The European Parliament has agreed the final text for a controversial new copyright law that critics fear could spell the beginning of the end for the open internet and user-generated content, from memes to parodies.

The EU Copyright Directive is designed to modernise the bloc's 18-year-old copyright laws for the digital age by forcing tech companies to share more revenue with the producers and publishers of the creative works and news stories posted on their platforms. They will also have to change the way they police infringements on their sites.

© iStock/ericsphotography
© iStock/ericsphotography

Media companies and artists from Mike Leigh to Paul McCartney believe that the law is essential to provide fair remuneration and avoid the exploitation of creative works online. But free internet advocates argue that it will mandate platforms to embed automated censorship tools in their networks.

Their arguments revolve around two key parts of the legislation: Article 11, known as the "link tax", which orders news aggregators to pay publishers for linking to their sites, and Article 13, which requires platforms to automatically filter new content for copyright infringements using tools dubbed "upload filters".

Ahead of a critical vote on the legislation in June 2018, a group of technology luminaries including World Wide Web inventor Tim Berners-Lee and Wikipedia cofounder Jimmy Wales outlined their objections to the proposals in a joint letter to Antonio Tajani, the president of the European Parliament.

"By requiring internet platforms to perform automatic filtering all of the content that their users upload, Article 13 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," it read.

MEPs decided that the proposals required further debate. 

In February 2019, they reached a breakthrough in negotiations. Lawmakers agreed that the upload filters will be required for any platforms that have been operating for more than three years and have revenues over €10 million and more than five million monthly users. There will also be exemptions for non-profit and open source platforms such as Wikipedia and Github.

They also agreed that the link tax would apply to any link from a news story with more than "single words or very short extracts".

EU member state governments will now vote on the proposals in the European Council at a date to be announced. A final vote will then be held in the plenary of the European Parliament between late March and early April.

What effect will the directive have?

Google has been among the most vociferous critics of the law and has lobbied hard against the legislation. The search giant has threatened to pull Google News from the EU if Article 11 is passed, as it would force the company to pay publishers for posting snippets from their articles that show up the news aggregator's search results.

Tech titans aren't the only opponents of the plans. No one will be exempt from the link tax, which will severely disadvantage small and independent publishers who rely on aggregators and social media to attract people to their content.

Article 13 could also cause smaller businesses and members of the public to suffer.

Platforms will have to adopt a form of automated content monitoring to meet the requirement for upload filters. This will likely take the form of bots that assess anything that's posted for copyright infringements by comparing the content with databases of protected works. These upload filters will struggle to tell the difference between copyright infringements and legal parodies.

"Commercial sites and apps where users can post material must make 'best efforts' to preemptively buy licences for anything that users may possibly upload – that is: all copyrighted content in the world. An impossible feat," Julia Reda, an MEP from the Pirate Party Germany, explained in a blogpost.

"In addition, all but very few sites (those both tiny and very new) will need to do everything in their power to prevent anything from ever going online that may be an unauthorised copy of a work that a rightsholder has registered with the platform. They will have no choice but to deploy upload filters, which are by their nature both expensive and error-prone.

"Should a court ever find their licensing or filtering efforts not fierce enough, sites are directly liable for infringements as if they had committed them themselves. This massive threat will lead platforms to over-comply with these rules to stay on the safe side, further worsening the impact on our freedom of speech."

Giles Derrington, head of policy at technology trade association techUK, argues that the vote would make it harder for companies to serve European markets and restrict the freedoms of the public.

"Requirements for platforms to filter all user-uploaded content will likely result in a reduced user experience and the over-removal of legitimate content," he said.

"The creation of a new neighbouring right for press publishers will make sharing news articles online more difficult, making it harder for the public to find good quality journalism online."

Critics said the laws would stifle creativity - with Creative Commons chief Ryan Merkley observing that The Beatles would have been prevented from performing cover versions under the proposed rules.

For you and me, it could have resulted in text, music and videos posted to blogs, social networks and comment sections being yanked from the net at point of upload - somewhat like YouTube's controversial Content ID system, on steroids. 

What's next?

Opponents of the legislation haven’t yet given up hope that it will be overhauled. The directive will have to pass a final vote before it becomes law, and even then the courts will have to choose how to interpret the rules.

“While EU negotiators have managed to get this controversial piece of legislation over the line ahead of the European Parliament elections in May, both creative industries and online platforms will have many questions about the practical application of the proposals," said Francine Cunningham, senior public affairs manager at international law firm Bird & Bird.

"In the end, it will likely be up to the courts to decide whether platforms have really made 'best efforts’ to avoid copyright infringement by the users and what 'very short extracts' are excluded from the new press publishers' right."

Michael Gardner, a partner and head of IP and commercial at London law firm Wedlake Bell, told Techworld that if the law is passed it may not affect UK citizens due to Brexit, although British businesses serving the EU market will still have to comply with the terms.

"It is important to note that the new law, if it goes through, would be a 'Directive' –  a piece of legislation that requires member states to implement compliant laws within a period of time - usually around three years," he said.

"The UK will probably have left the EU and completed any ‘transitional period’ by the time this new Directive needs to be implemented. So it is quite possible that for users in the UK, the new laws will not take effect, even if they are adopted by the EU.

"Brexiteers will say this provides an opportunity for the UK to diverge and be a more attractive place for internet companies to do business, free of the EU’s restrictive approach to the internet. With so much uncertainty over the terms of the UK's departure from the EU, it is difficult at this point to know what impact the proposed Directive will have."