Friday, March 29, 2019

Swedish government may have to vote against copyright bill in EU Council: Riksdag Committee on EU Affairs will decide

The triply illegitimate European Parliament vote in favor of a copyright bill requiring upload filters (as the French government, its #1 proponent, has since stated clearly and German EU commissioner Günther Oettinger considers "not entirely avoidable")=should be repeated as Czech conservative MEP Tomáš Zdechovský formally proposes. But in any event, it's not yet a "settled matter" as Mr. Oettinger, who initially came up with the ill-conceived proposal that led to this mess, just claimed in an interview in which he threatened sanctions against countries that might "water down" the text through the national implementation process. The EU Council still has to formally adopt the bill, and since it's clearly irreconcilable with the German government coalition agreement, let's see what happens.

The following tweet (in Swedish) greatly increases the likelihood of the Swedish government, which supported the political agremeent in February, being forced to change its stance and vote against the bill (this post continues below the tweet with further commentary and analysis):

Tomas Tobé is the top-listed candidate of the Moderaterna ("Moderates"), the Swedish conservative party that is a member of the European People's Party (EPP) just like Merkel's CDU/CSU, and he's presently the vice chairman of the Swedish national parliament's Committee on European Union Affairs. A Swedish Twitter friend of mine translated Mr. Tobé's tweet as follows:

"We should force the government to say no. They had no mandate to say yes."

Mr. Tobé was replying to Amelia Andersdotter, a former Pirate Party MEP from Sweden. Amelia and I disagree on economic and migration policies (anyone connected to one of us on Facebook could tell), and her IP reform proposals go far beyond not only mine but also the ideas espoused by the more centrist Julia Reda MEP, the leader of the fight against the copyright bill in the European Parliament (who just left the German Pirate Party and wasn't seeking reelection anyway). Anyway, Amelia is famous in Sweden, and it's great to see she's fighting for this cause.

Mr. Tobé's reply to Amelia is very significant. As the Riksdagen website explains (in English), the Swedish government "must gain support for its EU policies in the Riksdag ahead of meetings in the Council of Ministers."

I haven't received definitive confirmation yet, but I've been told that this committee will meet on Friday, April 5, and will then have to hold a vote on the copyright bill. Let's consider three facts here:

  • All Swedish MEPs except for a couple of social democrats had expressed their intent to vote against upload filters (Article 13, now Article 17). The Sweden Democrats are also clearly against upload filters, though their MEPs accidentally hit the wrong button.

  • Sweden, with Spotify and some other digital businesses, is actually stronger in the Internet platform economy than any other EU Member State (even far larger ones).

  • While the Moderaterna party isn't currently part of the Swedish government, the left-green government coalition is a minority government, making it particularly dependent on parliamentary decisions.

In light of all of the above, it's reasonably likely that the Riksdag's EU affairs committee will vote against the copyright bill, and the Swedish government will have to vote accordingly.

The most important aspect of this is the potential fallout with a view to Germany. Even with Sweden changing its vote from Yes to No, we're still far short of a blocking minority as I'll explain further below. But Germany could single-handedly block the deal (as could the UK, by the way, though there's little hope of that happening). A Swedish reversal would embolden and encourage those who'd like the German government to withdraw its support.

The Social Democratic Party of Germany (SPD), Merkel's coalition partner, has so far tried to have its cake and eat it: they spoke out and almost all of their MEPs voted against upload filters, but they caved to a clear breach of the coalition agreement by Merkel and her minister of economic affairs, Peter Altmaier. Here's the relevant passage from the coalition agreement (lines 2212-2214):

"Eine Verpflichtung von Plattformen zum Einsatz von Upload-Filtern, um von Nutzern hochgeladene Inhalte nach urheberrechtsverletzenden Inhalten zu 'filtern', lehnen wir als unverhältnismäßig ab."

Here's my unofficial translation:

"We consider disproportionate and therefore oppose a requirement on platforms to install upload filters for the purpose of 'filtering' out user-generated content based on copyright-infringing content."

Pressure on the SPD will grow should Mr. Tobé's plan work out in Sweden. And then the numbers would be in place to prevent the bill from being passed into law.

As for the numbers, I've obtained from the EU Council's press office the current list of population sizes that is used in the computation of a qualified majority. A qualified majority in the Council has two prongs:

  • They need at least 15 Member States to support a proposal, and

  • the countries voting in favor must collectively account for at least 65% of the EU's total population size.

Conversely, a blocking minority can consist of either

  • 13 countries (but we only have five, so this is unrealistic), or (now comes the far more achievable option)

  • at least four countries collectively accounting for more than 35% of the EU's total population size.

With a view to the copyright bill, we still had five countries on our side in February. In decreasing order by size: Italy, Poland, Finland, the Netherlands, and Luxembourg.

Pre-Brexit, those countries collectively account for 23.88% of the EU's total population size. With Sweden, that number would go up only marginally to 25.86%. So we'd still need a lot more support for our cause. We'd need Germany--that's ground zero. With Germany in our column, we wouldn't need Sweden--but a Swedish reversal would make it far harder for the German government to stand by the directive and its horse trade with France.

Should there be delays and Brexit occur (currently scheduled for April 12), the five "dissident" countries from the February Council meeting account for 27.42% of the EU-27's total population size, and with Sweden we'd have 29.69%, in which case the combination of a few small countries might also work without Germany. But without Germany on our side, the Council will most likely adopt the bill on April 8 or 9 anyway.

I'll keep my fingers crossed for the Riksdag's Friday decision. It could set off an avalanche, not in terms of the number of countries but the ability to improve the prospects of a German reversal. Maybe the SPD would then have the courage to jeopardize the stability of the German government coalition, as Julia Reda MEP said this week they'd have to in order to show they're truly opposed to upload filters.

In this context, let also point you to a press release by the Foundation for a Free Information Infrastructure (FFII) calling on national parliaments to force their governments to vote against "Soviet-style Internet upload filters."

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