EU Copyright Directive

In July 2018, the European Parliament saw a surprise result on the vote for the hotly debated Copyright Directive. The Directive of the Digital Single Market was intended to be a straightforward update to copyright law for the digital age, but crossed the line into censorship and disproportionate mass surveillance, with the inclusion of Article 11 the ‘Link Tax’ and Article 13 ‘Upload Filters’. It was the responsibility of Mr Axel Voss, a German MEP from the conservatives/EPP group, to build consensus in Parliament on the report.


Following an effective public awareness campaign, members of every political group came under pressure from constituents around the continent, and enough members of the largest party (Conservatives/EPP) broke rank to vote against the controversial legislation. While 278 MEPs were happy to rubberstamp it for trialogue negotiations, 338 MEPs objected and voted to subject the legislation to amendments.


On Wednesday 12th September 2018, the Copyright Directive came before Parliament for a second time. This time, MEPs were allowed to submit amendments as normal. A number of amendments to Articles 11 and 13 were tabled by opposition parties but were unfortunately voted down by the Conservatives/EPP in favour of an unsubstantial cosmetic changes tabled by their own MEPs.


Article 11

The purpose of this Article is to reclaim lost income for press publishers whose subscriptions, ad revenue and newspaper sales have suffered in the digital age. It creates a neighbouring right for publishers but the wording adopted leaves a lot of ambiguity over what we consider to be factual information for the public good, and what we considered intellectual property which should be protected.

I was prepared to support a number of compromise amendments to Article 11 including alternatives from Green, ALDE, S&D and even EPP members. The only purpose of Mr Voss’ amendment was to give political cover to his colleagues who opposed him the first time around. Very little has changed here since July. The defeated amendments would have introduced the ‘presumption rule’ to deal with a common issue faced by publishers, whereby they cannot provide definitive proof that they hold the rights to a material, despite it appearing in their publication. This mechanism would have removed the burden of proof on the publishers without the need to create a new neighbouring right, the side-effects of which have not been assessed properly.


Proponents of the directive will claim that quality journalism is integral to democracy and requires financial support.  I agree with this sentiment, but I challenge the assumption that established press publishers have a monopoly on quality journalism.  Coverage of this debate in Europe was scant in the Irish media. An article published in the Sunday Independent (16 Sep 2018), whose parent company stand to benefit financially if the Directive if passed, provided the following analysis:


“Fine Gael were in favour of it, which should be a bad sign, as they know nothing of art, but then campaigning artists such as Eleanor McEvoy were also in favour of it. Which was good enough for me.” - Sunday Independent

On the flipside, some of the most enlightening discussions on copyright reform are taking place in online communities and it is in these spaces where the free flow of information is now under threat.


Article 13

This Article requires that all contend be checked for copyright infringement, before it is uploaded to a platform. Alternatives were voted on by MEPs, but again, only Mr Voss’ amendments were accepted. While his amendment removed the direct reference to ‘content recognition technologies’ it does not change the reality that by making platforms liable for the content users upload, they are still, in effect, making upload filters compulsory.

 The side-effects of this article are well documented. In essence, the basic argument is that until computers develop a sense of humour, the best algorithms in the world will incorrectly block content that is permitted under fair use, parody, satire etc. The closest comparable technology currently in operation is YouTube’s Content ID system, which regularly misidentifies and blocks legitimate content.

The Conservatives/EPP enlisted the help of musicians and artists to argue for the inclusion of this Article, but I have not heard one good explanation as to why the implementation of upload filters are necessary to generate income for artists. Why, if the upload filter technology is so good, could it not be used after uploading? Surely it would still be able to catch instances of copyright infringement, without taking this huge risk with people's freedom of expression.


What's Next?

The file now goes to trialogue negotiations between the Parliament, the European Council and the European Commission. For insider updates on the trialogue process, follow MEP Julia Reda (@Senficon on twitter), shadow rapporteur for the Greens. Early next year, MEPs will have one final vote; to approve or reject the Directive. Arguably, since there are no sham amendments to hide behind, and since it's a simple yes/no vote, we have a better chance of stopping this. 

It is unfortunate that I am in a position where I feel I have to vote against the entire Directive, as there are many fair, reasonable and much-needed measures included as well regarding fairer remuneration for artists. I truly regret that the conservatives were not prepared to compromise. I’ve been on the receiving end of some criticism from some Irish musicians, who are understandably keen to see reform in this area, but I appeal to artists not to allow conservative politicians trade off the goodwill your fans feel towards ye, to clamp down on freedom of expression for us all.


The final compromise text agreed between the Commission, Council and Parliament’s rapporteur has emerged and not enough has changed for me to vote in favour. The widespread installation of upload filters would have an extremely damaging effect on freedom of expression and the ability of online communities to share and enjoy legal user generated content. I have made another video update urging people to contact their MEPs in the hoping of stopping the directive at Plenary. This vote is likely to take place either in the last week of March or the third week of April.

In the meantime, politely encourage your MEPs to vote against Article 13. A website has been set up where MEPs can publicly indicate their opposition:

Diarmuid Hayes