The attack on the hyperlink ...

[GreyGeek]

When the EU's Articles 11-13 are finally in play, which appears unstoppable as of now, Dave explains why it will be bad for the citizens of the EU:

China couldn't have created a better method to keep its citizens ignorant of what the PTB don't want the sheep to learn.

[Goeroeboeroe]

It's the same proposal that makes upload filters almost obligate (they call it different, but that's the only way to obey the proposal).
But there's still a bit of hope. At the moment the European Commission, the European Parliament and all 26 member states have to agree about the final proposal. Only after that they can make a law. A minority of the members of parliament is against the proposal. But more important:some member states are against it. Among them Italy, that's in a heavy fight with the commission about it's budget. (The European Commission has to give a fiat to a budget, and for the first time in history they vetoed the whole budget of Italy.)
So maybe Italy gets so angry they just veto this censorship proposal... Or maybe another country.

[GreyGeek]

And, perhaps, the EU will implode and disappear before Articles 11&13 become law. One can always hope.

[kenj70]

I am for a free marketplace. Copyright law is a hindrance, IMO. To make the case here is one of the best articles I have found - a gem from my bookmark collection:

http://reason.com/archives/2010/11/2...lfered-clavier

-=Ken=-

[kubicle]

If you actually read the latest proposal, you'd find that the version of the directive voted on contained explicit exemptions for the act of hyperlinking and "legitimate private and non-commercial use of press publications by individual users"...academic and scientific publication is also exempt.

The directive is not without issues (I'll not go into details here, but there are provisions I find troublesome, mostly due to the somewhat vague wording of the proposal. But this is not uncommon with EU directives which aren't directly applicable law in the EU Nations, just guidelines for national legislation...and therefore tend to leave some leeway for national implementation).

The directive will change some things, but it will not "break the internet as we know it", that is just hyperbole.

I'll add, since copyright laws are also being discussed, that some parts of the current copyright laws are just idiotic (like long protection times), but it is copyright law that makes the GPL possible (and therefore is a necessity for things like linux).

EDIT: You can read the amendments to the original proposition (side-by-side) here. (and if you aren't fluent in legalese, you can find a decent recap on wikipedia).

As far as political bodies go, the EU Parliament tends to make rather sane decisions that actually take into account the interests of EU citizens (it has rather varied democratically elected composition). However, I do not extent that description to the EU Commission...which, to put it nicely, is sometimes swayed by governmental and corporate interests (this is not uncommon for political bodies with administrative power).

[Qqmike]

Always thanks to kubicle for keeping things straight in our free-for-all community!

[TWPonKubuntu]

Thank you Kubicle. Since I bookmark many websites which are news consolidations from multiple sources, I wonder how they will be affected by this? Probably more targeted at those sites which are hosted or owned by people or businesses who are actually in the EU countries.

My inner skeptic is warning me to watch this because I expect this kind of "policy" to spread, perhaps across the pond to us in the US... Follow the money.

[GreyGeek]

Article 11

The exception or limitation should cover digital uses of works and other subject-matter to support, enrich or
complement the teaching, including the related learning activities. The exception or limitation of use should be granted as long as the work or other subject-matter used indicates the source, including the authors’ name, unless that turns out to be impossible for reasons of practicability. The use of the works or other subject-matter under the exception or limitation should be only in the context of teaching and learning activities carried out under the responsibility of educational establishments, including during examinations, and be limited to what is necessary for the purpose of such activities. The exception or limitation should cover both uses through digital means where the teaching activity is physically provided, including where it takes place outside the premises of the educational establishment, for example in libraries or cultural heritage institutions, as long as the use is made under the responsibility of the educational establishment, and online uses through the educational establishment's secure electronic environment, the access to which should be protected, notably by authentication procedures. The exception or limitation should be understood as covering the specific accessibility needs of persons with a disability in the context of illustration for teaching.

Article 13

Different arrangements, based on the implementation of the exception provided for in Directive 2001/29/EC or on
licensing agreements covering further uses, are in place in a number of Member States in order to facilitate educational uses of works and other subject-matter. Such arrangements have usually been developed taking account of the needs of educational establishments and different levels of education. Whereas it is essential to harmonise the scope of the new mandatory exception or limitation in relation to digital uses and cross-border teaching activities, the modalities of implementation may differ from a Member State to another, to the extent they do not hamper the effective application of the exception or limitation or cross-border uses. This should allow Member States to build on the existing arrangements concluded at national level. In particular, Member States could decide to subject the application of the exception or limitation, fully or partially, to the availability of adequate licences. Such licences can take the form of collective licensing agreements, extended collective licensing agreements and licences that are negotiated collectively such as “blanket licences”, in order to avoid educational establishments having to negotiate individually with rightholders. Such licenses should be affordable and cover at least the same uses as those allowed under the exception. This mechanism would, for example, allow giving precedence to licences for materials which are primarily intended for the educational market, or for teaching in educational establishments or sheet music. In order to avoid that such mechanism results in legal uncertainty or administrative burden for educational establishments, Member States adopting this approach should take concrete measures to ensure that such licensing schemes allowing digital uses of works or other subject-matter for the purpose of illustration for teaching are easily available and that educational establishments are aware of the existence of such licensing schemes. Member States should be able to provide for systems to ensure that there is fair compensation for rightholders for uses under those exceptions or limitations. Member States should be encouraged to use systems that do not create an administrative burden, such as systems that provide for one-off payments.

The content of 139, 145 and 146

For the purposes of this Directive, it is necessary to define the concept of press publication in a way that embraces only journalistic publications, published by a service provider, periodically or regularly updated in any media, for the purpose of informing or entertaining. Such publications would include, for instance, daily newspapers, weekly or monthly magazines of general or special interest and news websites. Periodical publications which are published for scientific or academic purposes, such as scientific journals, should not be covered by the protection granted to press publications under this Directive. This protection does not extend to acts of hyperlinking. The protection shall also not extend to factual information which is reported in journalistic articles from a press publication and will therefore not prevent anyone from reporting such factual information.

Notice that the protection granted to "press publications" do not extend to acts of hyperlinking. That exemption from protection is repeated in the article below.

Online content sharing service providers perform an act of communication to the public and therefore are responsible for their content and should therefore conclude fair and appropriate licensing agreements with rightholders. Where licensing agreements are concluded, they should also cover, to the same extent and scope, the liability of users when they are acting in a non-commercial capacity. In accordance with Article 11(2a) the responsibility of online content sharing providers pursuant to Article 13 does not extend to acts of hyperlinking in respect of press publications. The dialogue between stakeholders is essential in the digital world. They should define best practices to ensure the functioning of licensing agreements and cooperation between online content sharing service providers and rightholders. Those best practices should take into account the extent of the copyright infringing content on the service.

Member States should provide that where right holders do not wish to conclude licensing agreements, online content sharing service providers and right holders should cooperate in good faith in order to ensure that unauthorised protected works or other subject matter, are not available on their services.

Cooperation between online content service providers and right holders should not lead to preventing the availability of non-infringing works or other protected subject matter, including those covered by an exception or limitation to copyright.

Consider how the DMCA is applied when you read that last paragraph, or the first one below.

Members States should ensure that online content sharing service providers referred to in paragraph 1 put in place effective and expeditious complaints and redress mechanisms that are available to users in case the cooperation referred to in paragraph 2a leads to unjustified removals of their content. Any complaint filed under such mechanisms should be processed without undue delay. Right holders should reasonably justify their decisions to avoid arbitrary dismissal of complaints. Moreover, in accordance with Directive 95/46/EC, Directive 2002/58/EC and the General Data Protection Regulation, the cooperation should not lead to any identification of individual users nor the processing of their personal data. Member States should also ensure that users have access to an independent body for the resolution of disputes as well as to a court or another relevant judicial authority to assert the use of an exception or limitation to copyright rules.

The words in green are certianly open for debate as to their meaning. What if "redress mechanisms" required the accused to communicate only through a lawyer, and more specifically, a lawyer "trained" in Internet law? Wouldn't that be like going before a NSA judge when you get an NSA letter?

[kubicle]

Notice that the protection granted to "press publications" do not extend to acts of hyperlinking. That exemption from protection is repeated in the article below.

I think you are misreading the articles (understandable, as they are legal jargon extraordinaire).

Article 11 protects the content made by press publications (and only press publications), preventing their content to be reused/embedded without a mandatory license. The act of hyperlinking and legitimate private and non-commercial use of press publications by individual users are exempt. So hyperlinking is explicitly allowed (by anyone and for any purpose), as is private and non-commercial use of content by individuals (as long as users don't break existing copyright laws).

I'll add the Article 11 text here for completeness:

Article 11
Protection of press publications concerning digital uses

1. Member States shall provide publishers of press publications with the rights provided for in Article 2 and Article 3(2) of Directive 2001/29/EC so that they may obtain fair and proportionate remuneration for the digital use of their press publications by information society service providers.

1a. The rights referred to in paragraph 1 shall not prevent legitimate private and non-commercial use of press publications by individual users.

2. The rights referred to in paragraph 1 shall leave intact and shall in no way affect any rights provided for in Union law to authors and other rightholders, in respect of the works and other subject-matter incorporated in a press publication. Such rights may not be invoked against those authors and other rightholders and, in particular, may not deprive them of their right to exploit their works and other subject-matter independently from the press publication in which they are incorporated.

2a. The rights referred to in paragraph 1 shall not extend to mere hyperlinks which are accompanied by individual words.

Article 13 only affects 'online content sharing service providers'.

The directive (especially the latest revision) tries to explain the somewhat vague terms of "press publications", "service providers", but the earlier revisions didn't make it explicitly clear, which is probably the main cause for all the drama. For example, the wording of the original proposition made room for the (aggressive) interpretation that virtually anyone could be considered a service provider, including individuals with blogs or web pages, private clouds, online encyclopedias, open source code sharing platforms (such as github), and that hyperlinking could be considered "reusing content". All these fears are explicitly remedied in the latest accepted revision.

Quoting from the latest revision:

‘press publication’ means a fixation by publishers or news agencies of a collection of literary works of a journalistic nature, which may also comprise other works or subject-matter and constitutes an individual item within a periodical or regularly-updated publication under a single title, such as a newspaper or a general or special interest magazine, having the purpose of providing information related to news or other topics and published in any media under the initiative, editorial responsibility and control of a service provider. Periodicals which are published for scientific or academic purposes, such as scientific journals, shall not be covered by this definition.

‘online content sharing service provider’ means a provider of an information society service one of the main purposes of which is to store and give access to the public to a significant amount of copyright protected works or other protected subject-matter uploaded by its users, which the service optimises and promotes for profit making purposes. Microenterprises and small-sized enterprises within the meaning of Title I of the Annex to Commission Recommendation 2003/361/EC and services acting in a non-commercial purpose capacity such as online encyclopaedia, and providers of online services where the content is uploaded with the authorisation of all right holders concerned, such as educational or scientific repositories, shall not be considered online content sharing service providers within the meaning of this Directive. Providers of cloud services for individual use which do not provide direct access to the public, open source software developing platforms, and online market places whose main activity is online retail of physical goods, should not be considered online content sharing service providers within the meaning of this Directive

The purpose of Article 11 is fairly clear: Make companies like Google, Facebook that regularly and en masse embed news and stories from press publications pay license fees for the content. The purpose is not to break the internet or restrict the freedom of speech.

Again, the wikipedia article explains the Articles quite well (in a language that doesn't make your head spin).

And if you stop to think about it for a moment, why would the EU try to restrict hyperlinking (which this directive explicitly says it does not)? There exists no reasonable purpose that would serve, and the EU itself uses hyperlinks extensively. And even if someone wanted to restrict hyperlinking for some unfathomable reason, it wouldn't be technically possible to do so when you consider what a hyperlink is (a specially formulated piece of text that browsers recognize as pointing to a specific url that you can click in a browser window)...if someones restricts or limits hyperlinks, people could still post the urls as plain text (and browsers would quickly adapt to recognizing urls and allow users to click on them to access that url)...and therefore all restrictions made for hyperlinks would be ineffective, as the plain text url is not a hyperlink.

[kubicle]

Since I bookmark many websites which are news consolidations from multiple sources, I wonder how they will be affected by this?

That should depend on how the news aggregation site operates.

News aggregation sites that provide headlines (and/or recaps of the information) and links to the actual articles should be unaffected (headlines should be considered "insubstantial" part of the work, recaps generally use only the factual information provided in the content, both of which are allowed by the directive...as is hyperlinking to the actual article).

Sites that copy articles either as a whole or substantial parts of them should pay a license fee (which to me seems reasonable, after all they are essentially redistributing someone else's work...usually for commercial gain).

Quote:

Protection of press publications

The Council compromise text would create a new right for press publishers for the online use of their press publications, which is in line with the Commission original proposal. However, the protection would only last one year instead of the 20 years proposed by the Commission.

The protection would also cover the use of parts of press publications. However, insubstantial parts of press publications will not be covered. To determine whether a part of a press publication is insubstantial, member states will be able to apply either an originality criterion or a size criterion (for instance very short excerpts), or both criteria.

Of course, there are still things up in the air (directive is not finalized yet, national laws are not implemented, the size of the license fees is not determined) so it's hard to say how big of an impact it will have.

[GreyGeek]

The proof will be in the pudding. Knowing how legal jargoneeze is open to any interpretation or abuse that a well paid & connected lawyer can put to it, when the cease and desist orders start flying, along with demands for payment of license fees after someone creates a link to a news source on their own website. Can you imagine how many license fees either this forum or the user who posts would have to negotiate if they allow this site to be viewed in Europe? The use of Tor in Europe will either skyrocket or be outlawed altogether.

[kubicle]

The proof will be in the pudding. Knowing how legal jargoneeze is open to any interpretation or abuse that a well paid & connected lawyer can put to it, when the cease and desist orders start flying, along with demands for payment of license fees after someone creates a link to a news source on their own website. Can you imagine how many license fees either this forum or the user who posts would have to negotiate if they allow this site to be viewed in Europe? The use of Tor in Europe will either skyrocket or be outlawed altogether.

While we can discuss the ethics (or lack thereof) of lawyers, lawyers have a knack for processing legal jargon, and lawyers that let their clients pursue obvious lost causes aren't very good lawyers (or actually lawyers with any clients). Lawyers could even now sue (unsuccessfully) anyone for copyright infringement just for hyperlinking, and yet they do not (because hyperlinking does not constitute a copyright infringement by itself now, or according to the directive proposal).

Basically the only thing Article 11 would change in the status quo, is that press publishers and news agencies will be given the same right to remuneration for the usage of their content that individual right holders currently have, making it possible for the publisher to negotiate licensing fees without having to gain approval from the individual right holders to the content they are distributing (usually under a license of their own).

Individual users need not be concerned, since their non-commercial usage of press publications is protected even in the new directive proposal (provided they do not break existing copyright laws, as is the case under the current laws). Hyperlinking is also explicitly allowed, even in a commercial purpose for individuals and corporate entities alike.

And online forums such as these don't really have to worry about being directly liable for copyright infringements of their users (under Article 13), since they obviously don't meet the description of 'online content sharing services' (as described in the directive):

‘online content sharing service provider’ means a provider of an information society service one of the main purposes of which is to store and give access to the public to a significant amount of copyright protected works or other protected subject-matter uploaded by its users, which the service optimises and promotes for profit making purposes.

In addition, The laws of EU nations don't entend over their jurisdiction, so American users have nothing to fear even if you don't believe anything else I've written.

I don't blame anyone for voicing their concerns and for their civil vigilance, both of which are definitely necessary in today's world...and concerns voiced indeed had an effect on the EU parliament, making them reject the original directive proposal for it's vagueness, and making it more clear. But there really are more reliable sources for information than "This guy who uploaded a video on the internet" (and Dave Cullen is not really known for impartial commentary, even though he is of course as free as anyone to express his views).

I live in the EU, and I'm as strong a supporter of the freedom of expression as you can find anywhere...and I'm not overly concerned (and certainly not concerned over Article 11).

Article 13 is a bit more worrisome as it may (inadvertently) lead to more aggressive content checking on some platforms and increase the number of false positives...even though the latest revision of the directive has the article almost completely rewritten to include several clauses that mitigate the effects of such content blocking (emphasis mine):

Article 13
Use of protected content by online content sharing service providers storing and giving access to large amounts of works and other subject-matter uploaded by their users

1. Without prejudice to Article 3(1) and (2) of Directive 2001/29/EC, online content sharing service providers perform an act of communication to the public. They shall therefore conclude fair and appropriate licensing agreements with right holders.

2. Licensing agreements which are concluded by online content sharing service providers with right holders for the acts of communication referred to in paragraph 1, shall cover the liability for works uploaded by the users of such online content sharing services in line with the terms and conditions set out in the licensing agreement, provided that such users do not act for commercial purposes.

2a. Member States shall provide that where right holders do not wish to conclude licensing agreements, online content sharing service providers and right holders shall cooperate in good faith in order to ensure that unauthorised protected works or other subject matter are not available on their services. Cooperation between online content service providers and right holders shall not lead to preventing the availability of non-infringing works or other protected subject matter, including those covered by an exception or limitation to copyright.

2b. Members States shall ensure that online content sharing service providers referred to in paragraph 1 put in place effective and expeditious complaints and redress mechanisms that are available to users in case the cooperation referred to in paragraph 2a leads to unjustified removals of their content. Any complaint filed under such mechanisms shall be processed without undue delay and be subject to human review. Right holders shall reasonably justify their decisions to avoid arbitrary dismissal of complaints. Moreover, in accordance with Directive 95/46/EC, Directive 2002/58/EC and the General Data Protection Regulation, the cooperation shall not lead to any identification of individual users nor the processing of their personal data. Member States shall also ensure that users have access to an independent body for the resolution of disputes as well as to a court or another relevant judicial authority to assert the use of an exception or limitation to copyright rules.

3. As of [date of entry into force of this directive], the Commission and the Member States shall organise dialogues between stakeholders to harmonise and to define best practices and issue guidance to ensure the functioning of licensing agreements and on cooperation between online content sharing service providers and right holders for the use of their works or other subject matter within the meaning of this Directive. When defining best practices, special account shall be taken of fundamental rights, the use of exceptions and limitations as well as ensuring that the burden on SMEs remains appropriate and that automated blocking of content is avoided.

But I'll cross that bridge when we come to it (when the national laws are in effect and we can get a feel of how things turn out on Article 13), not prematurely. If the all the fears are true, you'll find me on your side of the barricades right beside you.

[TWPonKubuntu]

kubicle; Thanks again for your analysis. While I agree, in principal, with what you read in these two articles (11 & 13), I'm also fully expecting to have the politicians and judges apply their own interpretation after the fact. 'tis the nature of the beast...

I live "across the pond from you" and we don't yet have such legislation (it is policy, not law) in place here, but copyrights are points of contention here too. Copyright holders are entitled to protection for their work but the discussion also involves the determination of what, exactly, is copyright-able material. I give you the example of Microsoft® which is saying that they want to support the Open Software concept, yet has a herd of copyright troll businesses which are actively collecting copyright ownership, including some copyrights which conflict with the Open Software licenses.

I'll welcome you to our ranks, if push come to shove, but until then "keep your powder dry" and be ever watchful.

[TWPonKubuntu]

Another analysis of Article 11 and possible ramifications:

https://www.eff.org/deeplinks/2018/1...e-commons-news

[GreyGeek]

These Creative Commons news entities often rely on public donations to do their excellent, deep, investigative work. Allowing free re-use is a key way to persuade their donors to continue that funding. Without Creative Commons, some of these news entities may simply cease to exist.

THAT, in a nutshell, is the entire purpose for these link taxes. The EFF correctly, IMO, identified the problem:

a once-noncontroversial regulation that became a hotly contested matter when, at the last minute, a set of extremist copyright proposals were added and voted through.

These "licenses" and taxes have, IMO, only one purpose: to supress freedom of speech and the free exchange of ideas, many of which are not popular with the Globalists who are now in power.