The European Union's new Copyright Directive contains two hugely controversial, poorly drafted and dangerous clauses: Article 11, which limits who can link to news articles and under which circumstances (and also bans Creative Commons licenses); and Article 13, which mandates that all platforms for public communications surveil all user posts and censor anything that matches (or partially matches) a crowdsourced, unaccountable database of allegedly copyrighted works.
The Don't Wreck the Net coalition of online platforms and civil society groups has published a laundry-list of the minimum set of technical fixes that Articles 11 and 13 need to actually be fit for purpose, including some really basic things like defining what a "news story" and "link" are in Article 11's ban on linking to news stories without payment.
The lists of fixes for both clauses are long and detailed, a mark of just how poorly specified and poorly drafted Articles 11 and 13 are (unsurprisingly, as both were rejected by the EU's experts, and left out of the drafting of the Copyright Directive, and were quietly inserted by a single MEP on the day the GDPR came into effect, while attention was focused elsewhere).
But what's even more striking is how different this list is from the actual proposed drafting revisions that have just leaked from the EU, which barely overlap with Save the Net's commonsense list.
As MEP Julia Reda notes, some of the proposed changes actually making Articles 11 and 13 worse:
Council fails to clearly exclude hyperlinks – even those that aren’t accompanied by snippets from the article. It’s not uncommon for the URLs of news articles themselves to include the article’s headline. While the Council wants to exclude “insubstantial parts” of articles from requiring a license, it’s not certain that headlines count as insubstantial. (The Council’s clause allowing “acts of hyperlinking when they do not constitute communication to the public” would not apply to such cases, since reproducing the headline would in fact constitute such a communication to the public.)
The Council continues to want the right to only apply to EU-based news sources – which could in effect mean fewer links and listings in search engines, social networks and aggregators for European sites, putting them at a global disadvantage.
Proposed revisions to Articles 11/13 [Leaked from the secretariat of the Council of the EU]