One of the most dramatic differences between the traditional, analogue world of creation, and the modern, digital one, is the democratization that has taken place in this sphere. Until recently, writers, musicians, artists and filmmakers collectively formed a relatively select group that was hard to enter as a professional. Today, anyone with an Internet connection can spread the word about their work and make money from it. In effect, everyone who is online, to a greater or lesser degree, is a digital creator – even with the most ephemeral of posts on social media. Although it is clear the creative field has been opened up enormously, details are hard to come by. That makes a new “Creator Report” from Linktree particularly useful. Linktree describes itself as:

a tool for connecting followers to your entire online world – not just one feed.

A Linktree not only points followers in the direction of your choosing – to your other social profiles, eCommerce store, or content you want to share – but it helps hold followers within your online ecosystem for longer. It allows users to share more, sell more, curate more and grow more.

Linktree claims to have over 23 million users worldwide, which means that it should be in a good position to observe how the new world of digital creation works. Here are some of the highlights of the Creator Report.

Out of 4.2 billion social media users, Linktree says there are 200 million creators, which is defines as “individuals who use their influence, creativity or skills to aggregate and monetize their audience”. Naturally, most of those creators have a limited number of followers. Linktree says there are 23 million “recreational creators” with fewer than 1,000 followers; a massive 139 million creators with between 10,000 and 1,000 followers; 41 million in the next category, with up to 100,000 followers; and finally 2 million each of creators with up to a million and more than a million followers. Around two thirds of creators are active part time, with 43% who spend up to five hours per week creating material. Some 36% have been active for less than a year.

The other key aspect is naturally the money they make. According to Linktree, 12% of full-time creators make more than $50,000, and 46% make less than $1,000. Among the part-time creators, only 3% make more than $50,000, while 68% earn less than $1,000.

None of those figures is particularly surprising – you’d expect only a small proportion of creators to make a living wage, and for full-time creators to find it easier to do this than for part-time creators. The central message of this report is a positive one: that the Internet has unleashed creativity on an unprecedented scale. When the digital world is criticized for its flaws and failings, which undoubtedly exist, that’s something that should always be borne in mind – and celebrated.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Originally posted to the Walled Culture blog.

Last week the European Union’s top court, the Court of Justice of the European Union (CJEU), handed down its judgment on whether upload filters should be allowed as part of the EU Copyright Directive. The answer turned out to be a rather unclear “yes, but…“. Martin Husovec, an assistant professor of law at the London School of Economics, has published an opinion piece exploring the ruling, which he sums up as follows:

The Court ruled this week that filtering as such is compatible with freedom of expression. However, it must meet certain conditions. Filtering must be able to “adequately distinguish” when users’ content infringes a copyright and when it does not. If a machine can’t do that with sufficient precision, it shouldn’t be trusted to do it at all.

The problem is deciding whether implementations of the upload filters do indeed “adequately distinguish” between legal and infringing material. As Husovec notes, both the CJEU and the EU Member States have tried to make this tricky problem someone else’s. That’s hardly surprising, since it is far from obvious how to resolve the issue of allowing filtering but only if it respects legal use of copyright material. However, Husovec offers a way forward with some concrete proposals:

Filters should be subjected to testing and auditing. Statistics on the use of filters and a description of how they work should be made public.

Consumer associations should have the right to sue platforms for using poorly designed filters. Some authorities should have oversight of how the systems work and issue fines in the event of shortcomings.

Husovec notes a neat way to bring in those requirements without wading back into the swamp that is the Copyright Directive. He suggests using the EU’s new AI Act, currently under discussion, as a vehicle to impose safeguards on upload filters, which will inevitably be based on algorithms, and could thus be subject to the artificial intelligence legislation if policymakers added them.

It’s a good approach. Given that the CJEU has approved the stupid idea of upload filters, the least we should do is to apply a little (artificial) intelligence to how they will operate.

Originally published to WalledCulture.

Like other EU Member States, Finland is grappling with the problem of how to implement the EU Copyright Directive’s Article 17 (upload filters) in national legislation. A fascinating post by Samuli Melart in the Journal of Intellectual Property Law & Practice reveals yet another attempt by the copyright industry to make a bad law even worse. As Melart explains, the Finnish Ministry of Education and Culture has come up with not one, but two attempts at transposition, with diametrically opposing approaches. The first version:

sought to transpose Article 17 by entirely rewriting its provisions. This was meant to rectify conceptual ambiguities and to mitigate fundamental right risks to the users of these [online content sharing service providers].

This version was an honest effort to deal with the contradictions at the heart of the Article 17 – which demands that online platforms should block infringing material but not legal material, and without specifying how that might be done at scale. This attempt to produce a balanced law seems to have been met with howls of anger from the copyright industry, which apparently got to work lobbying the Finnish government:

the responsible minister led two round table meetings with stakeholders concerning the feedback on the first draft. Apparently, participants mostly comprised of representatives of the rightholder side.

This led to the second version of Article 17, which:

retracted from rewriting Article 17 and instead switched to transposing it closer to its original wording following Danish and Swedish models. The freedom of expression emphasis and user right considerations of the first draft were largely removed and replaced with hollow reiterations of the Directive recitals.

According to Melart’s article, the first version was strongly influenced by the view of Advocate General Henrik Saugmandsgaard Øe, who suggested that “sharing service providers must only detect and block content that is ‘identical’ or ‘equivalent’ to the protected subject matter identified by the rightholders”. The second version rejected this approach.

The copyright industry is not content with helping to push through the worst copyright law in recent memory, but even at this late stage is trying to make it more unbalanced. Also notable is the almost complete absence of any input from members of the public during this process, or any serious attempt to protect their fundamental rights – a selfishness that is so typical of the copyright world.

The hope now must be that in the light of this week’s CJEU ruling on upload filters, the Finnish legislative process will come up with a text that is much closer to the first version produced by the Ministry than to the second, if the country wants to comply with the top EU court’s judgment.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Originally posted to the Walled Culture blog.

We had just written about the great difficulty national governments are having in transposing the EU Copyright Directive into local law. That’s largely because of the badly drafted and contradictory Article 17. It effectively calls for upload filters, which have obvious problems for freedom of expression because of the impossibility of crafting algorithms that encapsulate the subtleties of copyright law. For this reason, the Polish government brought a legal challenge to Article 17 before the EU’s top court, on the grounds that it infringes on the freedom of expression and information guaranteed in Article 11 of the Charter of Fundamental Rights of the EU. The Court of Justice of the European Union (CJEU) has handed down its judgement, dismissing Poland’s action:

the obligation, on online content-sharing service providers, to review, prior to its dissemination to the public, the content that users wish to upload to their platforms, resulting from the specific liability regime established in the Directive, has been accompanied by appropriate safeguards by the EU legislature in order to ensure respect for the right to freedom of expression and information of the users of those services, and a fair balance between that right, on the one hand, and the right to intellectual property, on the other.

That’s regrettable, but on the plus side, the CJEU has made two comments that impose major constraints on the use of upload filters. First it says:

a filtering system which might not distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications, would be incompatible with the right to freedom of expression and information and would not respect the fair balance between that right and the right to intellectual property.

But no filtering systems exist that can “distinguish adequately between unlawful content and lawful content”, because algorithms are unable to gauge reliably whether uploaded material is an infringement or a legal use of material for things like parody or criticism. The CJEU further said:

the providers of online content-sharing services cannot be required to prevent the uploading and making available to the public of content which, in order to be found unlawful, would require an independent assessment of the content by them in the light of the information provided by the rightholders and of any exceptions and limitations to copyright.

This seems to say that online platforms can only block material if it is obviously infringing – for example if it is identical to a copyright work. That’s pretty much what the CJEU’s Advocate General suggested last year, when he offered his preliminary opinion on the case, as is usual. Advocate General Henrik Saugmandsgaard Øe wrote:

sharing service providers must only detect and block content that is ‘identical’ or ‘equivalent’ to the protected subject matter identified by the rightholders, that is to say content the unlawfulness of which may be regarded as manifest in the light of the information provided by the rightholders. By contrast, in all ambiguous situations – short extracts from works included in longer content, ‘transformative’ works, etc. – in which, in particular, the application of exceptions and limitations to copyright is reasonably foreseeable, the content concerned should not be the subject of a preventive blocking measure.

Crucially, the CJEU in its judgment emphasized:

Member States must, when transposing Article 17 of the Directive into their national law, take care to act on the basis of an interpretation of that provision which allows a fair balance to be struck between the various fundamental rights protected by the charter of fundamental rights.

In other words, except for the German and Austrian Article 17 implementations, which attempt to provide for ex-ante safeguards, as pointed out by former MEP Felix Reda, this means that many Member States will have to redo their homework in the implementation stage or revisit the legislation they adopted. Unfortunately, the CJEU doesn’t give any guidance on how exactly that “fair balance” can be struck. Which means Article 17’s upload filter provisions remain as clear as mud, and will be the subject of argument and further legal actions for years to come.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Originally posted to the Walled Culture blog.

We’ve written numerous posts about the EU Copyright Directive, because it contains two extremely harmful ideas. The first is the “snippet tax“, an attempt by some press publishers to make sites like Google pay for the privilege of displaying and linking to newspaper publishers’ material – an assault on the Web’s underlying hyperlink technology. The second element is the upload filter, probably the worst development in the copyright world of the last few decades.

The EU Copyright Directive is not just a bad law, it is a badly drafted law. That’s proved by the fact that three years after the Directive was passed, and nearly a year since what was supposed to be the deadline for transposing it into national legislation, fewer than half of the EU’s Member States have done so, reported here by Euractiv:

only twelve EU countries [out of 27] have incorporated the measure into their national bodies of law, with Austria, Croatia, Estonia, France, Ireland, Italy, Spain, and Luxembourg doing it only after the Commission’s reprimand.

It comes as no surprise that the two main sticking points are precisely the snippet tax – Article 15 – and upload filters – Article 17. As the former Member of the European Parliament Felix Reda, who was involved in the legislative process of this Directive, told Euractiv, Article 17 in particular is a problem because the provision is:

“internally contradictory” in its requirement that platforms block copyright-infringing content from being uploaded while also ensuring that legal content is not removed.

Not unreasonably, in the face of this impossible task, EU Member States have metaphorically thrown up their hands, and simply transposed Article 17 word-for-word into their national laws, without attempting to detail how the new laws will work in practice.

This is just pushing the problems further down the road. At some point, deep-pocketed Internet platforms will start to bring legal challenges to these new laws that they are required to obey, but without being told how. It might be fun to watch some of these transpositions go down in legal flames, but none of this continuing fiasco will help creators, and it will hurt users trying to share and enjoy material online. Key elements of the EU Copyright Directive have been a waste of time, energy and money, right from the start, the result of selfish and short-sighted lobbying.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Originally posted to Walled Culture.

A few months after the snippet tax was agreed to as part of the EU Copyright Directive, Australia indicated it wanted to take the same route. The government there planned to make Internet companies pay newspapers for sending the latter extra traffic, by imposing something called the News Media Bargaining Code. In a blog post from December 2020, Mel Silva, VP, Google Australia & New Zealand, gave a good analysis of why Australia’s proposed Code was antithetical to the way the Web worked, including the following:

It forces Google to pay to show links in an unprecedented intervention that would fundamentally break how search engines work. No website and no search engine pays to connect people to other websites, yet the Code would force Google to include and pay for links to news websites in the search results you see. This sets the groundwork to unravel the key principles of the open internet people use every day—something neither a search engine nor anyone who enjoys the benefits of the free and open web should accept.

A few weeks later, Google turned up the pressure, and threatened to make its search engine unavailable in Australia if the News Media Bargaining Code went ahead. At this point, Microsoft sensed an opportunity to make life harder for its rival in the online search market. Microsoft’s President, Brad Smith, published the following post of his own, stating that in contrast to Google:

Microsoft fully supports the News Media Bargaining Code. The code reasonably attempts to address the bargaining power imbalance between digital platforms and Australian news businesses. It also recognises the important role search plays, not only to consumers but to the thousands of Australian small businesses that rely on search and advertising technology to fund and support their organisations. While Microsoft is not subject to the legislation currently pending, we’d be willing to live by these rules if the government designates us.

The reason why Microsoft was happy to throw the entire Web under a bus became clear later in the post:

Microsoft will ensure that small businesses who wish to transfer their advertising to Bing can do so simply and with no transfer costs. We recognise the important role search advertising plays to the more than two million small businesses in Australia.

We will invest further to ensure Bing is comparable to our competitors and we remind people that they can help, with every search Bing gets better at finding what you are looking for.

Bing is Microsoft’s largely forgotten search engine. In the desperate hope that making things difficult for Google might encourage a couple of people to switch to Bing, Microsoft decided to cozy up to the newspaper industry that was hell-bent on undermining the Web. A few weeks after Smith’s blog post, Microsoft joined with European newspaper publishers to call for the Web to be weakened there too.

Given that cynical attempt to use bad legislation to attack its rivals, it is gratifying to see that Microsoft’s plan of working with newspaper publishers isn’t going so well, as reported here by the Frankfurter Allgemeine Zeitung (translation via DeepL):

The collecting society Corint Media wants to enforce the demands of press publishers for the ancillary copyright against Microsoft in court. The company announced in Berlin on Friday [1 April 2022]  that the step had been taken “after more than two years of talks without an acceptable result on an appropriate remuneration.”

Apparently, Microsoft had offered 700,000 euros for its 2022 use of newspaper material in the Bing search engine and MSN.com. The publishers, however, demanded 20 million euros. Microsoft had obviously forgotten that, as far as the copyright industry is concerned, coziness counts for nothing, and that enough is never enough.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon. Originally published on Walled Culture.

The EU Directive on Copyright in the Digital Single Market contains two spectacularly bad ideas. One is the upload filter of Article 17, which will wreak havoc not just on creativity in the EU, but also on freedom of speech there, as algorithms block perfectly legal material. The other concerns the “snippet tax” of Article 15, more formally known as ancillary copyright..

Just as the impetus for the upload filter came from the music and film industries, so the lobbying for Article 15 came from newspaper publishers. The logic behind their demand, such as it was, seemed to be that Google was making money from ads on its pages that had some links to newspaper sites. That ignored two inconvenient facts. First, that Google’s dedicated news site, Google News, had precisely zero ads on its pages. And secondly, the pages on the main Google search engine that did have ads, had many other search hits alongside links to newspapers. And those links to newspaper sites send a considerable flow of traffic, that publishers have repeatedly shown they are desperate to have.

For example, in 2014, the German VG Media industry group demanded 11% of gross worldwide revenue on any search result that included one of their snippets. Google responded by dropping the snippets from its search results (but left the title and link). The publishers’ bluff was called, and they granted Google a “free license” to use snippets. If the publishers had really been concerned about Google’s use of snippets, they could easily have blocked the search engine’s Web crawler by using the robots.txt file, which is designed precisely for this kind of situation.

The fact that newspaper sites don’t routinely use robots.txt confirms this is simply about money, and the belief that Google is somehow to blame for the dwindling advertising revenue that newspapers receive nowadays. However, a fascinating analysis by Benedict Evans shows that the situation is much more complex than that:

About five years ago, a revenue line buried in the back of Amazon’s accounts started to get quite big. ‘Other revenue’ was over $4bn by the end of 2017, and if you looked at the notes to the notes, you discovered that this was ‘primarily’ advertising. By 2019 this had grown to $14bn, and I wrote about it here, pointing out that ‘Amazon’ was no longer just e-commerce and AWS [Amazon Web Services, its cloud computing offering], and had become a bundle of lots of different businesses, many of which were probably just as profitable as AWS. However, we still didn’t know exactly what ‘primarily’ meant. At the end of 2021 this changed: Amazon started splitting out the ad revenue directly, telling us that this is now a $31bn business.

Evans puts that in context by noting:

$31bn is roughly the same size as Google Display, YouTube, or the entire global newspaper industry’s ad business.

In other words, the newspaper industry’s obsession with Google is missing the larger point about an entirely new kind of advertising that appears on sites like Amazon. Evans rightly sees a huge move towards “merchant media” – advertising on e-commerce sites that have zero journalistic content of the traditional kind. That means it will not be possible to impose another snippet tax on these sites, because there are no snippets. While newspapers celebrate their “victory” in pushing gullible EU politicians to pass Article 15 targeted against Google and Facebook, the bulk of the revenue draining from traditional media sites is going elsewhere.

Originally published on WalledCulture.

One of the striking features of the copyright industry is its insatiability. No matter how long, broad and strong copyright becomes, the copyright world wants it to be yet longer, broader and stronger. It seems companies simply cannot conceive of any point where there is “enough” copyright in the world.

A good example is in the newspaper publishing sector. Despite the fact that newspaper articles are already covered by copyright, the publishers decided this was not enough. In Europe, they demanded an “ancillary copyright”, more colloquially known as the snippet tax, which would give them copyright protection for even a few words. That’s not just unfair – it goes flat against the Berne Convention – but pointless, too, because the idea has been tried twice, in Germany and Spain, and failed dismally both times.

Nonetheless, the newspapers ploughed on, deploying their not inconsiderable lobbying might – and gained their prize in the form of Article 15 of the EU Copyright Directive. They won, against fairness and logic, once again. And yet, even though many EU Member States have not yet passed the relevant national legislation, the publishers are already back demanding more. Not only that, but they have made their move in a particularly devious and damaging way.

Last week, the final text of the important Digital Markets Act was agreed on after two years of detailed negotiations. At its heart is an attempt to rein in so-called online “gatekeepers” – essentially the big online platforms like Google and Facebook – and to forbid “unfair” business practices. At that very last moment, Euractiv revealed, a completely new element, never formally discussed during the passage of the law through the EU’s legislative process, was suddenly on the table:

a new proposal of the European Commission to extend FRAND [fair, reasonable and non-discriminatory] conditions not only to access but also remuneration for the providers of digital content has been kept under the radar until now. The proposal has long been a flagship request from publishers in the context of the Copyright Directive.

According to a proposal for a new article (Art. 6.1.kb.), seen by EURACTIV, the gatekeeper would have to publish the general conditions for remuneration and the related methodology and respond in good faith to content providers’ request to apply them.

As the article points out, this would effectively turn the European Commission into a price regulator for publishers, with the threat of applying the DMA’s potentially huge fines – 10% of global turnover, rising to 20% for repeated infringements – if online companies refused to comply. Fortunately, the surprise proposal was not included as part of the final text, thanks to some pushback from the European Parliament’s side. Had it been adopted, it would not only have gone much further than the already heavily criticized Article 15 of the EU Copyright Directive, it would have passed into law without any democratic scrutiny whatsoever.

It is no surprise that the publishers were not satisfied when they obtained Article 15’s ancillary copyright. Nor is it surprising that they had no compunction in trying to sneak in an even more unjustified extension of copyright through the back door. What is surprising is that the European Commission acquiesced in this subversion of democracy. In the past, the Commission has liked to pretend that it was impartial, an honest broker that was simply managing the process. But this latest move, which goes against any kind of established EU protocol, suggests the European Commission is now just an out-and-out accomplice to the copyright industry, happy to support even its most outrageous and selfish demands.

The danger is that this and similar demands will re-appear – just as inappropriately – in future EU legislation. The Digital Services Act is still in the pipeline, and the European Media Freedom Act is currently being drafted. Both will need watching closely to ensure that the European Commission (or any of the other institutions) does not meekly accept the endless demands of publishers to push their maximalist copyright agenda everywhere and anywhere.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Originally published to WalledCulture.

One of the central “justifications” for copyright is that it is indispensable if creativity is to be viable. Without it, we are assured, artists would starve. This ignores the fact that artists created and thrived for thousands of years before the 1710 Statute of Anne. But leaving that historical detail aside, as well as the larger question of the claimed indispensability of copyright, a separate issue is whether copyright is a good fit for all creativity, or whether it has inherent biases that few like to talk about.

One person who does talk about them is Kevin J. Greene, John J. Schumacher Chair Professor of Law at Southwestern Law School in Los Angeles. In his 2008 paper “‘Copynorms,’ Black Cultural Production, and the Debate Over African-American Reparations” he writes:

To paraphrase Pink Floyd, there’s a dark sarcasm in the stance of the entertainment industry regarding “copynorms” [respect for copyright]. Indeed, the “copynorms” rhetoric the entertainment industry espouses shows particular irony in light of its long history of piracy of the works of African-American artists, such as blues artists and composers.

In another analysis, Greene points out that several aspects of copyright are a poor fit for the way many artists create. For example:

The [US] Copyright Act requires that “a work of authorship must be “fixed in any tangible medium of expression, now known or later developed, from which [it] can be perceived, reproduced, or otherwise communicated, either directly or indirectly with the aid of a machine or device.” Although “race-neutral”, the fixation requirement has not served the ways Black artists create: “a key component of black cultural production is improvisation.” As a result, fixation deeply disadvantages African-American modes of cultural production, which are derived from an oral tradition and communal standards.

The same is true for much creativity outside the Western nations that invented the idea of copyright, and then proceeded to impose its norms on other nations, not least through trade agreements. Greene’s observation suggests that copyright is far from universally applicable, and may just be a reflection of certain cultural and historical biases. When people talk airily about how copyright is needed to support artists, it is important to ask them to specify which artists, and to examine then whether copyright really is such a good fit for their particular kind of creativity.

Follow me @glynmoody on Twitter or Mastodon.

Originally published on the Walled Culture blog.

The European Union is working on a number of important new digital laws. These includes the Digital Services Act, the Digital Markets Act, and the Data Act. A new press release about the last of these contains the following section:

the Data Act reviews certain aspects of the Database Directive, which was created in the 1990s to protect investments in the structured presentation of data. Notably, it clarifies that databases containing data from Internet-of-Things (IoT) devices and objects should not be subject to separate legal protection. This will ensure they can be accessed and used.

The Database Directive mentioned there grants copyright protection to databases that “by reason of the selection or arrangement of their contents, constitute the author’s own intellectual creation”. It’s a typical attempt to widen the scope of copyright to something that has only the most tenuous kind of “creativity” involved. It was brought in because copyright maximalists believe you can’t have too much copyright, and politicians are too lazy to argue.

Unusually, though, the EU agreed to do something that is never done: to review whether extending copyright actually brings any benefits. Ten years after the Database Directive was passed, an evaluation was published in 2005. It aims were as follows:

the evaluation focused on whether the European database industry’s rate of growth increased after the introduction of the new right; whether the beneficiaries of the new right produced more databases than they would have produced in the absence of this right; and whether the scope of the right was drafted in a way that targets those areas where Europe needs to encourage innovation.

And here is what the European Commission’s own evaluation found:

The economic impact of the “sui generis” right on database production is unproven. Introduced to stimulate the production of databases in Europe, the new instrument has had no proven impact on the production of databases.

The report also wrote that the “empirical evidence, at this stage, casts doubts” on the need for a special copyright for a thriving database industry. So you might think that the obvious, rational thing to do would be to repeal an ineffectual, unneeded monopoly. Instead, the report noted that repealing the directive “would probably lead to considerable resistance by the EU database industry.” In other words, purely because the copyright industry would whine about it, the European Commission’s report recommended leaving in place a law that by its own research was shown to be pointless.

This is a perfect example of the copyright ratchet: the fact that copyright always gets longer, stronger, and broader, and that once passed, copyright laws are never weakened or repealed. It’s one of the reasons why copyright is such a disaster today. Its laws were framed for the analogue world, and the copyright industry refuses to countenance updating them to make them fit for the digital world. Indeed, as the upload filters in the EU’s horribly-misnamed Directive on Copyright in the Digital Single Market show, new laws are actively making things worse.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Originally posted on the Walled Culture blog.