This Monday, the closing”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 contentious Article 13 (mandatory copyright filters for online services) and Article 11 (letting news websites 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 few days, then it is just possible that it might complete it work and send a final draft to the Parliament to be voted on, but that’s getting less probable by the moment, and a delay of more than a day or two will indicate 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 lead to a very different landscape for this kind of legislative present to corporate lobbyists (between the rise of insurgent parties in the EU, and Brexit eliminating the UK MEPs most likely to carry water to 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 discussions in order to give the record business and aristocratic German newspaper families a huge legislative favour.
This kicked off enormous 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 lots of 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 a sea of dark cash into it, while Voss draped a string of miniature, largely ornamental modifications over the Directive so as to obfuscate its true goals.
However, 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 businesses that had endorsed 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 expected to leverage that into effectively forcing all the internet companies out of business, so that they might be turned into subsidiary arms of the entertainment conglomerates, much in the same way that Napster was just absorbed into BMG. Developing 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 was amended so that it was just barely possible for Google and the other Big Tech firms to really comply with — the record industry was hoping to adhere Big Tech with an impossible-to-follow rule, and then to use that rule as negotiating leverage to make them pay more for music licenses (“Today you have to license from uson 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 tons of problems with this, but the biggest one is that after securing permission from the record labels, Big Tech would still be liable to enforcement from tens of thousands 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 understand that they, too, wouldn’t 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 discussions, and canceled Monday’s trilogue.
This stands a very large likelihood of killing off Articles 11 and 13 for good. As noted above, with no miraculous last-minute reprieve, the trilogue will almost certainly not reconvene until after the elections, and after Brexit, and that’s likely to be a very different world.
However, the bad news is that as a result of Voss carrying 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 may 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 industry, and privacy to eke out some marginal gains for special interest groups continues to be a catastrophe, and it is 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 is… a pretty big list. Reda points out that most of those countries were concerned about the impact on consumers’ rights (Portugal and Croatia appear to be outliers). That is pretty large — as it means that any new text (if there is one) should proceed 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 discussions (which could happen soon). However, it certainly makes the path forwards far more challenging. Throughout all of this, as we’ve seen in the past, the heritage copyright players plowed forward, accepting no compromise and basically going for broke as quickly as they could, in the hopes that no one would stop them. They have struck something of a stumbling block . It won’t stop them from still stressful, but for now that is great news. The next step is ensuring Article 13 is truly dead and cannot return. The EU has done a big thing badly in letting things get this way. Now let’s hope they fix this mess by dumping Articles 11 and 13.
EU Cancels’Closing’ Negotiations On EU Copyright Directive As It Becomes Apparent There’s Not Enough Support [Mike Masnick/Techdirt] #mc_embed_signupbackground:#fff; clear:left; font:14px Helvetica,Arial,sans-serif; width:100%; #mc-embedded-subscribe-form input[type=checkbox]display: inline; width: auto;margin-right: 10px; #mergeRow-gdpr margin-top: 20px; #mergeRow-gdpr fieldset label font-weight: normal; #mc-embedded-subscribe-form .mc_fieldsetborder:none;min-height: 0px;padding-bottom:0px; #mc-embedded-subscribe-form input[type=submit]background-color: red; color: white;