After years of lobbying, public protest and support from some of the world’s most famous musicians, the European Union’s copyright reform plans reach their long-awaited conclusion tomorrow.
At 12:30 p.m. Central European Time on Tuesday, March 26, Members of the European Parliament (MEPs) will meet in Strasbourg, France, where one of the items on the agenda is a vote on the Directive on Copyright in the Digital Single Market. Its most controversial element, Article 13, is a key piece of legislation that forces user-uploaded content services like YouTube to agree to “fair and appropriate” license deals with rights holders, and effectively ends the legal “safe harbor” from copyright infringement that currently protects them.
If MEPs pass the bill, the EU’s 27 member states will have up to two years to transpose the directive into national law. That list could possibly include the U.K., which is scheduled to leave the EU on either April 12 or May 22 (depending on whether MPs approve Prime Minister Theresa May’s Brexit withdrawal deal) and has previously indicated that it will adopt EU laws passed while it is still a member. As with most things Brexit-related, there are more questions and uncertainties than clear answers.
European countries that are definitely affected by the proposed reforms include France, Italy, Sweden, Netherlands, Spain, Poland, Republic of Ireland, Portugal and Germany, where tens of thousands of people took to the streets over the weekend in protest against the reforms.
According to the German DPA news agency, the biggest protest took place in Munich, where 40,000 people marched under the motto “save your internet.” There were also demonstrations in Cologne, Hamburg, Hannover, Berlin and the Polish cities of Warsaw and Krakow, although plans for mass Europe-wide protests against Article 13 don’t appear to have materialized.
This past seven days have also seen a number of websites across Europe, including Wikipedia — which is excluded from the provisions of Article 13 — and Reddit, go “dark” (i.e. switched off) in a last-ditch protest against Article 13 and what their owners regard as web censorship.
“We are unable to post or link or media unless you can verify to us that you own the rights to it. And if you’re just a small-time creator and not a big media conglomerate, good luck with that,” read a tongue-in-cheek warning on Reddit over the weekend. Slightly more concerning are reports that MEPs have received thinly veiled threats from open rights activists warning them that their Wikipedia biographies will be edited to reflect how they vote on Tuesday.
“After the copyright vote next week we will insert into EVERY MEP’s Wikipedia page how YOU voted on the copyright directive: for or against the directive, for or against upload filters. Abstentions won’t be mentioned but yes or no votes will,” states the email, signed by The Internet Copyright Task Force.
If MEPs vote down the bill, as its opponents hope, the reforms could theoretically be resurrected by a new European Commission, but would more than likely be dead in the water, say experts. The run-up to the vote has additionally seen a number of last-minute amendments proposed by MEPs opposed to the directive calling for Articles 11 and 13 (renamed 15 and 17 in the consolidated version of the text), to be deleted ahead of any vote.
“If they are successful, the text will need to go back to the Council for its approval,” says Sophie Goossens of global law firm Reed Smith. “With just a few weeks remaining before a new Parliament is elected, there will be little time for both institutions to agree. The risk is to see the text being passed onto the next parliamentary term, effectively sending it into the unknown.”
“Artists and creators are asking for European law makers to grasp the nettle to ensure the directive passes into law, so that they may be properly remunerated. In its current form however, Article 13 could still be voted down,” says Raffaella De Santis, technology, media and entertainment specialist at law firm Harbottle & Lewis.
“As currently drafted, it is still far from clear how Article 13 balances the rights of creators against the commercial realities for digital small or medium-sized enterprises in complying with the regulatory and administrative burdens that filtering every piece of content would bring,” she states, highlighting one of the areas of concern for many start-up platforms.
To prevent the directive from being voted down, or being significantly amended, numerous music organizations and trade groups have been busy making their own last-ditch pleas to MEPs to approve the bill. European labels group IMPALA, authors and composers society CISAC, umbrella organization UK Music, the European Grouping of Societies of Authors and Composers (GESAC), the Association of Independent Music (AIM) and Independent Music Publishers International Forum (IMPF) have all issued statements supporting the proposals in the past few weeks.
On Friday, March 22, British newspaper The Guardian published an impassioned op-ed from Blondie’s Debbie Harry criticizing YouTube’s global head of music Lyor Cohen for switching his allegiance from “championing musicians and artists” in his previous role as head of Warner Music to now “arguing on behalf of a company helping to take their livelihoods away.”
Meanwhile, umbrella organization Europe For Creators has condemned YouTube for using its platform “to influence public opinion, often with misleading or false information” through banner ads, blog posts and promotion of user videos attacking Article 13.
“In many ways this issue exceeds that of copyright questions,” says John Phelan, director general of International Confederation of Music Publishers (ICMP). “What we have observed in the counter campaign has been utterly unprecedented in terms of scale, scope and sophistication. Senior lawmakers of vast experience have repeatedly described it as the heaviest pressure of any EU law making example. Far too much of it has been insidious. Whatever occurs tomorrow, there are now big issues to solve re: how organizations use their clout via vicarious partners to attempt to derail legislation as hefty as that made by the EU and its 28 Members.”
“YouTube enabled the propagation of misinformation — such as the claims that Article 13 would lead to the shutting down of YouTube channels, kill European start-ups, put an end to memes and gifs and harm freedom of speech,” stated an open letter from Europe For Creators addressed to Susan Wojcicki, CEO of YouTube. “Such scaremongering deliberately ignores the special protections provided in the text and misleads public opinion.”
The Google-owned company did not respond to Europe For Creators’ request to run its own pro-Article 13 banner ads, while Google’s most recent public comment on the Copyright Directive was a blog post from Kent Walker, senior vp public affairs, published March 3.
“The directive creates vague, untested requirements, which are likely to result in online services over-blocking content to limit legal risk,” wrote Walker, warning that “Article 13 could impact a large number of platforms, big and small, many of them European.”
Helen Smith, chief executive of IMPALA, dismisses those concerns outright and points to the large wave of support from across the music and creative community in favor of the bill as evidence that it achieves its stated aim of tackling the value gap.
“It will be a historic day for balance, not just for copyright but for fairness and sustainability in the online world in general,” Smith tells Billboard. “We have seen certain operators use extraordinary new tactics to try and drive a false divide between creators and citizens. Now it is time for the parliament to take a stance and it’s great to see so many artists and other creators speak out in support.”
“The EU Copyright Directive is basically about bringing fairness to the digital market by promoting licensing solutions between platforms and rights holders,” says Dr. Harald Heker, CEO of German collection society GEMA. “Creators from all over Europe trust in the Members of the European Parliament to give green lights for a modern copyright,” he adds, “and for more fairness in the digital value chains.”