Shape the debate on the EU copyright proposal

The last time we wrote about an EU copyright proposal affecting software development, we explained that policymakers in Brussels responded when you took action. We’re fast approaching another vote on that proposal in the EU Parliament.

Here’s an update on the status of the negotiations, along with some ideas of how you can help Members of European Parliament (MEPs) understand why and how to protect software development. Activism by people concerned about the copyright proposal is part of why it hasn’t passed yet, so keep reading to learn how you can help shape the debate.

What is this (again)

The EU’s copyright proposal has the potential to impact the way we develop software. There’s still time to make our stance heard on several key issues of the proposal before it becomes law:

• Upload filters (Article 13): Automated filtering of code would make software less reliable and more expensive. Upload filters pose larger concerns—like censorship, free speech, privacy, and ineffectiveness—and are problematic for all kinds of content, including software code.
• Text and data mining (Article 3): The copyright exception for text and data mining in the EU is too narrow, because it only applies to research organizations for scientific purposes on a not-for-profit basis. It would undermine the EU’s efforts on AI and machine learning, as well as software development in the EU that depends on AI and machine learning.
• New right (ancillary copyright) for press publishers (Article 11): Requiring a license to post snippets of text that describe links would add overhead to anyone developing software for the web. It would also run counter to copyright exceptions that allow copying for certain purposes, like commenting on a copyrighted work.

We’re focusing on software because that’s where GitHub and software developers can speak with authority.

Status of the negotiations

You may have heard that Parliament “rejected the copyright proposal” on July 5. Actually, Parliament voted against one of its committee’s proposals, but it didn’t permanently reject it. Instead, they voted to open the negotiations to all 751 MEPs, rather than primarily one committee.

That said, the rejection was significant because MEPs used a rare procedure to challenge the committee’s decision, and public advocacy against the proposal contributed to that.

What happens now

Parliament will vote on September 12 based on amendments received by September 5. This time, it will be the full Parliament—with more than 700 additional MEPs potentially voting than when the committee voted on the proposal. And while they’re restarting negotiations, they’re not starting over completely. They’ll vote on amendments to the Commission’s initial proposal, which is the one that kicked off the idea of upload filters in the first place.

Whatever happens in Parliament, it’s important to keep in mind that there are three institutions involved in lawmaking in the EU: Commission, Council, and Parliament. If Parliament adopts a version of the proposal, it will enter into negotiations—or trilogues—with the Commission (based on its original proposal) and Council (based on its negotiating mandate).

But for now, all eyes are on Parliament to see what it might adopt.

What you can do

Leading up to Parliament’s vote, a Copyright Week of Action is happening September 4-11. Each day in that week is dedicated to a different constituency. September 5 is for developers and open source software.

Because so many developers from the EU work in the San Francisco Bay Area, we’re hosting an event at our headquarters in San Francisco on that day for EU developers to encourage them to contact their MEPs and encourage developers back home to do the same.

What to tell MEPs

Many MEPs aren’t familiar with software development or how this proposal can affect it. Developers are in an excellent position to explain to MEPs how essential open source software is to software development overall and to the countless sites, apps, and programs people rely on and enjoy.

It can be a lot to take in, so here are a few things you can share with your MEP to get started:

• Software developers are creators, too: Code is copyrightable and developers who choose an open source license want to allow that code to be shared.
• Filters are ineffective for software code: False positives (and negatives) are especially likely because of many contributors and layers, often with different licensing for different components.
• Requiring filters that scan and automatically remove content could drastically impact software developers when their dependencies are removed due to false positives.
• The upload filters requirement is overly broad because it applies to many platforms (like code-sharing platforms) that have nothing to do with the problem policymakers are trying to solve.
• Upload filters will harm software development, which is significant to the EU economy.
• Text and data mining (TDM) is critical to AI and machine learning, and restricting TDM to narrow circumstances like non-profit and scientific research would undermine the future of software development in the EU, including the EU’s own efforts to promote AI.

Ready to take action? Contact your MEPs and tell them to protect software development by:

• Opposing upload filters (censorship machines) in Article 13
• Including software development platforms under the exceptions in Article 2, which defines the services within Article 13’s scope
• Opposing text and data mining restrictions in Article 3 if the exceptions remain only for research institutions for scientific purposes on a not-for-profit basis

If you aren’t a citizen of the EU, there are still ways to get involved and speak out for the developer community. Public advocacy has already shaped Parliament’s response, so share your thoughts on the copyright proposal on social media, raise awareness in your community and circles, and stay tuned to what happens next.

Written by

Abby Vollmer

@vollmera

I'm GitHub's Director of Platform Policy and Counsel, building and guiding implementation of GitHub’s approach to content moderation. My work focuses on developing GitHub’s policy positions, providing legal support on content policy development and enforcement, and engaging with policymakers to support policy outcomes that empower developers and shape the future of software.