18.06.2018Cyprian Łakomy

Unlucky Article 13. Why the EU copyright directive threatens the Internet as we know it

On Wednesday (June 20), the European Parliament will vote on the new Copyright Directive proposal. Whereas it has been agreed that the legal framework in force calls for a reform, Article 13 of the Directive may heavily impact the fundamental principles of the Internet as well as constitute a threat to the future of software development.

The shape of European copyright law has been subject to dispute for years. The international protests surrounding ACTA (Anti-Counterfeiting Trade Agreement, rejected by the Parliament in 2012) raised the global awareness of the problem, highlighting the biggest potential threats resulting from improper legislation, web censorship being the main one.

Like a recurring nightmare, the phantoms of ACTA are very likely to return, but no worldwide protest can be observed this time. This Wednesday (June 20), the European Parliament will vote on the reform of the copyright law. The European Copyright Directive proposal includes the Article 13, which sets alternative obligations to “information society service providers that store and provide access to large amounts of works or other subject-matter uploaded by the users”. One of them, as mentioned by the proposal, is the “use of effective content recognition technologies”, i.e. mechanisms enabling tracking down copyright infringements.

A favorite of the music industry lobby, which aims at profiting from the content shared through internet platforms like YouTube, Article 13 may affect a huge variety of online services, not only those storing music or videos. Also Free and Open Source Software, developed through open collaboration and stored in control systems such as GitHub, Gitlab and Stack Overflow falls within the scope of “information society service providers storing and providing access to large amount of works or subject-matter uploaded by the users”.

According to the “European Copyright Reform. Impact on Free and Open Source Software and developer communities” report, published by Open Forum Europe and FSFE in September 2017, the Copyright Directive, if passed on Wednesday, may profoundly disrupt the way the software development business operates in the following ways:

  1. Freedom to conduct a business. All kinds of businesses, be it large, small or individual, will have to face automated filtering resulting in “false positive” identifications of infringing software. Imagine hours, days or even weeks of development works spent in vain and, consequently, lost businesses.
  2. Right to privacy. In order to prevent copyright infringements, implementing the Directive will require the platforms to conduct an active surveillance of software developers’ activity.
  3. Freedom of expression and information. The above obligation would lead to massive content removal from the platforms, due to their owners’ fear of liability for copyright infringements. Again, imagine whole repositories taken down and wonder how would it affect the software business.
  4. Presumption of innocence. As the Directive proposal does not provide any specific redress mechanisms to challenge the content removal by a rightholder, it would make any user of the platform a potential copyright infringer.

The current legal framework protecting the source code of a program is set by the Directive 2009/24 which defines a minimum level of protection of computer programs by the copyright in the Member States. They have been given the same protection as literary and artistic works within the meaning of the Berne Convention. The EU copyright law protects a computer program both as a whole entity, as well as its component parts in the form it was written by a programmer: as long as the source code conveys an individual way to express the functionality of a program and so is original.

In 2012, the overall contribution of the Free and Open Source was estimated at EUR 450 billion. Since then, it has only grown. Version control systems (VCSs) such as GitHub or Gitlab have been the fundamental tools the FOSS communities rely on, to track the development history of software projects. It has to be underlined that collaborative platforms and VCSs are used not only by the software development business, but also by other branches, researchers and governments to store their software. For example, the car manufacturer giant BMW has over 30 code repositories where software for future automobiles and motorcycles is kept.

There is a general consensus that due to software development practices’ universality, hardly any new software is built from absolute scratch, i.e. without incorporating accessible and reusable parts of the FOSS code. By introducing the obligation of content monitoring, Article 13 of the proposed Copyright Directive contradicts this consensus, and in general the idea of the Internet as a public resource. Not a perfect one, but still open and democratic. Instead it extends a threat of a new, privatized Internet, where any content can be copyrighted and any sharing thereof treated as a potential infringement.

Having said that, the concerns surrounding Article 13 are something much more than those of the software business which may face a serious upheaval. This is and should be a natural concern of anyone who shares pieces of texts, pictures, music and video remixes, memes etc. on their social media, blog or any other platform falling within its scope. By passing the censorship mechanisms, the European Parliament would seem like cutting off the branch we - as individuals, creators and entrepreneurs - are sitting on.

Want to take action? You can tell the decision makers that you oppose the content censoring regulation, by signing open letters on the websites such as, or

#SaveYourInternet #SaveTheCode #DeleteArt13

Photo from by Ricardo Mancía

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