Thursday, February 28, 2019

Analysis shows initial headway against Article 13 of EU Copyright Directive, but not enough just yet

After the legal affairs committee (JURI) of the European Parliament rubberstamped, with a solid but unsurprising 16-9 majority, an interinstitutional agreement on the EU Copyright Directive, it became known that the decisive plenary vote will be held the last week of March. That same day (Tuesday), Germany's Federal Commissioner for Data Protection and Freedom of Information, Ulrich Kelber, issued a statement highlighting the risk of a further concentration of data traffic among a few large Internet companies as a result of a de facto requirement for upload filters.

Also in recent days, a rap video in which some YouTubers vent their frustration over the bill and "diss" (= insult in rap terms) the Parliament's rapporteur, Axel Voss MEP (from Merkel's party), has been viewed more than 400,000 times, but what's needed to prevent the Article 13 disaster is plenary votes, not YouTube clicks.

Of course, voters can indirectly influence the Parliament. Demonstrations will take place in many (mostly Central European) cities on March 23 (the Saturday before the vote). However, it would take huge numbers of protesters (and preferably not only in Germany) to influence the outcome. I visited the Facebook event pages where people can declare their intent or interest to participate, and for each of the cities I looked at, the number of people who announced they would come was in the hundreds. However, thousands of mostly young people took to the streets of Cologne last Saturday, and that demonstration had been announced only three days before. So there still is a potential for many people showing up on the 23rd.

One of the efforts to get MEPs to vote against Article 13 is the website, where MEPs can promise to vote accordingly. As of this morning, 62 MEPs (out of 751) had made the pledge. This, too, is not a bad number after only a few days. But ultimately the question of whether Article 13 will or will not be passed into law is a matter of numbers, so I wanted to analyze the Pledge2019 results and generally take a closer look at the vote the Parliament held in September 2018 on Axel Voss MEP's negotiating mandate.

A spreadsheet with key voting results from September 2018 is available on Google Docs. I downloaded the document and performed some further analysis.

It's important to bear the procedural stage in mind. In September, it wasn't yet about enacting a law, but about a negotiating mandate--but obviously the question was on what basis the Parliament would negotiate with the other institutions (Council and Commission).

The mandate per received a massive 440-225 majority. And the majority against the deletion of Article 13 was even more overwhelming: 510-167. But that's only part of the story.

The vote was substantially closer (though still not what I'd call a "narrow" outcome in a strict sense) on two alternative versions of Article 13. Mr. Voss's version was approved by 365-300, while Julia Reda MEP (a Pirate Party MEP, vice chair of the Greens-European Free Alliance group in the Parliament, and the leader of the resistance movement) received only 278 votes for what would have been her (in my words) "lesser evil" version of the article--and 390 MEPs voted against said lesser evil.

What hardly anybody (only 3 MEPs) did was to support Mr. Voss's version of Article 13, but to prefer the deletion of the entire article. Those who voted for Mr. Voss's proposal also wanted that one to become law. Also, out of the 365 MEPs who voted for Mr. Voss's version of Article 13, 351 also supported his negotiating mandate. This, again, shows that his supporters were determined to achieve a certain outcome. Another number that proves this point is that 370 MEPs opposed Mrs. Reda's attenuated version of the article and equally opposed deletion.

In late March, the proposal to delete Article 13 will be key, and there's no doubt it will get far more votes than the 167 from September. The starting point will then actually be who voted against Mr. Voss's text (as I wrote above, 300 MEPs). Another number underpins this theory: 121 MEPs voted in favor Mrs. Reda's version, yet opposed deletion of the article at that procedural stage. Most of them will likely support deletion next time.

Still, the key question is: how can we close the gap between 300 (the number of MEPs who opposed Mr. Voss's text; the trilogue outcome is different, but arguably worse) and 365 (the number of MEPs who voted for Mr. Voss's version).

The problem this time around is that the proponents of the bill will argue that a provisional interinstitutional agreement should be rubberstamped, and they'll point to various carveouts, too. But concerns over Article 13 will be taken more seriously, and the statement by German's chief data privacy official (mentioned further above) is an example of what may lead many MEPs to have second thoughts.

With all of that in mind, let's now look at whether Pledge2019 shows some momentum toward rejection. There's definitely a glimmer of hope, but it will be a Herculean task in March to turn this around.

Here's a table that highlights how the MEPs who made the pledge voted last September on the questions of (a) deleting Article 13 and (b) granting Mr. Voss a negotiating mandate, highlighting with a yellow background when someone's vote was "Voss-friendlier" in September than this month's pledge (this post continues below the document with further analysis):

19-02-28 Pledge 2019 vs. 18... by on Scribd

The above document is sorted by political group first (starting with the right wing and moving down toward the left, where there's traditionally been strong support for the anti-Article 13 cause), country second, last name third.

The really big wins are those MEPs who have two yellow fields: they voted against the deletion of Article 13, but for Mr. Voss's negotiating mandate, in September, and now they're definitely opposed to Article 13.

Those big wins have mostly been scored in Austria so far, but a prominent German Green MEP (former Green party chairman Reinhard Buetikofer) is another example.

What's also positive, though not a major breakthrough, is when MEPs who already voted against the negotiating mandate in September, but not for the deletion of Article 13 at the time, are now in favor of deletion. If we can't even get their support, we're totally lost because only a minority supported deletion per se in September.

It's not surprising that MEPs who voted against the negotiating mandate in September largely preferred Mrs. Reda's version of Article 13 over Mr. Voss's proposal.

A lot can happen in one month, and we can still defeat Article 13. Pledge2019 shows progress toward that goal, but there's still a high risk of all that progress being "too little, too late" come the late-March vote.

What has me profoundly concerned is that Pledge2019 reflects headway in only some countries, and almost exclusively on the left wing. The largest group in the Parliament is the European People's Party. In order to win, one needs at least some significant traction with their MEPs. Mr. Voss is an EPP MEP, so it's going to be hard to persuade his colleagues to go against the Parliament's rapporteur and chief negotiator. But it is possible.

Wht makes the late-March vote particularly hard to predict is that this is an election year. The number of absentees is always relatively high when the Parliament votes, but this time around--the copyright vote will be just two months before EP elections--it's likely going to be even higher (though it depends on the exact day). What we might be able to achieve is that a significant number of EPP MEPs would, instead of openly opposing Mr. Voss, simply stay away on the day of the day of the copyright vote. They can always blame it on the election campaign. If we dissuaded, for instance, 30 EPP MEPs from participating in the vote though they normally would attend and support Mr. Voss, and if we then firmed up our support among some other parties along the lines of what has happened with some Austrian center-left MEPs and the aforementioned German Green MEP, then we could score a narrow victory!

Would I bet money on a positive outcome today? To be honest, I wouldn't yet. The risk is still very high. But if there's significant headway every single week of March, then a turnaround is achievable.

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