Marc Joulaud, the rapporteur for the Culture and Education Committee of the European Parliament, points out in his draft opinion issued last week that the Commission’s copyright proposal ignores many of the most pressing concerns of internet users. At the same time, he fails to deliver adequate solutions to these problems. In this post we discuss his proposed amendments concerning the exception for user-generated content (UGC), and Article 13. The inclusion of a UGC exception is a step in the right direction. But the proposed amendments to Article 13, the section which introduces a filtering obligation for online platforms that allow users to upload content, make the already-harmful article even worse for users.
Adding a vague definition of ‘digital content platforms’
Joulaud recognizes that the scope of services potentially affected by Article 13 is quite unclear.
It is the Rapporteur’s opinion that the proposal does not define with enough precision the scope of services falling under the requirements of Article 13 of this Directive, creating legal uncertainty and a potential broader effect.
However, the solutions he proposes do not strengthen the legal certainty for those entities who might be covered under the article; they make it worse. Joulaud proposes a new definition of entities obliged to use upload filters called ‘digital content platforms’. This definition is aimed to center around the principle purpose of services instead of the activity of storing. The draft opinion is unclear regarding which information society service providers would count as ‘digital content platforms’, and it’s also uncertain whether these platforms would still receive the protection of the liability limitations of the eCommerce Directive. Just like the Commission’s proposal—which remains vague on how it will affect the safe harbor protection—Joulaud’s suggested amendment doesn’t provide any more clarity to the situation.
Upload filters don’t—and can’t—respect user rights
The most important flaw of the draft opinion is that even though Joulaud seems aware of the importance of user rights, he still tries to reconcile ‘effective’ content recognition technologies with user rights, including exceptions and limitations and freedom of expression. This is an impossible task.
Article 13, as proposed by the Commission and also reiterated by Joulaud’s opinion, will require monitoring and possibly a filtering mechanism for online platforms that permit users to upload content. Upload filters cannot recognize existing freedoms such as the right of quotation or parody. The draft opinion ignores case law of the Court of Justice of the European Union that states that monitoring content is in breach with freedom of expression and privacy.
Joulaud’s proposed amendments would still enable filtering by content-recognition technologies, and seem to be concerned with addressing exceptions and limitations only when complaints are made (see description of redress mechanism in Amendments 73 and 74). For instance, the opinion proposes that users should have access to sufficient information on the relevant exceptions and limitations that may apply to content (already) affected by content recognition technologies. Even though we understand this addition attempts to provide more information for users, it’s a poor substitute considering the blunt instrument of the automatic content filtering that would be in place.
Any legislative requirement aimed at addressing the unauthorized use of third-party content needs to respect the freedoms enshrined by exceptions and limitations to copyright. These freedoms cannot be adequately respected if there is a general obligation to filter user-uploaded content.
A failed attempt to embrace user rights
Joulaud tries to strengthen users’ rights by including an amendment to require Member States to provide for an exception for user-generated content (UGC). This is a positive addition, and we’ve advocated for just such an exception.
Joulaud acknowledges that users are now both consumers and producers of creative content in the digital ecosystem. His proposed exception would allow digital use of quotations or extracts of works and other subject-matter by users for purposes such as ‘criticism, review, entertainment, illustration, caricature, parody or pastiche’. Contractual provisions could not override the exception, an important safeguard. We applaud Joulaud for introducing this amendment, and we hope to see it in the final Directive.
Even though Joulaud’s opinion attempts to address some of the shortcomings in the Commission’s proposal, we still end up with a mixed message with regard to whether his proposed solutions truly support user rights. We embrace the introduction of the the UGC exception, but the amendments concerning Article 13 do not provide clarity or policy recommendations to uphold user rights and freedoms.