The EU's new Copyright Directive really is that bad

The European Parliament has voted through a new set of copyright rules that digital rights activists fear will make it hard to share links and content, and potentially entrench new censorship mechanisms across the internet.

The Copyright Directive isn't a done deal just yet. It now becomes the subject of behind-closed-doors "trilogue" negotiations between EU countries, as represented by the Council of the European Union, and the European Commission and Parliament. The resulting text will also need to be approved one more time by the European Parliament before it goes into law. However, Wednesday's vote means the contentious parts of the law, regarding publishers' rights and upload filters, are now very likely to stay.

So, are those bits really that bad? Let's take a look.

Article 11

The first dangerous element is Article 11 of the directive, which would give online news publishers a new right: if someone copies even a small snippet of the text in one of their articles, they will need a licence to do so. The big target here is Google News, and the idea is supposedly that Google will pay publishers to reproduce their headlines when linking to their articles. This idea -- known in legalese as "ancillary copyright" -- has been tried before, to disastrous effect. It originated in Germany, where large media companies successfully lobbied the government for a new ancillary copyright law that was introduced five years ago.

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At the time, Google News included not just headlines, but also larger chunks of articles. Once their new law was in place, the publishers sued Google for licensing fees. Google responded by no longer reproducing snippets of text from the publishers that were suing it. As a result, the publishers' traffic plummeted and they swiftly caved in, giving Google a temporary exemption from having to pay up.

Years later, despite an ongoing legal battle, Google is yet to pay them anything.

Over to Spain, where large publishers got the government to introduce an even tighter ancillary copyright law. This time, there was no option for an exemption -- publishers had to demand a fee even if they didn't want to -- and in response Google simply shut down Google News in the country.

The result was massive harm to small Spanish publishers, which relied on Google News to send traffic their way, and of course to local news aggregators, which did not have the funds to pay up.

Was it wrong of Google to be so intransigent? One issue: Google does not run ads against Google News results. If Google did pay up, it would be doing so for a product on which it makes no direct money, although Google News does of course make the wider service more attractive to users. The concession would arguably also spell the beginning of the end for Google Search's whole model: those being linked to get traffic in return, which gives them more ad revenue, so why should they also get paid extra on the side?

Despite the German and Spanish experiences, last year the EU commissioner in charge of copyright, decided to try introducing ancillary copyright across the EU by making it part of his big copyright reform. That's how we got here, and the version passed on Wednesday would only allow the free sharing of hyperlinks that are accompanied by "individual words", not longer snippets of text such as whole headlines.

If the Copyright Directive ultimately passes with Article 11 intact, Google could shutter Google News across the EU. The only ones to benefit will be large, legacy news publishers that can rely on traditional newsstand presence and name recognition in their home markets, and whose competition -- which relies on online news aggregators and social media for finding new readers -- will be severely disadvantaged.

Article 13

The other problematic element of the new Copyright Directive is Article 13, which would affect all online services that host and promote a "significant" amount of user-generated content. In short, if that content infringes on someone's copyright, the platform would become liable.

That effectively means platforms of all sorts would be obliged to use filters to stop their users uploading things they shouldn't. The new law does not explicitly call for upload filters -- which may avoid a clash with the EU e-Commerce Directive, a law that bans generalised monitoring obligations -- but for any platform operating at scale, there is no other option.

The most prominent example of such a filter is YouTube's Content ID system, which tries to match users' uploads with works where rightsholders claim copyright. In 2016, Google said it had spent $60 million to develop the system. However, as many people have found when uploading innocent videos, Content ID does not work perfectly. Recent submissions to YouTube that were incorrectly rejected for infringing on copyright included a 10-hour video of white noise and an acclaimed British pianist's recordings of long-out-of-copyright works by Bach.

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If Content ID is the gold standard of this sort of technology, it's not hard to see why Article 13's opponents are predicting havoc. Other arguments against the article include expense -- even using an outsourced filtering system could be prohibitively costly for a startup -- and the possibility that such filtering mechanisms could, once entrenched across the internet, potentially be used for more sinister purposes than copyright enforcement.

It's not just civil liberties activists who are worried here. Web inventor Tim Berners-Lee, TCP/IP creator Vint Cerf, lead Wikipedian Jimmy Wales and security guru Bruce Schneier have also spoken out against Article 13, 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." Even David Kaye, the UN's special rapporteur on freedom of expression, has raised the alarm.

So, if the arguments against Articles 11 and 13 carry such heft, why did the European Parliament give its approval this week?

Lobbying tactics

While tech sites have almost unanimously reacted in horror, others parts of the media have not, with many instead taking the line that the pushback was orchestrated by Big Tech.

There's a grain of truth to that. The Financial Times reported that Google tried to get publishers in its Digital News Initiative -- the scheme through which it funds development of new online media models -- to lobby members of the European Parliament (MEPs) on the new directive.

However, Google arguably stands to benefit from the Copyright Directive. It has the resources to pay for filtering systems that smaller potential rivals cannot afford and, if it has to shut down Google News in Europe, it would also not take a significant financial hit. Nonetheless, the link with Google has been persuasive for many MEPs, who believe Google is trying to use content for free.

Another useful tool for the rightsholder lobby has been their opponents' use of the term "link tax" to describe Article 11. The phrase has been around for many years now, and it is admittedly catchy, but it's also less than accurate. No-one is trying to outlaw or tax hyperlinks, but rather the text that goes along with them. Some may see this as a semantic difference, but it has allowed supporters of Article 11 to claim that the other side is making things up.

Now, the fight is almost over. The final stage in the battle - the European Parliament's last vote - will most likely come in the spring, just before parliamentary elections.

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