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Internet: the EU's sledgehammer to crack a nut

Nigel Morris-Co...

One can say many things about the EU but here are two: one it really, really does not understand the internet and how companies operate within it and two it really, really likes simplistic and brutal solutions to complex problems. Perhaps the two things are the same. Article 11 of the Copyright Directive, which a European Committee (the usual handful of grey men in grey suits that were so much a reason for Brexit) has just passed is a perfect example of both. The grey men in grey suits are different depending on the topic. The result is the same: they set law which is rarely subjected to effective review later in the legislative process. But protestors have missed the bus: it left in a 2001 Directive that hardly anyone pays attention to.

In "Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society" (http://www.wipo.int/wipolex/en...") the EU passed a series of measures for the protection of copyright material. It has been largely ignored and in many ways it conflicts with the USA's Digital Millennium Copyright Act 1998 (in its original form here: https://www.gpo.gov/fdsys/pkg/...). The irony is that both the US and the EU laws were supposed to implement two treaties, in 1996, agreed by members of the World Intellectual Property Organisation (WIPO).

The WIPO Treaties are "The Wipo Copyright Treaty" - Geneva 20 December 1996 and the WIPO Performances and Phonograms Treaty also agreed in 1996.

The fuss in relation to the draft Directive is, in particular, about Articles 11 and 13.

In relation to Article 13, the debate is largely one between responsibility and anarchy. The battleground chosen by protesters is that of so-called "memes" in which a person takes material which is the intellectual property of another and "overlays" something onto it. We've all seen them: someone grabs a photo of a celebrity or politician and overlays text which very often amounts to false claim that the subject of the image made a particular statement. There are websites which have, as their sole function, the ability to take photos and overlay text onto them.

Once published, such "memes" often take on a life of their own with some seeing what is allegedly a joke and others accepting it as true. Memes are a powerful tool in politics and in UK politics, one circulated for several years with a completely false message about the Conservative party - in fact it was circulated by Labour supporters while Labour had, in fact, been the party that had passed the measure complained of in the meme.

The question of abuse of such material is in part at the heart of the proposals: the original creator of the artwork should be entitled to control over how it is used, regardless of how that use is distributed. The question, this newspaper argues, is not whether there should be control over such but who is responsible for exercising that control. Part two of the debate is that the obligation to ensure copyright protection should fall on the publisher of websites. American websites, in particular, have long waged a battle to argue that they are not publishers although it is increasingly difficult to see any merit in their already thin arguments. The protestors focus on the practicality of monitoring content posted by third parties. In short, the entire "Web 2.0" concept is, they argue, under threat.

So let's look at that: is there any justification for person A to provide a platform for the dissemination of the intellectual property of person B by person C for person B's self-aggrandisement or publicity and for person A's profit? This is exactly what copyright law is designed to prevent. Indeed, copyright law is designed and intended to provide that the originator of intellectual property is the only person permitted to exploit it unless he specifically authorises its exploitation by one or more third parties and only on such terms as he permits.

There are conditions placed upon that: fair use for academic study (not, note, as is commonly claimed by American plagiarists and republishers, to simply say that that is the reason for its re-use). In some cases, it is excused in cases of satire: however, custom and practice if not law (help us find some and we'll cite it and credit you) is that satire is far more than, for example, overwriting a photo of a celebrity with the word "WOW!!" or similar.

So, Article 13 has a serious purpose and intent. But the how has not been addressed. If we take the view that we are where we are and that we cannot roll back to Web 1.x, that "how" must be fully considered. And it has not been.

In relation to Article 11, this newspaper as publishers are horribly conflicted....

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