The completely rational take you need on Europe approving Article 13: An ill-defined copyright regime to tame US tech

Confusing rules aim to spread the wealth... in two years' time

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All your memes aren't belong to us

For what it's worth, the ability of people to share memes and the like will remain unimpeded: "...uploading memes and other content generated by users for purposes of quotation, criticism, review, caricature, parody and pastiche (like GIFs or similar) will be specifically allowed," according to the European Commission.

In a blog post, the Wikimedia Foundation's Jan Gerlach, senior public policy manager for legal issues, and Allison Davenport, technology law and policy fellow for legal issues, said, "We believe that this is a disappointing outcome, the impacts of which will certainly be felt for years to come."

O'Brien, in an EFF blog post, called the law "disastrous" and decried EU lawmakers for abandoning common sense and the advice of academics, technologies and human rights experts.

But really, it's Articles 15 and 17 that have critics up in arms. The rest of the Directive includes some changes for the better.

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The Wikimedia Foundation welcomed protections that will keep public domain works uncopyrighted even after they're digitized and will allow researchers and cultural institutions to conduct text and data mining on lawfully accessible works.

O'Brien acknowledged that the Directive helpfully clarifies the law on the scraping of public data and sets up some welcomed remuneration for authors. If not for Articles 15 and 17, he said, "many of the critics of the directive would be on the other side."

Despite the EU Parliament vote, there's another vote coming up: a majority of EU member states now need to approve the final text when representatives meet next month. And after that, the Directive needs to be implemented by each member state, and those implementations may not be the same.

O'Brien said that given how many political parties in Europe were divided about this, some countries will try to implement it with as light a touch as possible while others will skew toward the more draconian interpretation advocated by the rights holder lobby.

"If that happens, it's going to be the most harsh regime that ends up being the default," said O'Brien.

The real problem with Articles 15 and 17, as O'Brien sees it, is that these rules attempt to address the dominance of US tech companies through copyright rather than antitrust law. This is a misstep he attributes to the deference copyright law has received since the internet became a popular medium.

"What this is really trying to address is the market dominance of companies like Google and Facebook," said O'Brien. "I really wish the EU had concentrated on pursuing those companies through antitrust and anti-monopoly actions rather than trying to use copyright which affects everyone."

Now, a two-year countdown begins before EU countries turn the Directive into national law. And during that time, expect advocacy groups to challenge the requirements in court. ®

Bootnote

Evidently, some Swedish politicians pushed the wrong button to record their votes on the Directive. They intend to amend the legislative record with their intended choices though it won’t make any difference: once a vote button is pressed, it’s recorded, right or wrong.

And even if a do-over were allowed, the result would still be one vote shy of deleting Articles 15 (13) and 17 (15) from the Directive. So close, and yet so far.

Updated to add

Make that 13 MEPs who now say they voted the wrong way, not that would it have made a direct difference. And the votes must stay as cast. In any case, there's still two years of further wrangling to go, anyway.

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