them into passive consumers.  This will represent an impoverishment of European culture both online and offline.

I would therefore urge you to support amendments to Article 13 that do not make licensing – and thus upload filters – mandatory.

Please Write (Yes, Again - Sorry) to Your MEPs to Stop the EU Copyright Directive from Seriously Harming the Internet

Back in June, I wrote a long post about the proposed update to EU copyright law. As I explained, there are some bad ideas being proposed, notably upload filters (Article 13), and ancillary copyright for news publications (Article 11), that will seriously harm the Internet in the EU. I won't repeat everything I wrote there: the bad ideas are still in play, despite minor amendments that have been proposed to give the impression that problems have been addressed. They haven't.


But I will ask you to write, once more, to your MEPs, as I did again in July, asking them to defend the Internet in the key European Parliament vote on Wednesday, 12 September. Once more, a short email is quite sufficient: the most important thing is to convey the seriousness of the situation. At its simplest, we need to remove Article 11 and Article 13 completely – they are not salvageable – and to amend Article 3 to allow companies to carry out text and data mining (TDM).

As well as the posts mentioned above, here are few more articles I have written on this topic in recent months, which you may find useful in writing emails to your representatives.

Article 13

Article 13: Putting Flawed Upload Filters At The Heart Of The Internet

Article 13: Making Copyright Unfit For The Digital Age

Article 13: Even Worse Than The Us DMCA Takedown System

You Wouldn’t Steal A Meme: The Threat From Article 13

Don’t Let Upload Filters Undermine The Public Domain

Upload Filters, Copyright And Magic Pixie Dust

Article 11

Article 11: Driven By Rhetoric, Not By Arithmetic

Article 3

Why The Copyright Directive Lacks (Artificial) Intelligence

The Right To Read Is The Right To Mine

But really, the details aren't so important at this stage: just write something – the simpler, and more direct the better – perhaps using WriteToThem if you are in the UK, or SaveYourinternet if you are in the EU. If we don't manage to beat off this implicit attack on the Internet in the vote on Wednesday, we will probably hobble the Internet in the EU forever, with knock-on effects around the world. It's that serious.

Countering the Latest Misinformation about the EU Copyright Directive

Tomorrow the European Parliament will vote on whether to send its version of the Copyright Directive text to "trilogues" for final negotiations. As I've written here before, this would be disastrous for the Internet in the EU. However, efforts to prevent that happening are having an impact. The MEPs on the JURI committee that drew up the current flawed text have just sent a short document to all MEPs to try to convince them to vote to move on to the trilogues (you can read it on Techdirt). It is full of misinformation, which I would like to debunk here so that people can explain to their MEPs – either in an email, or by phone – why the claims made in the JURI note are false.

I'll concentrate here on what it says about Article 13, which will bring in upload filters, since the threat it represents to the Internet is greater, and the misinformation in the JURI paper most egregious. For example, it says:

It aims to make platforms accountable, but not all platforms. Article 13 needs to be seen in conjunction with article 2 of the draft directive.

And explains:

Only those that are active, so that optimize the content posted online.

However, it fails to point out that "optimisation" includes trivial processes like changing the order of material. In other words, any site that does anything other than offer a storage medium is "active", and will thus be obliged to impose upload filters. Moreover, it truly is any site, of any size. Whereas before, supporters of Article 13 insisted it would only apply to the largest sites, JURI now says the following:

Any platform is covered by Article 13 if one of their main purposes is to give access to copyright protected content to the public.

It cannot make any difference if it is a “small thief” or a “big thief” as it should be illegal in the first place.

Small platforms, even a one-person business, can cause as much damage to right holders as big companies, if their content is spread (first on this platform and possibly within seconds throughout the whole internet) without their consent.

In view of such a small business potentially causing such a tremendous damage to right holders, the compromise text does not foresee any exemption for SMESs.

This is a huge and remarkable change, because it means even the smallest business or startup will have to licence or filter uploads. The JURI document tries to claim this isn't a problem because:

However, the text provides safeguards that will benefit SMEs. Measures must be appropriate and proportionate.

But that vague definition still places a huge burden on smaller companies, and pretty much guarantees that startups will avoid the EU, and set up shop elsewhere.  Finally, two pieces of misinformation are repeated yet again. One concerns filters:

no general filtering measures are included in Article 13. The text even emphasizes that this practice is prohibited

The text can prohibit the practice as much as it likes, but general filtering is precisely what Article 13 requires – there is no other way of doing it. Which means that companies will either break the law by not implementing general filtering, or break it by doing so. Finally, there is the old nonsense that Article13

does not threaten freedom of expression or fundamental rights.

The meme, mash-up, the gifs are already allowed and included in an existing exception and will still be after the adoption of this directive (article 5, directive 2001/29/EC

3. Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases: (k) use for the purpose of caricature, parody or pastiche

As I've pointed out before, this exception is optional, and currently not available in 19 EU Member States. Implying that memes are safe is duplicitous in the extreme, and shows how desperate supporters of the Copyright Directive are.

Please contact your MEPs to explain how things really stand, and perhaps point out that the fact the JURI briefing is reduced to spreading serious misinformation is an indication there are no real arguments in favour of this bad law.

Please Write a *Short* Email to Your MEPs Today about EU Copyright Directive

A couple of weeks ago, I urged people to write to their MEPs about an important vote in the Legal Affairs committee of the European Parliament (JURI).  Sadly, but not unexpectedly, we lost that vote.

However, this is not the end of the story.  On Thursday, there is a vote by the whole of the European Parliament on whether the copyright directive should be amended, or whether it can enter "trilogue" negotiations, which occur when the text is more or less agreed.  It is therefore vital that MEPs vote to give themselves the chance to reconsider key sections of this deeply-flawed text, rather than allowing it to pass on to the trilogues.  Here is a fuller explanation of what is going on.

My previous post explained the background to the copyright directive, and my email to MEPs then was quite long.  This time, a simple message to MEPs is all that is needed.  Please contact them, using either WriteToThem (in the UK), or SaveYourInternet.eu in the EU.

If you use the latter, please change the example text and put things in your own words.  Supporters of the copyright directive are claiming that these letters are a "spam" campaign by big companies, and not real emails from constituents.  We need to counter that with a flood of genuine communications.  For this week's vote, short and simple is best.

Please Write to Your MEPs to Stop EU Copyright Directive from Seriously Harming the Internet

Next week, a crucial vote will be held by the Legal Affairs committee of the European Parliament (JURI). It concerns the proposed copyright directive, which is moving through the EU's legislative process. Unfortunately, there are two extremely dangerous elements in the current text that will harm the Internet in the EU if passed: basic details about them can be found in this post I wrote for Ars Technica. A third element needs a tweak.

As the Pirate Party MEP Julia Reda explains, it currently looks as if the two bad elements will be accepted by JURI. But the vote is close, and EU citizens have an important opportunity to ask their representatives to influence the outcome of that vote. I urge you to do so, and soon.

You can use the free services WriteToThem, or a new site called SaveYourInternet, to send an email to your MEPs in just a few seconds. The latter site offers some text you can use about one of the problematic parts of the copyright directive, Article 13. However, you may wish to urge your representative to fight against the other bad idea, Article 11. Both of these are explained in the text below, which is what I have sent my MEPs.

Please feel free to draw on this if it is helpful, but it will be more effective if you express yourself in your own words. The most important thing is to send something – no matter how short – asking MEPs to help stop the copyright directive from harming the EU's Internet.

As a journalist who has been covering the Internet for 24 years, I am deeply concerned about the proposed copyright directive that is currently working its way through the EU legislative process. I am writing to ask you to alert your colleagues on the JURI committee to the deep problems with two sections in particular: Article 13, and Article 11. Both need to be removed.

Article 13 will require sites with a large number of user uploads either to license everything they make publicly available, or proactively to stop copyright material being posted. The first option is not practical when dealing with a fragmented market where there is no central licensing agency. And even where such an agency exists, it will not cover every possible upload.

The second option requires sites to prevent unauthorised copyright material from being posted. The only way to achieve this is through a general filtering mechanism. Unless every file is checked when it is uploaded, and compared against a database of copyright material, there is simply no way to know whether it infringes. The fact that a recent JURI version of the directive's text says "The implementation of measures by service providers should not consist in a general monitoring obligation" is irrelevant, because there is literally no other way of achieving the stated aim.

The EU's e-commerce law specifically forbids EU countries from imposing "a general obligation on providers... to monitor the information which they transmit or store." But legal issues aside, there are technical problems too. The upload filters required to block copyright material will be, of necessity, automated – the volume of uploads makes this inevitable. But it is impossible to create a system that encapsulates the subtleties of EU copyright law: even courts have problems navigating their way through this extremely complex field.

As a result, upload filters will be imperfect. The future financial risks of allowing copyright material to be posted means that upload filters will always err on the side of caution, and over-block. This will lead to legitimate material being blocked by mistake. It will have a chilling effect on public domain materials, criticism, parody, and popular Internet memes that frequently draw on copyright material. In short, it will greatly impoverish the EU's Internet, and lead to a massive assault on citizens' freedom of expression. Since licensing is impractical, and upload filters cannot work, Article 13 must be dropped completely.

Despite claims to the contrary, this will not harm the copyright industry. Research carried out on behalf of the European Commission at a cost of €370,000 suggests that unauthorized uploads are not a pressing problem: "In general, the results do not show robust statistical evidence of displacement of sales by online copyright infringements."

The other problematic part of the proposed directive is Article 11, which would introduce an ancillary copyright for news publications. As you doubtless know, this has been tried twice, in Germany and Spain, and failed both times to achieve its aim of revivifying newspapers. It's not hard to see why. The snippets that appear in search engines direct more readers to news sites: they are beneficial for publishers. Trying to force Internet companies to pay for the privilege of sending more traffic to news sites makes no sense. It is no wonder that Google refused to do so in Spain, with serious negative consequences for publishers there.

Some publishers argue that sites are using material from their news publications without payment. There are two situations here. If large amounts of text is being taken, those sites can be sued for copyright infringement under existing laws. If only snippets are taken, as is the case for Google, then this is not infringement, since it is simply using those snippets to direct interested readers to the original article. The snippets are not substitutes for the full text, but tasters encouraging further exploration. In neither case is there any need for additional copyright.

However, if Article 11's "snippet tax" is brought in, it will inevitably lead to fewer links being made to news sites. The public will be less well-informed at a time when misinformation is a growing problem, while publishers will lose visitors. The actual monies from the tax are likely to be small. The German experience shows that very little money is collected in practice. To summarise, then, an ancillary copyright is not necessary, and if brought in will be harmful to the public, with only a tiny benefit for publishers. As with Article 13, Article 11, too, needs to be removed.

Finally, a quick word about Article 3. The idea behind this – to allow text and data mining (TDM) of resources – is excellent. This is a crucial area for things like artificial intelligence, and the EU desperately needs legal certainty here. However, as it currently stands, TDM would not be available to most companies unless they pay additional fees. This makes no sense at a time when the EU is rightly trying to encourage digital startups in the region. TDM will be vital for many services and products, and if companies cannot be assured that they will be able to use this approach when they grow, but will be penalised for being successful, then they will simply set up elsewhere. That is hardly a win for the EU.

The basic rule for TDM is simple: the right to read a text is also the right to mine a text. This means Article 3 needs to be amended to allow any companies, of any size or age, to carry out TDM on texts to which they have legal access.

I apologise for the length of this email, but the topics are complex and important. However, the actions required are very simple: Articles 13 and 11 must be dropped, and Article 3 must be changed. If these amendments are not passed, the effect on the Internet in the EU will be very serious, both in terms of harming the rights of EU citizens, and of discouraging innovation by startups in this region. I therefore ask you to urge your colleagues to make the changes I have suggested.

Thank you for your help in this vital matter.

UK Citizens: Please Write to Your MPs Today about the Big Brexit Votes

There's an important series of Brexit votes taking place tomorrow.  The UK government will seek to overturn some sensible amendments made in the Lords, allotting just a few hours to consider many important issues. 

If you can, please write to your MPs today urging them to support amendments that will minimise the damage caused by the self-harming hard Brexit. 

You can write to your MP using the excellent WriteToThem service, which is quick and costs nothing.  Here's what I've sent - please feel free to draw on it, but do use your own words and thoughts to increase the impact. Thanks.

I am writing to you in connection with the votes on the EU Withdrawal Bill. I am very concerned about the destructive effect that a hard Brexit will have on this country, its economy and particularly those who are already struggling to make ends meet.

As every credible analysis shows, a hard Brexit will cause huge damage to the UK economy, and inevitably lead to an impoverishment of the vast majority of people in this country. For those who have little, that will be a serious blow.

To avoid that, I would urge you to vote for Amendments 1 & 2 (to continue in a customs union), Amendment 51 (to participate in Europe’s economic area) and Amendment 19 (to allow for a proper and meaningful vote in Parliament on any Brexit deal).

The votes on these amendments represent a unique opportunity to minimise the damage caused by Brexit and the UK government's incompetent handling of the negotiations. Please take full advantage of it for the sake of those most vulnerable in our society.

Incoming: Spare Slots for Freelance Work in 2018

I will soon have spare slots in my freelance writing schedule for regular weekly or monthly work, and major projects. Here are the main areas that I've been covering, some for more than two decades. Any commissioning editors interested in talking about them or related subjects, please contact me at glyn.moody@gmail.com (PGP available).  I am also available to speak on these topics at relevant conferences.

Surveillance, Encryption, Privacy, Freedom of Speech

For the last two years, I have written hundreds of articles about these crucial areas, for Ars Technica UK (http://arstechnica.co.uk/author/glyn_moody/), Privacy News Online (https://www.privateinternetaccess.com/blog/author/glynmoody/) and Techdirt (https://www.techdirt.com/user/glynmoody). Given the challenges facing society this year, they are likely to be an important focus for my work in 2018.

China

Another major focus for me this year will be China. I follow the world of Chinese IT closely, and have written numerous articles on the topic. Since I can read sources in the original, I am able to spot trends early and to report faithfully on what are arguably some of the most important developments happening in the digital world today.

Free Software/Open Source

I started covering this topic in 1995, wrote the first mainstream article on Linux for Wired in 1997 (https://www.wired.com/1997/08/linux-5/), and the first (and still only) detailed history of the subject, Rebel Code (https://en.wikipedia.org/wiki/Rebel_Code) in 2001, where I interviewed the top 50 hackers at length. I have also written about the open source coders and companies that have risen to prominence in the last decade and a half, principally in my Open Enterprise column for Computerworld UK, which ran from 2008 to 2015.

Open Access, Open Data, Open Science, Open Government, Open Everything

As the ideas underlying openness, sharing and online collaboration have spread, so has my coverage of them. I wrote one of the most detailed histories of Open Access, for Ars Technica (http://arstechnica.com/science/2016/06/what-is-open-access-free-sharing-of-all-human-knowledge/).

Copyright, Patents, Trade Secrets

The greatest threat to openness is its converse: intellectual monopolies, which prevent sharing. This fact has led me to write many articles about copyright, patents and trade secrets. These have been mainly for Techdirt, where I have published over 1,500 posts, and also include an in-depth feature on the future of copyright for Ars Technica (http://arstechnica.co.uk/tech-policy/2015/07/copyright-reform-for-the-digital-age/).

Trade Agreements - TTIP, CETA, TISA, TPP

Another major focus of my writing has been so-called "trade agreements" like TTIP, CETA, TPP and TISA. "So-called", because they go far beyond traditional discussions of tariffs, and have major implications for many areas normally subject to democratic decision making. In addition to 51 TTIP Updates that I originally wrote for Computerworld UK (http://opendotdotdot.blogspot.nl/2016/01/the-rise-and-fall-of-ttip-as-told-in-51.html), I have covered this area extensively for Techdirt and Ars Technica UK, including a major feature on TTIP (http://arstechnica.co.uk/tech-policy/2015/05/ttip-explained-the-secretive-us-eu-treaty-that-undermines-democracy/) for the latter.

Europe

As a glance at some of my 318,000 (sic) posts to Twitter, identi.ca and Google+ will indicate, I read news sources in a number of languages (Italian, German, French, Spanish, Russian, Portuguese, Dutch, Greek, Swedish in descending order of capability.) This means I can offer a fully European perspective on any of the topics above - something that may be of interest to publications wishing to provide global coverage that goes beyond purely anglophone reporting. The 30,000 or so followers that I have across these social networks also means that I can push out links to my articles, something that I do as a matter of course to boost their readership.