A quick refresher: Under Article 13 of the new Copyright Directive, anyone who operates a (sufficiently large) platform where people can post works that might be copyrighted (like text, pictures, videos, code, games, audio etc) will have to crowdsource a database of "copyrighted works" that users aren't allowed to post, and block anything that seems to match one of the database entries.
These blacklist databases will be open to all comers (after all, anyone can create a copyrighted work): that means that billions of people around the world will be able to submit anything to the blacklists, without having to prove that they hold the copyright to their submissions (or, for that matter, that their submissions are copyrighted). The Directive does not specify any punishment for making false claims to a copyright, and a platform that decided to block someone for making repeated fake claims would run the risk of being liable to the abuser if a user posts a work to which the abuser does own the rights.
The major targets of this censorship plan are the social media platforms, and it's the "social" that should give us all pause.
That's because the currency of social media is social interaction between users. I post something, you reply, a third person chimes in, I reply again, and so on.
Now, let's take a hypothetical Twitter discussion between three users: Alice (an American), Bob (a Bulgarian) and Carol (a Canadian).
Alice posts a picture of a political march: thousands of protesters and counterprotesters, waving signs. As is common around the world, these signs include copyrighted images, whose use is permitted under US "fair use" rules that permit parody. Because Twitter enables users to communicate significant amounts of user-generated content, they’ll fall within the ambit of Article 13.
Bob lives in Bulgaria, an EU member-state whose copyright law does not permit parody. He might want to reply to Alice with a quote from the Bulgarian dissident Georgi Markov, whose works were translated into English in the late 1970s and are still in copyright.
Carol, a Canadian who met Bob and Alice through their shared love of Doctor Who, decides to post a witty meme from "The Mark of the Rani," a 1985 episode in which Colin Baker travels back to witness the Luddite protests of the 19th Century.
Alice, Bob and Carol are all expressing themselves through use of copyrighted cultural works, in ways that might not be lawful in the EU’s most speech-restrictive copyright jurisdictions. But because (under today's system) the platform typically is only required to to respond to copyright complaints when a rightsholder objects to the use, everyone can see everyone else's posts and carry on a discussion using tools and modes that have become the norm in all our modern, digital discourse.
But once Article 13 is in effect, Twitter faces an impossible conundrum. The Article 13 filter will be tripped by Alice's lulzy protest signs, by Bob's political quotes, and by Carol's Doctor Who meme, but suppose that Twitter is only required to block Bob from seeing these infringing materials.
Should Twitter hide Alice and Carol's messages from Bob? If Bob's quote is censored in Bulgaria, should Twitter go ahead and show it to Alice and Carol (but hide it from Bob, who posted it?). What about when Bob travels outside of the EU and looks back on his timeline? Or when Alice goes to visit Bob in Bulgaria for a Doctor Who convention and tries to call up the thread? Bear in mind that there's no way to be certain where a user is...
