Article 11 of the EU Directive Should Not Be So Controversial

As many readers know, the EU has been considering various proposals to better protect copyright owners in the European digital market.  In all cases, proposed legislation focuses on large, for-profit platforms that reap substantial revenues by exploiting copyrighted works without license or compensation.  And as usual, the large, for-profit platforms have sought to describe these proposals in hyperbolic terms—as threats to the rights and interests of internet users—rather than what they are:  an end to free lunch for the world’s largest corporations.

In simple terms, the twisted logic alleges that if, for instance, Google has to pay licensing fees for any of the content exploited on its platforms, the internet as we know it will be destroyed.  Fortunately, this kind of overwrought fear-mongering has lost a lot of mojo over the last two years, now that the internet giants have been outed as companies whose practices are antithetical to the pro-democracy values they had pridefully claimed to have improved upon through “disruption.”  

As reported in a guest post on The Trichordist, the apparent large-scale, grassroots reaction against the EU copyright directive online was not exactly manifest on the “Day of Action” asking flesh-and-blood citizens to attend various rallies in Germany.  “A projection based on 15 of the total of 27 events throughout Europe, which attracted a total of around 400 participants, suggests that the maximum number of participants across Europe would be 800, as there were also locations with no shows. Even in the home country of the Pirate Party, Sweden, more precisely in Stockholm, there were only 15 participants,”  writes Volker Rieck. So, one parenthetical irony to this broader narrative is the challenge, unique to this moment, that we must separate the real citizens from the bots making their voices heard on the issues.

Anyone who reads this blog regularly, knows that I think the entire premise that “the internet is the greatest tool for democracy” is untenable nonsense that should never have be taken seriously in the first place.  So, in that regard, “destroying the internet as we know it,” is not necessarily a bad thing, depending on what one means by “destroy” and “the internet.”  But more specifically, it is notbable that among the responses to the Russian-hack/Facebook fiasco of 2016, which ignited the ensuing “tech backlash,” we saw a dramatic increase in paid subscriptions to traditional news sources. (And this was after tech-utopians like Cory Doctorow et al predicted that subscriptions were the kind of “old model” impulses that would be fatal to those institutions.)  

What happened instead was that many people were so shocked by the rampant expansion of utter bullshit—including straight-faced lies being proclaimed from a new White House—that they seemed to lose their taste for “citizen journalism” and rediscovered an interest in sober reportage.  It is in this context, therefore, that I view the criticism by the internet giants and its network of cronies and ideologues, who have opposed Article 11 in the EU Directive, which would create a “publishers right” for the producers and publishers of news.  This adjacent right would allow the major news publishers to negotiate license fees to be paid by major news aggregators. 

Never a qualm about scaring the public, though, opponents to Article 11, many of which are funded by the internet industry, have labeled the proposal a “link tax,” and that is some high-octane spin, implying that individuals or small-scale users would have to pay for hyperlinking to articles.  This is not only untrue, it most certainly would not be “tax,” since taxes are paid to governments and not private entities. 

At present, and still in development, the current draft of Article 11 is designed to apply solely to large-scale, for-profit aggregators of news.  So, a European blogger or not-for-profit organization would continue to hyperlink for free just as they do now, without disruption.  Opponents of Article 11 have cited examples of the “failure” of similar policies implemented in Germany and Spain, but those declarations appear to be overblown or simply misleading.  In Germany, for instance, there is no evidence of success or failure since the legislation itself has been challenged and is still being litigated.  

In Spain, “failure” has been defined as Google shutting down Google News in that country for a period, which is an odd way to interpret what looks a lot more like one corporate giant using its market-dominant position in an effort to bully policy in its favor.  (Truly a “my rules or I’m taking my ball and going home” response.)  Regardless, the Spanish market has apparently rebounded from that initial reaction, and various publishers have negotiated licensing agreements with aggregators other than Google.  

In a future post, I will try to dig into more detail regarding Article 11, but for now, it looks pretty simple.  Creators who produce works want large corporations that exploit those works to pay for the use.  And the parties opposing this proposal are distorting it into yet another (I know I’ve lost count) existential threat to the internet.  Whatever the that means.  

© 2018, David Newhoff. All rights reserved.

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