Earlier today, the European Parliament passed Copyright in the Digital Single Market Directive by a vote of 348 to 274. The directive, initiated by the Commission of the European Union in an attempt to modernize copyright law for the 21st century, created an EU-wide debate with internet activists and tech companies fighting with music labels and publishers over two articles, 11 and 13, that will have massive repercussions for content online. With its passage in the Parliament, the fight now heads to the individual EU member states, as the next phase of the legislative process, incorporation of the directive into the national laws of EU member states, is poised to begin.
The Copyright Directive has been a project of the European Commission since 2012. However, the directive only became a flashpoint issue when it was brought to the Parliament in 2018 and more attention was given to the legislation, particularly Articles 11 and 13. Article 11 establishes a “link tax,” requiring that new aggregators like Facebook and Google News pay news organizations licensing fees to display their content. Article 13 extends this licensing requirement to social media platforms, holding companies like YouTube directly responsible for the copyright violations of their users, which could result in upload filters.
Concerns about what Article 11 and 13 meant for creative content on social media quickly mobilized a grassroots movement against the measures. Over 5 million people signed a Change.org petition in opposition to Article 13, making it the petition with the most signatures in European history. Meanwhile, activists organized protests, and tens of thousands of people demonstrated against the copyright directive in Austria, Poland, Portugal, and Germany on Saturday. Yet, these efforts failed to convince a majority of the Parliament. A legislative effort to remove these amendments (now called Articles 15 and 17 in the finalized text) failed by 5 votes, and the directive passed with the articles intact.
Nevertheless, the Parliament is far from the final decision maker for EU law, and following its approval, the next major hurdle for the directive is its mandate to be incorporated into national laws of the EU member states within 24 months. This devolution to member states always jeopardizes the uniformity of EU-wide policies, but the Copyright Directive makes this divergence particularly likely with its vague language.
In response to criticism about link taxes and upload filters, the European Parliament has passed legislation that shifts the responsibility to the national governments and companies to navigate the directive’s minefield of contradictions, a task which includes factoring the size and audience of a company to determine its required compliance with the directive’s copyright efforts and ensuring that fair use content is not subject to any blocking or penalty. This deflection gives a lot of power to EU member states in deciding how stringently they would like to pursue copyright. Based on the recent debate about the benefit of the directive, member states are likely to vary widely. In contrast to countries like Germany and Portugal that had demonstrations against the copyright directive, Poland had a protest for the measure’s adoption with Polish newspapers printing blank front pages on Monday to draw attention to the plight of publishers. Member states also have different experiences with trying to regulate tech and copyright. Both Germany and Spain tried measures similar a link tax and failed, an experience which perhaps will serve as cause for caution in incorporating Article 11 into the national laws.
The vote tally that defeated legislative attempts to remove or alter Article 11 and 13 reveals a lot about how rigorously the copyright directive may be pursued in EU member states with the Polish, Czech, and Austrian representatives largely voting to change the articles and the French, Spanish, and Portuguese representatives mostly deciding against any alterations to the document prior to the vote.
The importance of member state implementation is not lost on the proponents and opponents of the directive. YouTube and Wikimedia, two of the biggest opponents to Article 11 and 13 seemed ready to continue the fight at the member state level, with Wikimedia posting to Twitter, “the fight is not over: the impact of the copyright directive will be determined by how lawmakers in each country choose to implement it. Now is the time to advocate for the good and mitigate the harmful parts of the directive.” Meanwhile, L’ARP, the French guild of authors, directors, and producers was clear that, while the passage of the directive was a success, the battle is far from over as it heads to the member states.
Yet, these member state skirmishes for and against the copyright directive may have little effect. The lack of a consistent EU-wide policy on copyright could simply result in media platforms opting to adopt the regulations of the most stringent member state rather than change its policy on filtering or licensing in each individual country. As long as the copyright directive is an EU policy, the freedom of content in the European Union will remain vulnerable. Although the fight to save the internet is headed to member states, victory can only be achieved through actions at the EU-level, and with parliamentary elections around the corner in May, copyright may once again take center stage.
