Now that we have moved from discussion about leaked documents of the TPP to being able to read and argue about the actual agreement, it was time for a new leak to keep us entertained and outraged. This week we got just the fix that we were jonesing for.
On Thursday, November 5, IPKat (a blog that has covered patent, copyright and other IP issues for over a decade) released an online copy of a leaked draft report to the European Commission (the executive branch of the European Union). The report was prepared by a working commission (hereafter referred to as "the commission" with a small C to distinguish it from the European Commission itself) on copyright issues in the European Union in the digital age.
The report summarizes the issues that the commission believes need to be addressed by regulation or legislation. It serves as a sort of roadmap to what the recommendations and plans of the commission will be in its final report due in December.
In a nutshell, the commission appears to have an inflamed case of labio-gluteal fusion: that is to say, their lips are welded to the asses of major content producers (record companies, film companies, publishing houses, etc.). Their report starts off with a nod to the directive from the EU president which is supposed to guide their work:
… aim is to achieve a wide availability of creative content across the EU, to make sure that EU copyright rules continue to provide a high level of protection for right holders, and to maintain a good balance with other public policy goals, like education and research, in the digital environment.
And that is pretty much the last we hear about wide availability and other public policy goals in the report: they're off to the races with the truly important objective in that quote, protection for rights holders.
Much of it deals with harmonizing the various rules, laws and regulations about copyright in the EU. At the moment, much of copyright law is enacted at the member nation level and there are often some significant differences between the laws of each nation. That stuff is internal to the EU and needn't concern us much at this time.
The bigger issue, even to those of us outside the EU, is the direction the commission takes in terms of what is known as ancillary copyright. Ancillary means secondary or auxiliary, so in this sense it more or less means second-level or second-hand. You may have heard about some countries where artists maintain some right to their work even after they sell it; if the buyer someday sells it yet again, the artist is entitled to a portion of the proceeds. That's similar to what this brouhaha is about.
The main points of contention are that it appears the commission wants to extend the rights of content owners to go beyond simple claims against direct infringers (for example, someone who uploads a video to their web site and lets others download it). They want to extend the level of responsibility further to anyone who may indirectly infringe: a sort of friend-of-your-friend thing.
An example here at Daily Kos would be my very own article that you are reading right now. In it, I link to IPKat's blog. Now, I don't know if IPKat has any copyrighted material of other people on the blog, but if so, Daily Kos could be held in violation of copyright laws because of the link to IPKat, not because DK itself had the copyrighted material. It's guilt by association rather than by active participation.
Additionally, in a bizarre twist, it seems they would want to hold the linking site responsible for permission (and payment) for linking to copyrighted material owned by the linked site. In other words, if my diary here linked directly to an article on the UK's The Guardian newspaper site, I or Kos would need to get the permission of The Guardian, even though the link would take the reader to its own site to read the article. It defies the imagination.
The danger to the internet? Imagine if every site were responsible not just for the content on its own site but for all of the content on every site to which it has a link. Even if Kos spent 24 hours per day checking the content at every site to which all of the articles here link, he would have to go back and check them again tomorrow and the next day and the day after that forever. If they were 'clean' today, he could still be held accountable for infringing content if one of those linked sites stored some copyrighted material any day in the future.
Then Kos would also need to contact the linked sites and ask their permission to link to them. If they agreed, he would need to pay them if they request it.
That would break the internet. Nobody would dare link anywhere and every web site would become an island to itself with no external links. Search engines would more or less just need to shut down entirely because they undoubtedly would link to infringing sites, even if it was just granny's homepage and she had uploaded a cute kitten photo without permission.
My first reaction was that even if the EU adopted such an insane law, it would stop at Europe's borders. Legal analysts disagree however. Through treaties and trade agreements (move over TPP, TAFTA and TISA are going to be even worse), the EU could enforce its draconian law in non-EU countries as well. In short, it would jeopardize our internet, not just theirs.
It's a very complex issue to understand. For one thing, the leaked report doesn't even mention links and HTPP and the like. It does, however, use terms and phrases that refer to previous EU court decisions and laws in a way that makes it clear to those who are knowledgeable that it wants to apply those rulings to internet inter-linkages.
EU Member of Parliament, Julia Reda of Germany, has an extensive article about the ancillary copyright issue and this report. Lisa Brownlee, at Forbes Magazine, takes us on an exploration of the legal reasoning used to arrive at the conclusion that enacting the commission's recommendations would indeed turn the simple hyperlink into a ticking time bomb for web sites. IGEL, the Intiative Against An Ancillary Copyright, also has a discussion of this issue. They are must reads if you want to understand both the complexity and potential dangers of this issue.
Note: it's suddenly pouring down rain which means my electricity could go out at any moment; if I fail to respond in comments, assume I'm twiddling my thumbs by candlelight.