Today we are publishing the fifth in a series of position papers dealing with the various parts of the European Commission’s proposal for a Directive on Copyright in the Digital Single Market (the previous papers dealt with the education exception, text and data mining, the press publisher’s right and freedom of panorama). The paper deals with article 13 of the Commission’s proposal which introduces a filtering obligation on online platforms that allow users to upload content (such as facebook, youtube flickr and many other online services). The proposal fails to establish clear rules for internet users that make it clear how they can share and remix content legally. Instead it introduces a filtering requirement for online platforms that can potentially serve as a censorship machine and will violate users’ fundamental rights and distort the existing legal framework. From our perspective article 13 and the related recitals should be deleted from the proposal (You can download a pdf version of the position paper here).
Position paper: Use of Protected Content by Information Society Service Providers
Article 13 of the European Commission’s proposal for a Directive on Copyright in the Digital Single Market attempts to address the disparity in revenues generated for rightsholders and platforms from online uses of protected content. The proposed article attempts this by introducing an obligation for “Information society service providers that store and provide to the public access to large amounts of works” to filter user uploads. It would also require these providers to set up licensing agreements with rightsholders.
These proposed measures, however, do not address the issue adequately; instead, they violate fundamental rights of users, contradict the E-Commerce Directive, and go against CJEU case law.
The measures proposed in the Commission’s proposal stem from an unbalanced vision of copyright as an issue between rightsholders and ‘infringers’. The proposal chooses to ignore limitations and exceptions to copyright, fundamental freedoms, and existing users’ practices. In addition, the proposal fails to establish clear rules with regard to how citizens can use protected works in transformative ways—such as remixes and other forms of so-called “user-generated content” (UGC). As a result, a system of this kind would greatly restrict the way Europeans create, share, and communicate online.