1. What first consequences of this decision will be felt by European citizens?
Could you give us an example that involves an average individual user and another involving small enterprises?
The most controversial Articles of the Directive are Article 15 (ex-Article 11) and Article 17 (ex-Article 13). Both will have negative effects for both the individual users and the small and medium enterprises.
Initially, as regards the individual user of the internet, both Articles affect our fundamental freedoms of expression and access to information, while the implications of Article 17 may as well extend to our right to privacy.
In other words, news will only be publicly available if the licensing schemes between news publishers and platforms allow, while information and data uploaded online will be subject to automatic filtering if they do not fall under the common licenses.
This means that the information will be blocked a priori only because of the suspicion of the illegal content. If the content uploaded is indeed legal, the user may proceed in an objection and solely the platform would be able to judge accordingly.
Furthermore, as regards the SMEs, they will also have to encounter the disproportionate outcomes of this Directive.
First, as regards Article 15, their freedom to conduct a business means that platforms are not obliged to buy licenses by anyone.
Therefore, small publishers may not be able to sell their licenses to big platforms, hence, they will have to give away their licenses or agree to disproportionate settings.
Similarly, small platforms may not have the economic capacity to buy licenses by the bigger publishers and collecting societies of such publishers. As a consequence, they will not be able to compete in the associated market.
Moreover, as regards Article 17, once again, small and medium enterprises may find themselves lacking the necessary economic and human resources to acquire licenses for all content and to prevent all copyright infringing content from their platform, since they will require such resources to build or buy any technology that could do that sufficiently.
2. Internet giants claim that this decision works against their financial interests. Google has made critical comments through YouTube and supports the #SaveYourInternet campaign.
Supporters of the Copyright Law claim this as evidence that it serves the interests of the people. And yet it has been firmly established that internet giants will benefit financially and consolidate their position even further.
How, then, would you explain this issue to the people trying to make some sense of all these contradictory claims?
Of course I understand the frustration caused by this confusion. Unfortunately, this is indeed a paradox and any effort to make a sense out of it might lead to more confusion.
As you already mentioned the advocates of Articles 15 and 17 claimed that through these provisions they can set limits to the big platforms and make them pay from what they earn.
On the other side, such platforms have such a market power that they may easily not be affected by the new law. For instance, in Germany and Spain a law similar to Article 15 did not stop Google from getting free licenses by the publishers.
in Germany, Google acquired free licenses by publishers, while in Spain, Google news shut down reducing the visibility of the respective righholders.
Furthermore, as regards Article 17, we already said above that such big platforms do and will have the necessary economic capacity to respond to the responsibilities set, meaning the acquisition of licenses from large rightholder organisations and the development of filters.
Of course now they will have a new stream of revenue via the technologies they will be able to sell to those who do not have the necessary human or financial resources.
Of course, the fact that they have the ability does not mean that they are in favour of a law mandating these responsibilities.
For instance, Google was already running ContentID on YouTube. However, they did so based on their Terms and Conditions.
Therefore, this reaction against the new law is not completely irrelevant. What needs to be clear though, is that the reasons behind the opposition of big platforms and the civil society are entirely different. The first are fighting for market power and the second for human rights!
3. Is there something to expect from the next European Parliament? Can it revisit these issues and change the relevant articles?
There is no certain answer I could provide you for that. This depends on the next Members of the European Parliament.
Even in this case, the EP can only make a recommendation or vote an own-initiative report highlighting the issue to the Commission, who is the only responsible institution to initiate a change in legislation.
It is very unlikely that the European Commission will re-open the Directive during the next term.
However, it is more likely that it will re-open older Directives, such as the E-Commerce Directive, or that they will make proposals for new Directives and Regulations the scope of which would be to regulate the internet and its platforms. Now that the limited liability of platforms has been called into question for copyrighted content, more proposals to make platforms directly liable for the actions of their users are likely to follow. This is a grave danger to the Internet as a medium of many-to-many communication, as the legal risks of running communication infrastructure such as online platforms would increase substantially. The new Parliament will have to fight against the abolition of the limited liability for hosting service providers.
4. What are the next steps for you and the political pressure groups that have formed around this issue? Is this all finished? Or what will the next moves be?
This is not yet finished and it won’t be for the next two years. First of all, the Council still needs to vote on the decision of the Parliament. This vote will take place on the 15th April by the Agriculture ministers in the Council.
If the Council votes in favour, the member states have two years time to implement the law. Therefore, the hope is that member states will choose to implement the law in such a way that is harming the least the users and the SMEs. Civil society groups will have to stay vigilant and fight to limit the damage of the national implementation, while safeguarding important copyright exceptions, such as the one for education. The entertainment industry will not stop its lobbying after the adoption of the Directive and will move its attention to the national level, where it will be important to have a vocal opposition to their demands for a maximalist copyright.
5. Would you say that there are any positive aspects to this law, or none at all?
The proposal for this Directive touched upon different fields affected by copyright law. Therefore, apart from the Article 15 and 17, we have several positive provisions touching upon a variety of sectors affected by law.
Such cases are for instance the exception for education and the exception for cultural heritage institutions. These had some positive developments through the course of the negotiations.
Other positive provisions that we achieved to include in the text include the protection of visual works such as paintings that are in the public domain from privatisation, and an exception for libraries to make available out-of-commerce works online.
At this point, we should also highlight that the law we are discussing is a Directive and not a Regulation, meaning that member states will have some room of manoeuvre when it comes to their national implementation.
Hence, they can choose to implement the provisions in a way that respects their citizens’ fundamental rights. If they fail to do so, civil liberties groups can consider launching lawsuits against the national implementations, to have their compatibility with the Charter of Fundamental Rights tested by the European Court of Justice. In the past, the Court found for example that mandatory upload filters imposed on a social network violate the freedom of expression, freedom to conduct a business and right to privacy.
6. How would you respond to those who claim that the former article 11 (now 15) will help media outlets protect their reporting from unlicensed reproduction or outright plagiarism?
Plagiarism is already illegal, the new right won't change that. Rightholders of news publications already have a copyright for their journalistic works according to the current law.
The new neighbouring right will only be in addition to that and will only extend this right to short snippets of news articles, that will affect the fundamental rights of users, such us their freedom of expression and access to information.
Such would be the case of declaring copyright on a fact or a small extract that is small enough to be exempted from copyright.
This would probably lead to more court cases than actual control of unlicensed content and plagiarism, and as practise has proven already in Germany and France, less visibility and readability. In Germany, not a single cent has been earned for publishers, let alone journalists, as the costs of enforcing the new right have by far eclipsed the revenues it has generated.
7. This is not the only matter of European concern in which vetted financial interests and lobbyists seem to be setting the agenda. What can the European parliament do to fight this? How can we protect the interests of citizens from the interests of multinational giants?
It is true that there are all sorts of lobbies and all of them are seeking to please their agenda. There are organisations that work for the interest of civil society and of course there are organisations who work for the interests of the entertainment industry. Of course the industry has a financial interest and more resources for stronger lobby activity than civil society.
The European Parliament already has a Transparency Register where lobbyists register. Transparency by all parties is fundamentally assisting in this regard. But this alone won't change the imbalance, we also need to find ways to finance the activities of public interest lobby groups such as fundamental rights organisations, and improve the media reporting on European policy issues, to make it clear to politicians that the public is watching them.
The European Parliament could certainly work on the transparency of lobbying in the EU.
But also, considering that the European elections are approaching, all of the citizens, all of us, should be aware of the importance of our vote.
For it is the people who vote for their representatives in the European Parliament, who will be called to work on similar policy topics.
8. The European Parliament will vote later this month on the “terrorist directive Regulation”, on preventing the “dissemination of terrorist content online”. a) Is it possible to do that? And b) how will it affect our freedom of speech rights?
The European Commission proposal for the terrorism regulation is extremely problematic, as it requires all websites where users can upload public material (including blogs with a comment function, discussion forums or Wikipedia) to remove terrorist content that gets notified to them by the authorities within one hour. It also gives authorities the power to force website owners to use automated upload filters to prevent the upload of terrorist content. The European Parliament is going to vote its position on the Directive next week. The responsible civil liberties has improved the protection of fundamental rights by removing the mandatory upload filters from the text, but has maintained the very short 1 hour deadline for the removal of terrorist content. This is a threat especially to small companies and private websites who do not have the time and resources to be available to be contacted day and night, including on weekends, to delete terrorist content within one hour, should they receive a removal order. The likely outcome would be that many small websites would shut down and move their activities to large platforms, for example replacing an independent discussion forum with a Facebook group, because then Facebook would have to take care of the removal of terrorist content. The regulation would thereby strengthen the market power of huge commercial platforms and decrease the diversity of communication channels online. The plenary of the European Parliament can still change the civil liberties committee's position in the final vote – for better or for worse. Our goal will be to get rid of the 1 hour deadline and replace it with a more reasonable obligation to remove terrorist content without undue delay, taking into account the size and resources of the hosting provider. At the same time, we will need to make sure that the mandatory upload filters do not get re-introduced through amendments.