Updated position paper: Article 13 remains a terrible idea and needs to be deleted

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Article 13 is an attack on the open internet
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Today we are publishing an updated version of our position paper on Article 13 of the European Commission’s proposal for a directive on Copyright in the Digital Single Market. Since we have published our original position paper in January of this year, Article 13 has generated an enormous amount of discussion and has emerged as the most contested part of the Commission’s proposal. The discussions within the parliament and among the Member States are still ongoing and so far there is no clear indication where these talks will end.

In the updated policy paper we re-iterate our concerns (a few of them have recently been taken up by a group of Member States in a set of questions to the legal services of the Council), analyse proposals for amending the Commission’s proposal that have been adopted in the European Parliament, and provide a set of recommendations. Our key recommendation remains to delete article 13 from the proposal as it addresses a problem that lacks empirical evidence confirming its existence. Article 13, as drafted by the Commission, would limit the freedom of expression of online users and create legal uncertainty that has the potential to undermine the entire EU online economy. As such it is unworthy of being included in a Directive proposal that is intended to modernize the aging EU copyright framework.

Read the updated position paper below. If you are familiar with the issues at hand and/or the previous version you may want to jump straight to the updated part.

Position paper: EU copyright should protect users’ rights and prevent content filtering

Article 13 of the European Commission’s proposal for a Directive on Copyright in the Digital Single Market attempts to address the alleged disparity in revenues generated by rightsholders and platforms from online uses of protected content (the so called “value gap”). The proposed article attempts to do 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 are highly problematic as they violate fundamental rights of users, contradict the rules established by 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.

The legal uncertainty embedded in the proposal and the omission of protections for users’ rights turn this initiative into an ill-targeted intervention. Furthermore, the lack of proportionality and adequacy of measures proposed pose a dangerous precedent in the European law.

What is proposed in the Directive?

In Article 13 of the Proposal for a Directive on Copyright in the Digital Single Market, the European Commission proposes that information society service providers (ISSP) that store and give access to any copyrighted materials that their users upload must take specific measures to ensure that these materials do not contain other rightsholders’ works. In other words, the ISSPs will need to adopt technology that will effectively recognize and prevent uploads of any content that includes even fragments of videos, music, pictures, and any other type of creation that belongs to someone other than the person sharing it.

The proposal specifies that these content recognition filters will have to be appropriate and proportionate to existing technological advancements, and to the services upon which they will be implemented. The Commission requires transparency in informing rightsholders about the functioning of the filtering mechanism, as well as on the recognition and use of such works.

Finally, the ISSPs would have to provide users with the ability to file complaints, and to use a redress mechanism whenever there is a dispute over how these measures are applied. The ISSPs, however, are not obliged to fulfill any transparency requirements with regard to their users as to the technology used, or how they apply their filters.

The problems with the proposal

1. Effectiveness and proportionality of undertaken measures are highly questionable

The proposal is constructed as if the only way to prevent copyright infringement is to filter user-uploaded content. All content would be subject to the filtering. This would mean that a censorship machine is implemented just in case there is an infringement of copyright. As a result, users’ activity will be constrained before any infringement happens. This approach goes against both fundamental rights and the European law.

Another misconception embedded in the proposal is the approach to how these measures should be overseen. The ISSPs will need to provide “adequate” information on the functioning and deployment of the system to the rightsholders, and also report on recognition and use of protected content.

The proposed requirements for the filtering system do not include any obligation to inform users on how the system functions, or to make rights claims transparent to end users. This leaves users without information necessary to defend themselves in case their use fits one of the exceptions or limitations. It ignores the existing common practice of blocking and/or removing content based on terms of service—as opposed to a specific legal requirement—so the measure may only be partially effective.

2. The upload filters are user-rights blind

Not every unsanctioned use of someone else’s content is an infringement — copyrighted works are regularly used without permission in quotation, parody, for private use, or under another exception or limitation. The filter likely will not recognize these types of uses, and as a result the legal use of protected material will be constrained. This type of a system, combined with an ineffective redress mechanism, will create a chilling effect that will thwart users’ rights online.

From the perspective of European case law, upload filtering goes against existing CJEU rulings, in particular the Sabam v Netlog case. Hosting providers would likely be included in the wide range of online service providers affected by the proposal even though they are explicitly excluded from any broad obligations to filter content in the Sabam ruling. In that case, the CJEU made a point to note that filtering threatens freedom of expression. Filter systems fail to strike a fair balance between copyright and the freedom of providers to conduct business, not to mention the ability of users to secure their personal data.

Within the current technological environment, the content recognition system proposed by the Directive is equal to a “system for filtering information” considered by the CJEU. As such, the Commission’s proposal is in contradiction with the E-Commerce and EU case law.

3. The proposal contradicts the E-Commerce Directive

Recital 38 defines communication to the public as storing and providing access to the public to copyright-protected works or other subject matter uploaded by users. Meanwhile, the E-Commerce Directive notes that where ISSPs provide services that store information provided by a recipient of the service, “Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service”.

It is not clear whether the Commission’s proposal widens the definition of “communication to the public”. More importantly, the proposal introduces liability for hosting services that currently benefit from the safe harbor envisioned in the E-Commerce Directive. The proposal seems to be intended to redraw the boundaries of the safe harbour protections established by the E-Commerce Directive via another Directive and as such is detrimental to the EU rule of law.

4. The proposal fails to define what users can do with protected content

The Commission’s proposal clearly aims at platforms that host so called “user-generated content” (UGC). The emergence of the internet in general—and UGC platforms in particular—have resulted in an explosion of creativity that is fueled by creative expression through the re-use of existing materials.

The European copyright framework does not provide clear and harmonized rules that define how users can re-use protected works when creating remixes and other types of UGC. Introducing filtering requirements to deal with infringing uses on these platforms without first defining what constitutes legitimate uses is harmful to users, and ultimately limits the way internet users in Europe can express themselves online.

Development in the European Parliament

As expected Article 13 has been a focal point of the discussions in the European Parliament. A significant number of amendments have been tabled in all 5 committees that deal with the proposed directive. So far, no clear parliamentary position on the questions raised by Article 13 has emerged.

Before the European Parliament entered the 2017 summer break, IMCO, ITRE and CULT committees adopted positions that propose modifications of the text proposed by the Commission. In the process it has become clear that there is no parliamentary majority for an outright rejection of the flawed approach proposed by the Commission.

Of the three opinions adopted so far, the IMCO committee goes the furthest to address the concerns that we have identified above: it clarifies the relationship with the liability exceptions established by the E-Commerce Directive by restating them. It also removes all references to content recognition technologies (the upload filters) and strengthens safeguards for users.

Even though the IMCO opinion introduces a new mandatory exception for user generated content, it fails to clearly state that the rights the users have under exceptions and limitations must not be negatively affected by measures agreed to between rightsholders and online platforms.

While the IMCO opinion would defuse the biggest problems of the Commission’s proposal, it does so at the expense of proposing legal provisions that make very little sense and are open to all kinds of interpretations that may very well negatively affect user rights in the future.

The changes to the Commission’s plan proposed in the opinions adopted by the CULT and ITRE committees do not contain anything that would meaningfully address the concerns that we have outlined above. Instead they would make the Commission’s proposal even worse.

Recommendations

Article 13 (“Use of protected content by information society service providers storing and giving access to large amounts of works and other subject-matter uploaded by their users”) should be removed from the proposal.

If the EU legislator comes to the conclusion that the existing rules that apply to information society services and the hosting providers should be supplemented by additional legal provisions, there are four important safeguards that must to be taken into account when establishing additional requirements.

First, the EU legislator should safeguard the E-Commerce regime. New legal provisions should clearly separate the entities falling under its scope (and are protected by the E-Commerce Directive exemption) from the ones that fall outside its scope. Legal provisions must not introduce general content monitoring and should be in compliance with CJEU case law. Provisions that try to target infringement of copyright-protected content on hosting services should fulfill the above mentioned criteria and should not prevent users from exercising their rights under exceptions and limitations.

Second, the EU legislator should not mandate the use of specific forms of technology to ensure the functioning of licensing agreements. Legislation needs to be future proof and given the fast pace of technological developments, it should not mandate the use of specific technologies.

Third, the EU legislator should make sure additional requirements placed on online platforms  take users’ rights into account. Any measures employed to settle disputes over the use of copyrighted content by users must respect fundamental rights. Additionally, users should have access to transparent information about the functioning of measures and/or procedures as proposed by the EU legislator to target copyright infringement. This information must be verifiable by the affected users, and users need to have meaningful ways to contest decisions regarding or actions against their uploaded content. Members states should be obliged to ensure access to courts for users whose rights may have been infringed by the measures taken. Finally, users should be represented in any fora which attempts to define best practices for functioning of the agreements and proportionate application of any measures.

Fourth, the EU legislator needs to provide a clear positive definition of the rights available to use existing content. This can be achieved by introducing in the proposed Directive a new, mandatory exception to copyright that allows noncommercial transformative uses of copyrighted works by private individuals, and their dissemination via online platforms. Rightsholders must not be granted any authority to remove or block user uploads that fall within the scope of such an exception, or any other exception.

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