The Article Nobody Loves (as it is)

It started so optimistically. What if the European legislators could fix some of the problems of the online world? Copyright was first in line when tech and telecom companies began to disrupt value in different sectors. That list has grown very long over the years, but it makes sense to start with copyright if you want to fix the internet. There was no lack of issues: pirate services run by organized crime. Platforms harvesting data and revenue without taking any risk, refusing to put effective protection in place. Different terms for the same services. Erosion of value and income. Money moving from smaller businesses to tech monoliths. And not least creators’ rights abused left, right and center. The case for intervention was strong. Enter Article 13 of the Copyright Directive.

Looking back, maybe the threat was obvious – big tech hoodwinks and maneuver, soft power some call it. The process of negotiation in the EU institutions and at home in the member states. The pressure from technology and internet groups, selling the myth of the “free internet” (whatever that means). The astroturfing. What was meant to fix the problems, now rather looks to create new ones. Article 13, as it reads in the most recent leak, introduces new safe harbors for intermediaries, talks about “best efforts” and brings new exemptions. It does not help to fix the problems it set out to do, but creates new ones. An opportunity lost. In it’s hijacked current form, watered down form meaningful protection for creators, means almost no one loves Article 13 anymore. Tech and telecoms do everything in their power to stop it, obviously, not stopping short of blacking out Wikipedia in protest. (Yes, I know, Wikipedia is independent, at least in name.) Now, also the creative industries say it’s better to bury it than get 8-balled by shoddy outcomes.

When the negotiations started, there was no ruling from the EU’s Court of Justice on how copyright should be squared with the intermediary privilege in the E-commerce directive (protecting “information society services” from liability for what users do, read more here). But during the process, a case has reached the top court. Can justice succeed where policy failed? Let’s hope so, but whatever happens, policy-makers will have to do more work on making the internet work for everybody. Copyright was first, but only one aspect of a much bigger problem. The internet is too important to let Big Tech and utopians call the shots.

UPDATE: The trilogue negotiations on the copyright directive that were scheduled for today have been postponed