Catherine Stihler, Rapporteur of the Committee on the Internal Market and Consumer Protection (IMCO) released her draft opinion on the proposed Copyright in the Digital Single Market Directive. In this opinion, Stihler rightly states that article 13, which proposes to implement content filter mechanisms that would block some of users’ uploads, fails to achieve its purpose. She tries to make sure rightsholders and creators would receive a fair and balanced compensation for the exploitation of their work without negatively impacting the digital economy or internet freedoms of consumers. Acting on this, Stihler tries to fix article 13. However, we believe that the only appropriate response is to delete it altogether.
The filter must go
It is commendable that in her opinion MEP Stihler explicitly says that any attempt to address the value gap cannot be enforced if it has a negative impact on fundamental rights and internet freedoms of consumers. This is something the potential beneficiaries of the proposed article seem to ignore.
Explaining why the upload filter must be removed, MEP Stihler states that filter machines are not capable nor suitable to take into account user rights such as exceptions and limitations. This is something all the opponents of the upload filter, including COMMUNIA, have pointed out before. Therefore in her amendments she rightfully removes all references to the ‘effective’ recognition technologies, which would make the Directive text more technology neutral and future-proof.
Keeping the E-commerce intact
MEP Stihler’s amendments would change the copyright directive so that it does not contradict the E-Commerce directive by changing the liability obligations. This is necessary, because the proposal of the Commision is contrary to the E-commerce directive.
Regarding Article 13 (and corresponding recitals 37, 38 and 39) the Rapporteur believes that the current working is incompatible with the limited liability regime provided for in Directive 2000/31/EC (Electronic Commerce Directive), a piece of legislation that has proven to be enormously beneficial for the internal market in the digital sphere.
The E-commerce directive explicitly states that a general obligation to monitor all information of a website is not allowed. Such a general obligation would be necessary if the Commission’s proposal were to be implemented.
All this makes Stihler’s proposal much better than that of MEP Marc Jolaud, the rapporteur for the Culture and Education Committee of the European Parliament.
Users’ rights protected, sort of
Although MEP Stihler understands the importance of users’ rights, she does not give them the rightful place they deserve. She emphasises that agreements between rights holders and online platforms should take users’ fundamental rights such as the freedom of expression into account, and she acknowledges that users should be a part of the stakeholders dialogue. However, it is not evident from the Rapporteur’s amendments if the agreements would take exceptions and limitations into account. This is unacceptable, because these are some of the most important rights for users that safeguard the balance of the copyright system.
Widening the scope of article 13, but without more clarity
MEP Stihler also proposes to change the scope of the article. The original article applies to ‘Information society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users’. Stihler replaces ‘access to large amount of’ with ‘to copyright protected’, but this change does not provide improved clarity or legal certainty.
It was already implicit in the article that agreements or measures would be concerned with copyright protected works—as there are no rightsholders of works that are out of copyright. Actually, this change widens the scope of the article. It would extend it to service providers that provide access to small numbers of works. This means that more service providers could fall under the scope of this article.
Good intentions do not make for good solutions
Stihler should be applauded for her consideration of users, since her amendments neutralise the most dangerous part of the article 13—the upload filter. Even though this is good news, it also reveals the obvious: there is no good reason for the article to exist.
This view is supported by scientists from the leading European research centres on intellectual property and innovation law who assess in their Open Letter that amending article 13 in a way that it would be satisfactory might be impossible. The article hardly changes anything to the current state of affairs and will be very difficult to successfully enforce. The best solution for article 13 is to delete it altogether.