The first copyright law, the Statute of Anne in 1709, started the debate about the interests of rights holders and freedom of expression. The debate has raged ever since, yet each new technology has forced copyright rules to evolve to avoid the existing framework becoming obsolete.
The Commission's new copyright proposal is no exception. EU copyright laws needed updating, mostly coming from an era before the explosion of the internet. However, the Commission has misunderstood the way the internet has changed how people use and access copyrighted work.
The internet fosters individualisation. Anyone can now create a blog, which means newspapers have to fight harder to get their content viewed. Film fans no longer need to wait until a network executive decides to show a film, they can just download it.
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Therefore the key measure of success for any copyright reform is to ensure that people find it easier to discover, access, and pay for legal material while recognising the threat from piracy. The key to defeating piracy is not more restrictive laws, but making them more flexible so rights holders can take advantage of the opportunities afforded by the internet.
The Commission proposals fall well short in this regard. A key example is the new ancillary right for publishers, dubbed by some, myself included, as a 'link tax'. This would ensure that anyone who posts a news snippet of more than 11 words from a news article online has to seek approval from the publisher of the article, even if they have linked to the full article.
This includes the auto-snippets and pictures that appear in Facebook or Twitter links. This is very bad news for media diversity and for consumers, who are accustomed to reading their news online from multiple sources.
It is also terrible for news publishers, who the proposals are designed to protect, as they will no longer have these platforms directing users to their websites. It will also boost so called 'fake news' sites, who won't be subject to these limitations, while 'quality journalism' will be.
Spain and Germany introduced such legislation recently and traffic to news websites dropped substantially, particularly to smaller news outlets. Small news aggregators also shut down, unable to compete against the bargaining power of the big publishers. This highlights another problem with this proposal: It will help big aggregators such as Google at the expense of small European start-ups.
The Commission has also proposed an obligation on websites to monitor everything on their site for potential copyright infringement. This is to address concerns from some in the music industry about lower revenue from platforms such as YouTube, but is fundamentally the wrong approach. It effectively rewrites the rules of the internet to protect one sector and undermines the eCommerce directive which has driven the digital economy in recent years.
Any site that relies on user generated content, including eBay, Wikipedia or even blogs would need licence agreements to operate. They would all need to purchase technology to monitor everything on the site, which can be expensive and is not yet 100 per cent accurate, however the website would be liable for anything that is missed.
While big commercial websites might be able to absorb this risk, it would be ruinous for a start-up trying to develop an innovative business model. It is a retrograde step that puts the interests of rights holders too far above those of the general public.
Neither of these proposals protect rights holders, they do the opposite by making it harder for people to legally access content. If they go through unamended, no one will benefit.