Why copyright in the DSM Directive should be saved

The vote of the European Parliament against the European Commission’s proposed Copyright directive in the Digital-Single Market was received with shock by the European publishing and culture industries.

Although the directive itself is complex to the extent that it may be interpreted in different ways, and some of it is admittedly contentious on practical and technical grounds, the directive’s regulatory framework aimed at harmonising copyright laws with the digital and online world, and at shifting the balance of power from online internet institutional and corporate titans in favour of European cultural stakeholders and publishers.

Internet titans such as Google, Mozilla and Wikipedia railed against the directive while the Pirate Party led a Europe-wide campaign against it, citing ‘freedom of expression’ as one of the main concerns. In this vein, Julia Reda, MEP and Pirate Party member has claimed that the directive “would limit freedom of expression, harm independent creators, small publishers and start-ups, and boost fake news – serving, if at all, the special interests of a few big corporations.”

Apart from being empirically incorrect, Reda’s obfuscated perspective on the directive is driven by abstract ideological motivations, and she is wittingly or unwittingly serving internet titans. In reality, the directive provides various safeguards for authors and publishers, including the right of authors to receive full account of their sales, the right of collective bargaining with internet websites for cultural stakeholders and publishers, and the right of authors and publishers to be properly compensated when their work is used for commercial ends on the internet.

The directive also provides various copyright exceptions for education purposes to libraries and heritage institutions while reiterating the right of publishers to negotiate for licences. The latest version, drafted by EU Parliament committee rapporteur Axel Voss, also included a compromise between authors and publishers on article 12.

Articles 11 and 13 seem to have been the most contested articles of the directive and incidentally they are the articles which very clearly shift the balance of power from internet titans to the culture and publishing industry. Article 11 provides a neighbouring right for press publishers and puts an obligation on information-sharing websites to pay press publishers for their use of content. The aim of the article is clearly intended at news aggregation, and the article puts an emphasis on the aspect of commercial use, but critics say that it would affect hit users with a “link tax”.

In reality article 11 does not regulate the base of internet users, and clearly excludes hyperlinking. Instead it provides press publishers the right to negotiate with information-sharing websites for their use of content. Article 11 wouldn’t have affected the general user, but it would have given greater leeway for European publishers to negotiate contracts and licences with US internet titans such as Google. Admittedly, article 11 is contentious on technical grounds given that, if publishers used article 11 to put an obligation on Google for the listing of searches with the aim of offsetting advertising revenues from the use of mobile devices, Google may as well retaliate by removing the publishers’ search results straight away. So, it is true that on practical and technical grounds, article 11 may be very contentious, but on a point of principle, politicians should always be on the side of European press publishers when economic disagreements arise between US internet titans and European publishing and culture industries.

This is not about free speech, or about restricting some kind of information, but about an economic imbalance of power in the online and digital world dominated by US titans. Let’s not delude ourselves that the online world and its economic structures are democratic – they are not. The economic relationships of the online world, that is relationship between the consumer or user and the online seller or provider, are not based on the collective will of millions of internet users. They are instead conditioned by internet monopolies such as Google, Amazon and Facebook, which incidentally today also happen to be some of the biggest companies in the world and as powerful and effective as to provide services and products which have changed our lives and economies.

On the other hand, article 13 does not put an obligation to install upload filters as commonly stated by opponents to the directive, but it does put the burden on internet content-sharing websites to pro-actively prevent protected content from being uploaded and distributed online. Article 13 also gives the right to culture stakeholders to negotiate for licences with internet-content sharing websites and what this means is that internet monopolies may no longer be able to unilaterally set the value of the payments to rights-holders – YouTube is a case in point which forces artists to accept its value of payments unilaterally due to its sheer monopoly power. Such a step would be greatly effective in curbing the tide of power these monopolies are riding and thereby act in favour of our local industries.

Until this vote took place, the EU parliament and the EU Commission had consistently tried to rein in on internet monopolies which are unilaterally setting the market rules. With all its faults and serious economic problems, the EU has proved itself an effective institutional power able to regulate corporate monopolies, and it is in this spirit that the directive should be saved.

Now, European publishers and culture stakeholders should try and take a leading role in pressuring for a reasonable compromise without giving away too much. Certain safeguards could easily be added without compromising the proposed balance of power – there can be safeguards against the link tax that do not jeopardise publisher rights and safeguards against upload filters that would not compromise the liability of content-sharing websites for rights infringement and the illegal sharing of content. It may take some time to conceive of a radical new way the online world would work, but doing nothing is certainly not an option. The massive influx of propaganda against this directive produced by internet titans and delivered by their servants, the Pirate Party, have to be fought back with a strong educational and information campaign.