This Monday, the final “trilogue” (a meeting between the European Parliament, the European Presidency, and the EU member-states) was supposed to convene to wrap up the negotiations on the first update to the Copyright Directive since 2001, including the controversial Article 13 (mandatory copyright filters for online services) and Article 11 (letting news sites decide who can link to them and charging for the privilege).
But that meeting has been cancelled and now the whole thing is on life-support. If the Trilogue can be reconvened in a matter of days, then it’s just possible that it could finish it work and send a final draft to the Parliament to be voted on, but that’s getting less likely by the second, and a delay of more than a day or two will mean that this is off the table until after the next EU Parliamentary elections in the spring — which is also after Brexit — and which will likely result in a very different landscape for this kind of legislative gift to corporate lobbyists (between the rise of insurgent parties in the EU, and Brexit eliminating the UK MEPs most likely to carry water for companies like EMI and Sky).
Here’s a very short version of how the Trilogue got cancelled and the Directive got put on life-support: back in the spring, Axel Voss, a German MEP, took over the drafting of the Directive, and revived the no-compromise versions of Articles 11 and 13, throwing out years of negotiations in order to give the record industry and aristocratic German newspaper families a huge legislative favour.
This kicked off massive public anger, with more than four million Europeans writing to the Parliament to ask for this to be reversed; it also mobilized some of the top technical experts, copyright scholars, investigative journalists, and many others speaking out against it.
After just barely surviving an unprecedented vote in the Parliament, Voss and his backers scrambled to rescue Articles 11 and 13. The corporations behind the law poured an ocean of dark money into it, while Voss draped a series of tiny, largely ornamental changes over the Directive in order to obfuscate its true objectives.
But the backers of Articles 11 and 13 were hardline, no-compromise copyright ultras who rejected any compromise language. The movie studio and TV divisions of the corporations that had backed Article 13 (through their music-label divisions) denounced Article 13 and called for it to be deleted from the Directive. They had won a ridiculous court victory in Germany and hoped to leverage that into effectively forcing all the internet companies out of business, so they could be turned into subsidiary arms of the entertainment conglomerates, much in the same way that Napster was just absorbed into BMG. Creating a rule that Big Tech could follow, even one as onerous as Article 13, scuttled that plan.
Then, the music industry also denounced the “compromise version” of Article 13, because it had been amended so that it was just barely possible for Google and the other Big Tech companies to actually comply with — the record industry had been hoping to stick Big Tech with an impossible-to-follow rule, and then to use that rule as negotiating leverage to get them to pay more for music licenses (“Now you have to license from us, on our terms, because it is impossible for you to comply with Article 13, and only we can relieve you of the obligation to abide by it”). There are lots of problems with this, but the biggest one is that even after securing permission from the record labels, Big Tech would still be liable to enforcement from millions of other rightsholders.
Big Content’s intransigence was the anvil, but the hammer was ordinary Europeans, leaning on their national governments. A campaign to get citizens of key nations to contact their governments was hugely successful, and the targeted countries let the EU Presidency know that they, too, would not stand for the Directive with Articles 11 and 13 intact.
Faced with both popular anger and corporate backers who had massively overplayed their hands, the EU Presidency threw in the towel, announced that there was no basis for negotiations, and canceled Monday’s trilogue.
This stands a very high likelihood of killing off Articles 11 and 13 for good. As noted above, without a miraculous last-minute reprieve, the trilogue will almost certainly not reconvene until after the elections, and after Brexit, and that’s going to be a very different world.
But the bad news is that as a result of Voss taking the Copyright Directive hostage to serve the parochial interests of German newspaper families and the vice-presidents of the entertainment companies’ music divisions, the EU might not get all the other, noncontroversial, overdue technical updates to its copyright rules, long negotiated and badly needed. This should be remembered come the elections this spring: Voss’s kack-handed attempt to sacrifice free speech, competition, the EU tech sector, and privacy to eke out some marginal gains for special interest groups has been a catastrophe, and it’s all on him.
MEP Julia Reda now has the full breakdown of the votes, noting that 11 countries voted against the “compromise” text: Germany, Belgium, the Netherlands, Finland, Slovenia, Italy, Poland, Sweden, Croatia, Luxembourg and Portugal. That’s… a pretty big list. Reda points out that most of those countries were concerned about the impact on users’ rights (Portugal and Croatia appear to be outliers). That’s pretty big — as it means that any new text (if there is one) should move in a better direction, not worse.As Reda notes, this does not mean that the Copyright Directive or Article 13 are dead. They could certainly be revived with new negotiations (and that could happen soon). But, it certainly makes the path forward a lot more difficult. Throughout all of this, as we’ve seen in the past, the legacy copyright players plowed forward, accepting no compromise and basically going for broke as fast as they could, in the hopes that no one would stop them. They’ve hit something of a stumbling block here. It won’t stop them from still trying, but for now this is good news. The next step is making sure Article 13 is truly dead and cannot come back. The EU has done a big thing badly in even letting things get this far. Now let’s hope they fix this mess by dumping Articles 11 and 13.
EU Cancels ‘Final’ Negotiations On EU Copyright Directive As It Becomes Clear There Isn’t Enough Support [Mike Masnick/Techdirt]