More academics speak out against upload filters for online platforms

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Article 13 is incompatible with fundamental rights
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It seems like it is open letter writing season in Brussels right now. In the absence of any real legislative progress the directive on Copyright in the Digital Single Market, experts and other stakeholders are seizing the opportunity to make their voices heard. After more than 50 civil society organisations including Human Rights Watch, Reporters sans Frontiers and the Freedom of the Press Foundation issued a statement opposing the online filtering provisions proposed in article 13 of the Commission’s proposal, a group of more than 50 high profile copyright scholars has come forward with yet another statement opposing article 13.

In their paper “The Recommendation on Measures to Safeguard Fundamental Rights and the Open Internet in the Framework of the EU Copyright Reform” published on SSRC statement, the academics led by Professor Martin Senftleben (VU Amsterdam) restates the main problems posed by article 13 and recital 39:

The measures contemplated in Article 13 DSMD can hardly be deemed compatible with the fundamental rights and freedoms guaranteed under Articles 8 (protection of personal data), 11 (freedom of expression) and 16 (freedom to conduct a business) of the Charter of Fundamental Rights of the EU. The application of filtering systems that would result from the adoption of Article 13 DSMD would place a disproportionate burden on platform providers, in particular small and medium-sized operators, and lead to the systematic screening of personal data, even in cases where no infringing content is uploaded. The filtering systems would also deprive users of the room for freedom of expression that follows from statutory copyright exceptions, in particular the quotation right and the right to parody.

The adoption of Recital 38 DSMD would moreover lead to a remarkable restriction of eligibility for the liability privilege following from Article 14 of the E-Commerce Directive. Recital 38 DSMD does not adequately reflect the current status quo in the area of the safe harbour for hosting laid down by Article 14 E-Commerce Directive. […] The general requirement of “knowledge of, or control over” infringing user-generated content is missing. In the absence of any reference to this central requirement, Recital 38 DSMD is incomplete and fails to draw an accurate picture of the current conceptual contours of the safe harbour for hosting. […] Because of the ambiguous wording of Recital 38 DSMD, there is a real risk of modifying the notion of “communication to the public” considerably.

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Strong voice of civil liberties organisations against censorship in copyright framework

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Anyone following copyright debate may have an impression it is all about “money, money, money” (Abba). In COMMUNIA we believe that such an approach shows deep misunderstanding about the function of copyright. Copyright is just one angle of approaching more broader challenge, namely providing a just framework for to access to knowledge, information and culture. A well balanced copyright system is one of the fundamental underpinnings of a knowledge-based society.

Possibly the strongest challenge to such as system is are the proposals for forcing online platforms to filter all content uploaded by their users, put down in article 13 of the proposed Directive on copyright in the Digital Single Market. We have underlined many times before that proposed regulation will have a chilling effect on sharing content, access to information and the the ability to operate open platforms online.

Today, over 50 NGOs (including COMMUNIA) representing human rights and media freedom have send today an open letter to the European Commission President, the European Parliament and the Council asking them to delete the content filter mechanism. This letter comes ahead of a crucial vote in the European Parliament’s Civil Liberties committee, in which the MEPs tasked with upholding our fundamental freedoms will give their opinion on the upload filters that the Commission wants to introduce through article 13. The signatories of the letter, which include many prominent human rights organisations like the Freedom of the Press Foundation, Human Rights Watch and Reporters without Borders, believe that the mechanism introduced through article 13:

  • would violate the freedom of expression set out in the Charter of Fundamental Rights;
  • provokes such legal uncertainty that online services will have no other option than to monitor, filter and block EU citizens’ communications.; and,
  • includes obligations on internet companies that would be impossible to respect without the imposition of excessive restrictions on citizens’ fundamental rights.

If the European Union decides to approve the European Commission’s proposal, this would constitute an unprecedented step towards building an online censorship infrastructure. Similar filtering obligation have previously been rejected in the context of preventing terrorism and hate speech. Continue reading →

European Parliament Research Confirms The Obvious: Press Publishers’ Right A Terrible Idea Good For No One

Karikatuur van Franse censoren
No new rights for press publishers!
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This week we learned about a research study requested by the Legal Affairs committee regarding the potential impact of Articles 11 and 14-16 of the Commission’s proposed Directive on Copyright in the Digital Single Market. The research was overseen and published by the Policy Department for Citizens’ Rights and Constitutional Affairs.

We are especially interested in the assessment of Article 11—the provision that would create new rights in press publications that would allow to press publishers to control digital uses of even the smallest snippets of their content. COMMUNIA has long advocated that the press publishers right should be removed from the proposed directive. Not only is the mechanism ill-suited to address the challenges in supporting quality journalism, it would have the effect of decreasing competition and innovation in the delivery of news, limit access to information, and create widespread negative repercussions for related stakeholders.

The European Commission, which came up with this idea, has offered no data about how a new right would increase revenues to sustain a free and pluralist press.

On the other hand previous Academic research as well as statements from the media companies themselves confirm that Article 11 won’t accomplish  its aims, and is a danger to access to news online. The independent analysis commissioned by JURI conforms this once again, which should finally put the nail in the coffin on the press publishers’ right. The report concludes:

There are real concerns surrounding the rather uncertain effects of the right, and many of the problems facing press publishers can be resolved by a much less controversial intervention. We therefore approve the proposal made in the draft JURI Opinion, namely that the press publishers’ right be abandoned and replaced with a presumption that press publishers are entitled to copyright/use rights in the contents of their publications. (p. 8)

The authors of the research take a look at instances where a press publishers’ right has already been implemented, such as Germany and Spain. They conduct interviews with stakeholders on the ground to analyse the implications and effects of the ancillary rights there.Continue reading →

The European Parliament should be talking about DRM, right now!

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Anti-circumvention laws have to be fixed!
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The European Union is currently discussing a reform of its copyright system, including making mandatory certain copyright exceptions, in order to introduce a balance into the system. However, no one, except Julia Reda, is paying any attention to one of the biggest obstacles to the enforcement of copyright exceptions in the digital age: technological protection measures (TPM), including digital rights management (DRM). In this blogpost we will present the reasons why the European Parliament should not lose this opportunity to discuss a reform of the EU anti-circumvention rules.

No balance between anti-circumvention prohibitions and users rights

The InfoSoc Directive incorporates rules regarding the protection of TPM in articles 6 and 7, which do not adequately take into account users rights created by copyright exceptions and limitations. First, Member States are only obliged to guarantee that users can access and use a TPM-protected work in relation to a closed-list of “privileged exceptions”. Beneficiaries of the remaining exceptions are not able to exercise their rights when a work is protected by TPM. Second, only certain privileged users—those who already have legal access to the work—have the right to require the technical means to benefit from the selected exceptions. Finally, the rules that are aimed to protect users do not apply to on-demand online services.

According to the European Parliament’s 2015 impact assessment study, the EU anti-circumvention rules are intend to restrict the exercise of users rights under the exceptions: 

The very narrow scope of application of this mechanism evidences a clear intent of the InfoSoc Directive to restrict considerably the enforcement of copyright exceptions in light of their increased economic impact in the new electronic environment (cf. Recital 44). (pg. I-84)

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What will be the “Future Made in the EU” after the copyright reform?

A Future Not Made in the EU
Innovation needs a better copyright
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Science fiction usually mirrors contemporary challenges and anxieties better than the future it tries to predict. Nevertheless, that does not stop creators from imagining that future. Rightfully so, even if as nowadays the technology advances so fast that some concepts age before they have a chance to be applied.

Centrum Cyfrowe, a Polish COMMUNIA member, does not usually deal with science fiction, but the ongoing yearlong debate on the copyright reform has unexpectedly directed them towards speculative design in modeling the future. A Future not Made in the EU campaign presents future objects and services that may enhance cultural and educational experience, but their future is uncertain – their utility does depend on whether the copyright reform addresses future challenges properly.

DigiDermis – touch the digital for real

 

Meanwhile, the law is usually drafted based on the past experiences rather than on recognising future challenges. The longer we are in this debate, the better we can see that looking backwards to regulate participation in increasingly digital culture may result in fatal consequences.

If the authors and contributors to the copyright reform look behind their shoulder while drafting it, we will end up stuck in the analogue era. Specifically, Europe will end up like this. The rest of the world will advance forward.

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New Estonian council compromise proposal: Another missed opportunity for TDM in Europe

De zanderij
The right to read must be the right to mine!
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The Council of the European Union, currently led by the Estonian Presidency, has published an updated compromise proposal regarding Articles 2 to 9 of the Commission’s draft directive on copyright. The Estonian proposal will be discussed among the Member States next week at the meeting of the Copyright working party.

The minor tweaks to the exception for text and data mining offered in this recent draft—as well as the earlier changes suggested in the Maltese compromise proposal from 8 May —are inadequate to supporting research and innovation in the European digital single market.

Where the Commission’s original plan only permits “research organisations” to take advantage of the exception, the new Council’s compromise proposal would extend the beneficiaries to include “cultural heritage institutions.” At first glance this addition would seem welcome because it expands (albeit narrowly) to an additional beneficiary group. But this meager edit ignores the larger concern that citizens and  private sector organisations still will be excluded from the benefits of the exception. As we’ve argued, this is clearly not aligned with the goals of the reform to promote activity in the digital single market.

In addition, the Council compromise proposals do not change the problematic limitation that TDM may only be carried out strictly for “purposes of scientific research.” We’ve criticized the Commission’s short-sighted approach in only permitting TDM to apply to scientific research. Such a restraint will surely decrease the potential impact of novel TDM uses, such as for journalism-related investigations, market research, or other types of activities not strictly considered “scientific research”. Continue reading →

EU-Mercosur trade agreement is poor copyright policymaking conducted in the dark

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Users' rights must be expanded
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This week Creative Commons published an analysis of some of the copyright-related provisions contained in the trade agreement currently being negotiated between the European Union and the Mercosur bloc. The EU and this South American sub-regional group of Argentina, Brazil, Paraguay, and Uruguay have been in talks about the free trade agreement (FTA) since 2000. The EU-Mercosur negotiations are situation during a time when several of the affected countries—including Argentina, Uruguay, Paraguay and of course the EU—are involved in a review of their own copyright legal frameworks.

Tabled copyright rules protect powerful stakeholders, ignore public interest

As expected, the copyright provisions of the intellectual property chapter are nothing to write home about. The CC analysis shows that the policy direction suggested by the negotiators would be detrimental to the public domain, creativity and sharing, and user rights in the digital age.

For example, the draft IP chapter recommends a copyright term extension for those countries that don’t already follow the life + 70 term. It upholds more than adequate measures for protection and enforcement of rights, but doesn’t include similar safeguards to protect users rights and balanced approach to copyright. The draft IPR chapter includes prohibitions to circumventing technological protection measures to gain access to a work, as well as  a provision that would prohibit the creation and sharing of technologies that could enable a user to circumvent technological protection measures. You can read the full policy analysis here. Continue reading →

Commission pushes inconvenient copyright research down the memory hole

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An inconvenient truth about online infringement
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This week MEP Julia Reda shared an unpublished report of a study examining the effects of copyright infringement on sales of creative works. Apparently the contract for the economic research was tendered by the Commission in 2014 for €360,000. It was completed in 2015 but never published, and Reda received a copy of the report after several freedom of information requests.

The background of the study hinges on the assumption that “illicit use of copyrighted material reduces revenues of rights-holders and thus their incentives to produce content.” (p. 19). As our friends at EDRi are pointing out, this assumption is one of the underlying motivations for the Commission’s deeply flawed crusade against open online platforms. So what does the research show? From the report (our emphasis):

In 2014, on average 51 per cent of the adults and 72 per cent of the minors in the EU have illegally downloaded or streamed any form of creative content […] In general, the results do not show robust statistical evidence of displacement of sales by online copyright infringements.” (p. 7)

This result is not shocking. Many online content providers are finding that users will pay for content when that content can be conveniently accessed at a fair price—hence the significant growth of popular online film and television streaming services like Netflix. But this is not the narrative that the Commission wishes to promulgate, as it doesn’t fit their worldview. Or more accurately, it doesn’t align with the interests of the incumbent content industries, who, as we’ve argued, want nothing more than “to minimize the impact of the fundamental changes brought about by digital technologies and the internet on legacy business models.”

One assumes that the findings from this study would have been a useful input into the Commission’s proposal for the Directive on Copyright in the Digital Single Market. And surely it would have been interesting to creative sector economists, the startup and technology communities, consumer rights organisations, civil society advocates, and the public at large. Instead, the Commission pushed ahead and introduced restrictive copyright reforms that blindly tries to stop something, which according to research commissioned by the Commission itself is not a problem.

This incident makes a few things crystal clear: 1) the Commission has confirmed it has no interest in pursuing evidence-based policymaking, and 2) freedom of information laws are an increasingly vital tool by which to shed light on the shady workings of some public institutions.

Germany to Commission: Article 13 endangers the competitiveness of European enterprises

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Germany says upload filters may be illegal
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Two weeks ago we highlighted the fact that six EU member states had asked questions to the Council legal service about the legality of Article 13 of the proposed Digital Single Market directive. Yesterday it emerged that the government of Germany also has serious concerns about Article 13 and asked its own set of questions to the Council legal service. As our friends at copybuzz.com point out, this move by Germany adds a lot of weight to the questions raised by Belgium, the Czech Republic, Finland, Hungary, Ireland and the Netherlands before the summer. While the questions asked by the German document more or less mirror the concerns of the other six member states, there are also some important differences.

A lot of the concerns raised by the six member states centered on the relationship between the Commission’s proposed Article 13, user rights granted under exceptions and limitations, and the rights enshrined in the EU fundamental rights charter. In contrast the intervention by the German government seems to be motivated by a different set of concerns. In the introductory paragraph of the document they write (emphasis ours):

We welcome the fact that the Commission has addressed the matter of how to fairly distribute the value created by internet platforms. We must ensure that creative individuals receive fair pay, also if their work is available on the internet. Concurrently, platforms must not be jeopardised in their function as a societal medium of communication. Moreover, it must be ensured that the competitiveness of European enterprises and the freedom of scientific communication are not impaired.

Based on this is seems clear that the German government is primarily worried about the potential negative impacts that Article 13 would have outside the narrow confines of the music industry. The German government is concerned that the Commission, driven by the the music industry’s desire to cripple the liability exceptions of the E-Commerce directive, will undermine the economic basis for much of Europe’s digital economy.

A threat to the digital economy and academic research

Similar to the six member states before it, the German government is not at all convinced that the Commission’s proposal will leave the legal principles established by the E-Commerce directive intact. From the German point of view this is especially worrisome as the liability exceptions apply to many platforms other than the video sharing and social media services targeted by the music industry. And while the music industry is without a doubt an important contributor to the EU economy, so are other sectors that rely on online platforms and the protections granted by the E-Commerce directive (see for example this excellent report by the Open Forum Europe and the Free Software Foundation Europe that highlights how Article 13 would create substantial burdens for collaborative software development in the EU). Continue reading →

Leading Academics: Article 13 is incompatible with EU law and must be deleted

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There is no place for upload filters in EU law!
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Last week (the same day that we published an updated version of our position paper on article 13) our friends at copybuzz pointed to a paper by The Max Planck Institute for Innovation and Competition on article 13, published in response to a set of questions raised by six EU member states over the summer. As we have reported here, the questions related to the relationship between the measures proposed in article 13 and recital 38 of the Commission’s proposal and the existing EU legal framework (the E-Commerce Directive, the InfoSoc Directive and the Charter of Fundamental Rights of the EU).

The questions posed by the member states already implied that article 13 and recital 38 would violate a number of legal concepts established by existing legislation. The answers provided by the Max Planck Institute confirm this. As the paper, authored by Prof. Dr. Reto Hilty and Dr. Valentina Moscon points out, there are serious problems with all 4 aspects of the proposal that have given rise to the member state’s queries. Based on their analysis the Hilty and Moscon come to the same conclusion as we did in our own position paper:

Therefore, it is inadvisable to adopt Article 13 of the proposed Directive and its respective Recitals, 38 and 39. (page 2)

This opinion is based on an analysis that finds that the Commission’s proposal would create legal uncertainty, would risk conflicting with the user rights (exceptions and limitations) granted by the InfoSoc Directive, would be inconsistent with the E-Commerce Directive, and could enable abusive behaviour that threatens fundamental human rights, such as the freedom of expression and information.

A scathing takedown of the Commission’s Proposal

All in all, the responses to the questions posed by the six member states read as a scathing takedown of the Commission’s Proposal. Continue reading →