Each month, one of our members shares with us its views on the copyright debate. This week Carlos Astiz* speaks about the new compromise proposal presented by the Estonian Presidency on Article 13. Have a look!
We have been giving a lot of attention to the EU’s copyright reform and as publishers, we have looked at this mainly from the perspective of “article 11” which creates a new publisher right. But other aspects of the proposed EU copyright reform are potentially as damaging to publishers.
Article 13, for instance, makes online intermediaries directly responsible for any content upload by their users, and requires them to put in place automatic copyright “filters” to prevent any such content being uploaded in the first place. In this context, a “user” is anyone uploading content, from an individual posting a comment to a journalist sharing a photo or a source posting a video. The “intermediaries” are any online services that allow people to upload content and share it online – from blogs to Facebook or Wikipedia, from websites to apps.
Currently, if a user uploads content, the service is only responsible if he is put on notice that the upload contains illegal content. Why would this change matter to news publishers?
Bad news for a free press. The dangers of Article 13 for freedom of expression have been highlighted by over 50 NGOS [here], including Reporters Without Borders and the Freedom of the Press Foundation. As news publishers, I want to highlight that Article 13 harms investigative journalism and the freedom of the press.
As publishers, we support a free and independent news media and rely on the internet to enable freedom of expression and to support journalists’ work. Journalists for example rely on sources they find, analyse and check on the internet, from Twitter to YouTube and blogs. Sometimes this information is shared by people at a risk of antagonising governments or businesses. Article 13, rely on copyright and filters to restrict the availability of that content. Journalists also use Wikis to discover, explore, double-check information. However all these services would fall victim to the new rules.
At a more general level, these rules are bad news for publishers who rely on an open and competitive internet to source, create and disseminate stories to their readers. It’s not clear whether these platforms will just become less open, or whether there will be fewer platforms because of the costs of complying with the new rules, or both. But it will leave us with fewer choices, fewer sources and higher barriers to entry for smaller businesses. Including news businesses who will have to demonstrate to digital platforms like Twitter that their content is fully licensed.
Article 13 is bad for a free press. It is also bad news for our publishing businesses.
As publishers, some of our services make us “intermediaries” in the technical sense. When we allow individuals to post comments, materials or even stories online, we are effectively required to comply with the new rules – make sure everything that is posted is already 100% licensed, make sure we put in place filters to prevent illegal uploads. That is already a significant hindrance on some of our businesses.
Going forward it would mean that every time we embed “user uploaded” content in our news stories, we are liable for that content. The “user” could be a source, another news outlet, a journalist. The content could be a Tweet, a video or even a link. We would become liable for any copyright infringement in all these situations.
Even worse, according to a new version of the text as proposed by the Estonian presidency (and also in a joint proposal by France, Spain and Portugal here) if our online news site our app displays embedded videos from e.g. youTube or Dailymotion, we publishers would have to take additional licences from rightholders and collecting societies. Even though the video platforms already have deals with rightholders, we, as “professional” users, would be excluded from that licence and would have to take a separate one.
To conclude, there is a common thread between article 11 and article 13. Both are unhelpful to innovative, small or digital publishers. Both serve the interests of large incumbent players in stemming the flow of innovative new publishers.