Controversial Copyright Directive approved by EU Parliament

I've now actually read through the adopted text briefly.

While acknowledging that this is an area where others have far more experience, I've tried to take an open-minded view of the directive, and I think it may not be as bad as many people are suggesting.

For Article 13, with regards to the many concerns about how it would affect startups, if I understand the references correctly, none of it applies to "small" organizations, which are organizations with less than 50 employees and less than €10m turnover or balance sheet total. There's also a somewhat confusing "ensuring that [...] automated blocking of content is avoided."

There is also a requirement that there be a review process that:

• includes human review
• is done without undue delay
• requires right holders to "reasonably justify their decisions to avoid arbitrary dismissal of complaints"
• does not identify individual users (perhaps to avoid the DMCA "respond and we'll sue you" situation?)
• includes the ability of users to bring any dispute to an independent body, and to court
• includes "use of an exception or limitation to copyright rules"

On the other hand Article 13b appears to essentially ban image searches!?

Article 11 also seems to be being heavily misrepresented:

• The text repeatedly states, in the recitals and the text itself, that it isn't meant to apply to hyperlinks, and excludes them.
• The text also excludes "private and non-commercial use of press publications by individual users"
• Article 2(4) excludes scholarly publications from Article 11 altogether: they aren't considered "press publications."
• The recitals point out that the protection also does not include facts, so linking to an article along with a summary that you wrote would seem fine.

It appears that the real motivation of Article 11 was to combat specific uses of parts of news articles by services, where the example is less one of a search, and more of a shared article on Facebook. And from a certain perspective, I can see how such uses could be somewhat worrying. One could argue that the true goal of showing such posts on many services has moved away from pointing out the articles to others, and more toward keeping users on the site by using content from the article. Facebook posts show text snippets, extracted photos, and a convenient comment section: one could argue that this is not really a link to the article, but a minor article in itself, copied from the original. One can see this even more clearly, I think, in elements of Reddit's redesign, where clicking on posts (also with extracted photos) no longer goes to the linked article, but instead to the comments: there seems to be an attempt to discourage actually going to articles.

Of course, this phenomena has existed for a long time: not reading the article was a common theme in Slashdot comments, for example. Yet that was different: they were posts of text written about the article, along with a link to it. That would not be covered by Article 11. New uses could be seen as more frequently just generating an attractive post out of articles themselves.

There are also some other interesting parts of the whole directive that aren't being covered nearly as much (one could speculate as to why, but it would be wild speculation)

• Article 3 creates an explicit right for research, educational, and cultural organizations to do data mining, and reproduce and store copyrighted works to do so.
• Article 4 covers educational uses of copyrighted material.
• Article 5 creates an explicit right for cultural heritage organization (eg, archives) to reproduce works they possess, in any medium, for preservation purposes. It also prevents this right from being contractually waived. At the same time, it explicitly enshrines the idea of Bridgeman vs Corel in the US that faithful reproductions of works in the public domain are themselves public domain.
• While I don't understand the nuances of Article 7, it appears, in practice, to create an opt-out system for cultural heritage organizations to provide online availability of works that aren't in the public domain, but are "out-of-commerce"; in other words, trying to allow them to do what Google was unable to do with Google Books. Presumably because of treaty restrictions, this only has limited application to works that weren't published in EU member states, however.
• Article 10a, a weird addition by Parliament, creates an electronic depository library for all publications related to the EU.
• Article 14 requires that authors and performers be kept updated if contractual rights / copyright ownership to their works are transferred. Article 15 allows them to claim additional "fair" remuneration if the original contract terms are disproportionately low compared to what the other parties made from the works.
• Article 16a creates a right for authors and performers who have works they've transferred by exclusive contract that aren't being "exploited" to revoke the contract, or make it non-exclusive.

In short, this is actually a significant change to copyright in general, and should be looked at more closely.

This is not good.

The directive itself still faces a final vote in January 2019 (although experts say it’s unlikely it will be rejected).

What can we do?

And I hoped that like with the privacy reform, the EU wouldn't bow to corporations.

However, all is not lost, as the final vote on the subject is still to be cast sometime next year. With enough protests and calls/mails to your MEP in Brussels this can still be turned around.