The European Parliament, the Council and the European Commission has now agreed a compromise text for the EU copyright directive and the process has entered into its final phase in which it will either be adopted or rejected by a plenary session of MEPs.

The tweet from the EU Commission announcing the outcome of the final trilogue negotiations to arrive at the final version of the directive made everything seem very positive:

Surely there's nothing objectionable about the EU's legislation for making:

"copyright rules fit for the digital era"

Ostensibly the aim is to ensure that rights holders, including those who create film, music, literature and informational text, including journalism, are properly remunerated when their work is used by others and this must be a good thing. However, once you start looking into the effects this will have you can see the problems.

It was only a week ago when we last reported our concerns, see EU Copyright Directive Article 13 Now Worse Than Ever and nothing has changed since then - or has it?

The Press Release issued by the European Commission includes three bullet point that suggest that concessions have been made:

• Some uploaded material, such as memes or GIFs, can be shared freely
  
• Hyperlinks to news articles, accompanied by “individual words or very short extracts” can be shared freely
• The directive will not impose filters

The Q and A document that the commission has produced to allay our concerns  gives similar reassurance - but can we rely on it? For example, while it states:

The directive as agreed has specific provisions which oblige member states to protect the free uploading and sharing of works for the purposes of quotation, criticism, review, caricature, parody or pastiche. Most obviously this will ensure that memes and Gifs will continue to be available. The provisions actually ensure that they will be even safer than before because previously protection for such works was afforded by different national laws.

who is going to arbitrate what the purposes are for uploading and sharing. Similarly there are questions regarding the length of a "very short extract". 

And while the directive doesn't mandate upload filters, Julia Reda's interpretation of Article 13 is that:

• 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.

Reda's commentary on Article 11 is:

• 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.

Another vociferous opponent, Communia, says in its reaction to the news that:

After three days of negotiations, the negotiators have agreed on a text that would benefit big corporate rightsholders, Google and other dominant platforms at the expense of users, creators and the rest of the European internet economy.

With regard to Article 11, in particular, Communia's verdict is:

 benefits dominant platforms who can afford compliance while creating additional costs and risks for smaller players. As a result, users will likely end up with less access to information and the diversity of information available online will likely suffer.

One concession that is very welcome to programmers is that  "open source software developing and sharing platforms" such as GitHub are exempt from the provisions of Article 13.

Another exemption to the entire Copyright Directive has been made for Wikipedia - but is this really fair on its smaller competitors such as online encyclopedias and sites like I Programmer, which contain a lot of informational content but could be construed as commercial? It have been would be nice if exemption could have been made as well for information sites with a revenue less than a specified limit.

As writers on programming and technology, you would think that we would welcome these new rules - but we don't. Currently the rules limit what we and others are prepared to risk simply because they are vague. What sense is there in saying GIFs are OK or that open source repositories such as GitHub are OK? This demonstrates only a very limited grasp of technology and the overall situation. If a GIF is ok what about a JPG or a PNG? What flavour of open source is OK? And of course the big question - what is a snippet? A tweet? A sentence? Part of sentence or as the rules suggest a single word?

This isn't just bad law, it's embarrassingly bad. We can only hope that the European Parliament realizes this in time for the final vote in March or April.

If you are in the EU and agree with that: 

More Information

Press Release - Agreement reached on digital copyright rules

Questions and Answers on issues about the digital copyright directive after 13 February deal

Jula Reda's blog post

Final countdown on Article 13: here is how bad it really is

GitHub blog post  

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