Again we are witnessing an attempt to make the Frankenstein’s monster, article 13, a bit prettier as the Legal Affairs Committee’s (JURI) report has been officially published. Instead of killing it altogether with its recitals, MEP Therese Comodini Cachia tries to save the numbering of the proposal and at the same time to diffuse the bomb the European Commission set against users’ rights.
Filtering is kind of gone
The reading of the proposed article 13 text leaves no doubt that the intent is to remove the upload filter. The reference to “preventing the availability” of content uploaded by users who have no ownership over it is gone from article 13 paragraph 1. The emphasis is on effective and proportionate measures that the information society service providers need to take to ensure that the agreements they conclude with rightsholders are functioning well.
At first sight the amendments proposed for article 13 seem good. What kind of measures should be carried out is left open. It can be really anything that parties decide would work for them, be it some compensation or a share in the revenues the content users upload generates when there are ads on display. Unfortunately, looking into the recitals, it gets more complicated. Ms Comodini proposes no rewrite to recital 39 that would change the fact that the content recognition remains a go-to technology in terms of assessing the rights to uploaded content.
What are the consequences of that? It means that effectively the ISSPs and rightsholders are not encouraged to look beyond tech solutions to address any perceived disparities of income. Rather, the directive legally validates the existing market practice of employing tech such as Content ID to sort out ownership of the content. With her concept Ms Comodini may have closed the gate to filtering uploads but she left the path leading to it basically intact.
Another consequence is that if article 13 had ever meant to make Youtube weaker, by constant relying on tech solutions in settling human disputes, it equips the tech giant with an enormous competitive advantage. After all they already have Content ID.
Liability made clearer
Ms Comodini’s report addresses the very controversial issue of creating a dent in the e-Commerce Directive by introducing a very broad scope of ISSPs obliged under article 13. JURI’s Rapporteur emphasises that the user-uploaded content must be made available to the public actively and directly to fall under the obligations of article 13.
While that restores the liability rules under the e-Commerce Directive, which is a necessary move were the compromise be that article needs to 13 stay, it still leaves room for interpretation where that active and direct mode of operation starts. With the reference to “large amount of content” now removed, it could be probable to see that smaller entities fall under article 13. Also, the unclear relationship with e-commerce safe harbour remains.
Users better armed against big players
Ms Comodini takes users rights under serious consideration, first by proposing the removal of the reference to the upload filters in article 13 , but also by getting rid of the useless redress mechanism that is more a courtesy nod to common-sense justice than any effective measure to unblock what has been unfairly prevented from uploading.
Moreover, she is definitely sensitive to voices stating that the original proposal has no regard whatsoever to copyright exceptions and limitations such as quotation or parody. In paragraph 2a she proposes that member states ensure the users can communicate rapidly and effectively with rightsholders to execute their rights.
This, however, is not unproblematic. Exceptions and limitations are users’ rights and as such they should be the by-default possibility and not merely an option that users can take advantage of however rapidly and effectively. There is no evidence that any existing technology can recognize an application of an exception and the law should not be made based on an assumption that someday it will.
Similarly, it is great to read that the member states should ensure access to a court for the purpose of asserting users’ rights. But despite these well-intended moves, Rapporteur Comodini follows the general direction of the EC proposal that leads to nowhere promising. These interventions bring in state power where the market players cannot handle a civilised dispute. Even after Ms Comodini’s amendments, the intervention will fail to account for user’s rights and it will lead to even more fragmented responsibility. It is an example of state interventionism that serves short-term gains of large scale players rather than the long-term benefit of the society.
Putting makeup on a corpse
It would be unfair not to commend Rapporteur Comodini for the hard work she put into reconciling the need to keep the spirit of the article with defusing its explosive parts. It is a bit sad that the end result is only slightly better than the original, which is not good enough if there are fundamental rights in question. If anything, Ms Comodini’s exercise proves that even with the best legislative mind article 13 is not possible to be significantly amended. As before, we advocate that the life support on that corpse be finally switched off.
Our opinions on other aspects of JURI’s draft report: