The Text of Article 13 and the EU Copyright Directive Has Just Been Finalised

Julia Reda, MEP, Link

In the evening of February 13, negotiators from the European Parliament and the Council concluded the trilogue negotiations with a final text for the new EU Copyright Directive.

For two years we’ve debated different drafts and versions of the controversial Articles 11 and 13. Now, there is no more ambiguity: This law will fundamentally change the internet as we know it – if it is adopted in the upcoming final vote. But we can still prevent that!

Read on for details about the text, how we got here and what to do now:

What’s in the EU Copyright Directive

Please click the links to take a look at the final wording of Article 11 and Article 13. Here’s my summary:

Article 13: Upload filters

Parliament negotiator Axel Voss accepted the deal between France and Germany I laid out in a recent blog post:

  • 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.
  • 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.
Article 11

Article 11: The “link tax”

The final version of this extra copyright for news sites closely resembles the version that already failed in Germany – only this time not limited to search engines and news aggregators, meaning it will do damage to a lot more websites.

  • Reproducing more than “single words or very short extracts” of news stories will require a licence. That will likely cover many of the snippets commonly shown alongside links today in order to give you an idea of what they lead to. We will have to wait and see how courts interpret what “very short” means in practice – until then, hyperlinking (with snippets) will be mired in legal uncertainty.
  • No exceptions are made even for services run by individuals, small companies or non-profits, which probably includes any monetised blogs or websites.

Other provisions

The project to allow Europeans to conduct Text and Data Mining, crucial for modern research and the development of artificial intelligence, has been obstructed with too many caveats and requirements. Rightholders can opt out of having their works datamined by anyone except research organisations.

Authors’ rights: The Parliament’s proposal that authors should have a right to proportionate remuneration has been severely watered down: Total buy-out contracts will continue to be the norm.

Minor improvements for access to cultural heritage: Libraries will be able to publish out-of-commerce works online and museums will no longer be able to claim copyright on photographs of centuries-old paintings.

* * *

How we got here

The history of this law is a shameful one. From the very beginning, the purpose of Articles 11 and 13 was never to solve clearly-defined issues in copyright law with well-assessed measures, but to serve powerful special interests, with hardly any concern for the collateral damage caused.

In the relentless pursuit of this goal, concerns by independent academics, fundamental rights defenders, independent publishers, startups and many others were ignored. At times, confusion was spread about crystal-clear contrary evidence. Parliament negotiator Axel Voss defamed the unprecedented protest of millions of internet users as “built on lies”.

In his conservative EPP group, the driving force behind this law, dissenters were marginalised. The work of their initially-appointed representative was thrown out after the conclusions she reached were too sensible. Mr Voss then voted so blindly in favour of any and all restrictive measures that he was caught by surprise by some of the nonsense he had gotten approved. His party, the German CDU/CSU, nonchalantly violated the coalition agreement they had signed (which rejected upload filters), paying no mind to their own minister for digital issues.

It took efforts equally herculean and sisyphean across party lines to prevent the text from turning out even worse than it now is.

In the end, a closed-door horse trade between France and Germany was enough to outweigh the objections… so far.

What’s important to note, though: It’s not “the EU” in general that is to blame – but those who put special interests above fundamental rights who currently hold considerable power. You can change that at the polls! The anti-EU far right is trying to seize this opportunity to promote their narrow-minded nationalist agenda – when in fact without the persistent support of the far-right ENF Group (dominated by the Rassemblement/Front National) the law could have been stopped in the crucial Legal Affairs Committee and in general would not be as extreme as it is today.

* * *

We can still stop this law

Our best chance to stop the EU copyright law: The upcoming Parliament vote.
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The Parliament and Council negotiators who agreed on the final text now return to their institutions seeking approval of the result. If it passes both votes unchanged, it becomes EU law, which member states are forced to implement into national law.

In both bodies, there is resistance.

The Parliament’s process starts with the approval by the Legal Affairs Committee – which is likely to be given on Monday, February 18.

Next, at a date to be announced, the EU member state governments will vote in the Council. The law can be stopped here either by 13 member state governments or by any number of governments who together represent 35% of the EU population (calculator). Last time, 8 countries representing 27% of the population were opposed. Either a large country like Germany or several small ones would need to change their minds: This is the less likely way to stop it.

Our best bet: The final vote in the plenary of the European Parliament, when all 751 MEPs, directly elected to represent the people, have a vote. This will take place either between March 25 and 28, on April 4 or between April 15 and 18. We’ve already demonstrated last July that a majority against a bad copyright proposal is achievable.

The plenary can vote to kill the bill – or to make changes, like removing Articles 11 and 13. In the latter case, it’s up to the Council to decide whether to accept these changes (the Directive then becomes law without these articles) or to shelve the project until after the EU elections in May, which will reshuffle all the cards.

This is where you come in

The final Parliament vote will happen mere weeks before the EU elections. Most MEPs – and certainly all parties – are going to be seeking reelection. Articles 11 and 13 will be defeated if enough voters make these issues relevant to the campaigns. (Here’s how to vote in the EU elections – change the language to one of your country’s official ones for specific information)

It is up to you to make clear to your representatives: Their vote on whether to break the internet with Articles 11 and 13 will make or break your vote in the EU elections. Be insistent – but please always stay polite.

Together, we can still stop this law.

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