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This is how European Union Copyright Directive may curb the internet freedom in India

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This article is an Open Letter to Shri Ravi Shankar Prasad, Union Minister for Electronics & Information Technology as well as to the Indian media and the people of India.

On September 12th, Thursday the European Union voted to approve the copyright reforms that has been in the works since 2016 and this new law can change the internet entirely for users in Europe and all over the world. Although they will have to receive a final approval in January to be made applicable, it is expected they will be passed.

The reform which is known as European Union Copyright Directive or EUCD for short, is meant to protect content creators and has received some support in the artistic and media communities. However, critics argue that the reforms food hamper the free flow of information turn Tech companies into content police.

The session held in Strasbourg, France saw the approval of the updated version of the EUCD with 438 lawmakers voting in favour, 226 voting against and 39 abstaining. The most controversial parts of this new directive are Article 11 and Article 13. These are also the article that are more likely going to change the internet.

Article 11 calls for news aggregators like Google Yahoo et cetera or in case of India, a news aggregator like the popular app ‘Inshorts’ to pay media companies a so-called “link tax” when sharing their content. The intention of this article is to give publishers and papers a way to make money when companies, like Google, link to their stories, allowing them to demand paid licenses. Article 13 requires that platforms such as Twitter, Facebook, Reddit proactively work with copyrights holders to stop users uploading copyrighted content. The only way to do so would be to scan all data being uploaded to sites like YouTube and Facebook. Essentially Article 13 mandates that platforms develop a sort of “upload filter” that prevents users from sharing any copyrighted contents.

The consequence these two Articles is that the “Link tax” in Article 11 will make sharing news or reporting on reports of other outlets difficult. Obviously, the ones to be hit most easily are news aggregators, as mentioned earlier but others will also be hit. Let’s say ‘OpIndia’ wishes to counter an article published in ‘The Wire’ or ‘The Wire’ wishes to counter an ‘OpIndia’ article. In that case, the publications will have to use a link to the article/story that they are trying to counter and in doing so, they will be forced not only to incur an expense in form of this so-called charge, making reporting more expensive, they will also be funding their competitor and rival. In other case also, such as, for agencies like ‘The True Picture’ or ‘AltNews’ etc. that report on news reports by others will have to incur costs as well as pay the organization/agency/people who, in their opinion, are propagating fake or inaccurate news. Such a tax is prohibitive and prevents new and/or small entities to enter in the domain of news reporting which, on the internet is theoretically supposed to be cost free or of having negligible cost when it comes to putting out content.

Due to the “Upload filter” mandated in Article 13 platforms will be made responsible for the content their users share. Simply put, it creates an obligations on companies like Facebook, YouTube and Twitter to go through every thing their users upload, and see if what they are attempting to share is copyrighted and not allow them to share it. This would imply that such platforms will have to develop and use AI capable of scanning and identifying millions and millions of uploads by the users of these platforms everyday. Not only is this expensive and cost prohibitive to small entities and new entrants but also turns private companies into content police and censors.

An easy way to understand this Article and its implications is through memes. Maybe you have already seen messages like “Let’s make the EU flag into a meme, so they have to ban themselves” or something to that effect. Essentially, all memes are either some sort of relateable or an inside joke using images or videos from other sources but with a changed context. Thus, by their very nature, memes use copyrighted content but because changes are made in one form or the other, they fall under “Fair Use”. However, algorithms cannot distinguish between what is and is not Fair Use of Copyrighted materials. Even if AI could distinguish Fair Use, the EUCD will be making private entities arbiters to what we can and can not express.

And therein lies the problem. All of a sudden, you can not share that Donald Trump meme because the video used in it is owned by some news channel, you can’t share the Modi joke because the video in that is owned by BJP or you can’t share the funny Rahul Gandhi video because, you guessed it, the video is owned by Congress(Indira)! It is for this reason these new Copyright Directives are being reported as EU banning memes, which although technically is not what EU is doing (given that the exception for Fair Use exists in Copyright Laws) but it is nevertheless, what these directives will result in.

At this juncture, you might be thinking that India is a sovereign nation and the laws made by European Parliament don’t apply here. And you are right. These laws do not and will not apply in India. But these laws do and will apply to companies that operate in Europe. You might remember the “We have updated our Privacy Policy” messages after the Cambridge Analytica scandal came to light and the European Parliament directed companies to improve their privacy policies. Therefore, although the laws don’t apply to us and Article 11 may or may not affect India, Article 13 will surely affect India since companies like Google, Facebook, Twitter etc. will have to comply with those laws if the EUCD is passed in January.

Now the question arises, what can we do? There are multiple options. The first, and the most unlikely to come to fruition, is to have the Indian Parliament pass its own set of laws governing the internet companies and these aspects of the internet. For this to happen before January, we will all have to call (repeatedly) to our Members of Parliament to raise this issue and legislate on this. But given that India is soon about to enter election mode and the Parliament is not in session, it is near impossible that any decent and effective law can be drafted, proposed, discussed, improved and passed.

The second option is, obviously, that the Government brings in through Ordinance or Notification a much needed Internet Policy for India that clears rules of operation for internet companies. For this we need to write, repeatedly, to the Prime Minister Shri Narendra Modi, Union Minster for Electronics & Information Technology Shri Ravi Shankar Prasad. The media must also raise this issue strongly.

The third option is to migrate from Europe and America based companies/platforms to domestic platforms. There are platforms like Gutrgoo etc. that can replace Twitter etc. if their users increase. Similarly, new ventures can rise like how Anand Mahindra had Tweeted a few months ago his interest in creating a challenger to Facebook (what became of that is unknown).

The last option is to not do any of the above and pray, that, as unlikely it may be, the vote in January falls short and EUCD does not pass. Or if it does end up passing, like it is expected to, it fails to be implemented due to the practical impossibility in enforcing these directives. If and when that happens you can celebrate by sharing memes on the hilarious failure of the EU. However, whether or not the EUCD is passed, whether it impacts India or not, the fact remains that India lacks a reasonable, clear, concise and effective Internet Policy to deal with issues of the internet. And this cannot be solved by Shri Ravi Shankar Prasad thundering in Press Conferences and threatening Mr. Mark Zuckerburg. The truth is that we need a policy and we need it now!

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