The European Union has approved the final form of its controversial Copyright Directive (PDF link). This revision of EU copyright law is intended to bring it current with the Internet age, but some of its provisions have proven quite controversial.

The Meme Ban

Of most interest to ordinary Internet users is Article 13, which has raised the concern that it might amount to a “meme ban.” This provision basically states that “online content sharing service providers and right holders shall cooperate in good faith in order to ensure that unauthorised protected works or other subject matter are not available on their services.” It also lays down some terms for licensing agreements for such content to appear online.

Wired UK’s explainer of the law notes:

The reason why this article has been dubbed the “meme ban” is that no one is sure whether memes, which are often based on copyrighted images, will fall foul of these laws. Proponents of the legislation argue that memes are protected as parodies and so aren’t required to be removed under this directive, but others argue that filters won’t be able to distinguish between memes and other copyrighted material so they’d end up being caught in the crossfire anyway.

And the EU Parliament’s Twitter claims that “Freedom on the internet, as in the real world, will continue to exist. Memes, GIFs and the snippet are safe and various other protections are inserted.” It doesn’t go into any detail about what it means, though.

Of course, while the law does say that rights-holder and Internet provider cooperation shouldn’t affect the availability of non-infringing works and those covered by copyright exceptions, it doesn’t exactly lay out any clear methods for determining the difference.

In the USA, the Digital Millennium Copyright Act does provide an explicit “safe harbor” provision—recognizing that pre-posting filtering could be more than many content providers can easily do, it allows Internet services to avoid penalty as long as they promptly remove infringing content as soon as they’re notified of it. However, this EU code seems to suggest Internet sites should be taking a more pro-active stance.

In some cases, that won’t be anything new. YouTube already does take a more proactive stance, with content filters that automatically block or monetize any infringing content. But we also see the problem with that kind of thing—it leads to an egregious number of false positives as the filtering fails to take fair use into account. Many YouTube users have to contend with their videos being automatically restricted even though the snippets of content they’re using should fall within the auspices of fair use—and that’s not even counting the times when officious rights-holders choose to prosecute obvious fair-use cases.

If this law passes, will Internet sites start proactively filtering content and blocking memes? That still remains to be seen. But it could at least be a worry—especially if Europe starts trying to enforce the law against ISPs located in other parts of the world. It was able to make the American Project Gutenberg block German IP addresses, after all.

The Link Tax

The other worrisome provision of the new Copyright Directive is Article 11, which requires news aggregators such as Google News to pay publishers when they use snippets of publisher content on their platforms. The law doesn’t apply to cases where links are used with titles and no additional text, but most aggregators throw in at least a sentence or two of content to give browsers some idea of what the story is about. (Also, the law only applies to commercial sites, not personal use—so your RSS reader that shows snippets of article text should be safe.)

It’s a little surprising that the EU is even trying this. What do they think is going to happen? As Nate Hoffelder noted at The Digital Reader, Google has wrestled with laws of this nature in individual countries before, such as Germany and Belgium. When required to pay for snippets or links, Google simply stopped showing snippets or links from any news site that wouldn’t agree to provide them for free. And then a funny thing happened—those particular news sites saw their traffic fall by so much, it wasn’t too long before they went frantically to Google, hat in hand, to agree to provide that content for free so Google would start linking it again.

I suspect we’re about to see history repeat itself. Based on past behavior, if Google can’t show something for free, it’s not going to start paying for it—it’s just going to stop showing it. And before too long, any sites that see their traffic fall off will probably be begging Google to take them back for free.

One interesting note is that the article says member states should make sure that the authors get their cut of any extra money that publishers get from these fees. Well, I guess that’s nice—especially for writers who are on salary, or were paid on a work-for-hire basis. I wouldn’t count on there being too many of those fees to go around, though.

Does the Future Look Bleak?

Just because the bill has been finalized doesn’t mean it’s a law yet, though. The Electronic Frontier Foundation notes that it’s probably going to come up for a vote in March or April—right before the Parliamentary elections in May. And, the EFF points out, it’s already proven to be pretty unpopular, with over four million signatures on a petition against it. If European voters can keep the pressure on their individual members of parliament, and advise them that if they vote to pass it, those voters will be voting against them, it’s possible it might just have to go back to the drawing board.

In any case, bringing copyright current with the Internet age isn’t entirely an undesirable goal. Many of the biggest controversies surrounding American copyright law in recent years have stemmed from analogue copyright laws not making adequate provisions for digital realities. If we could get some new laws written that reflect the way things work now—such as not treating transient copies made in the process of moving files from one place to another as copyright violations—then things might be better for everyone.

The problem is, any such American attempt will suffer from the same things this European one has—too many big-moneyed content-industry interests mashing their fingers down on the scale, tilting the balance of any change away from respecting individual rights and heavily in favor of them. Individual consumers just can’t match well-funded lobbyists when it comes to greasing the wheels of political power. The most we can really do is try to slow them down—as we seem to have accomplished with copyright extension legislation over the last twenty years. But let us try to propose laws that move the balance back toward us, and surely that money will come out in opposition.

In any case, this seems like a textbook example of a bad copyright law. Hopefully our European friends can make their discomfort known strongly enough to shut it down.