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

Anatomische les van professor Paaw
There is no place for upload filters in EU law!

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. On the question if article 13 would preserve user rights and if it is in line with the charter of fundamental lights, the authors bluntly state:

No, the Proposed Article 13 entails serious risks of contrasts with the Charter of Fundamental Rights as well as with copyright exceptions. […] the proposal imposing content recognition technology and procedures – that are ultimately related to the obligations set for “Information society services providers that store and provide to the public access to large amounts of works or other subject matter uploaded by their users” in the first sentence of the first paragraph of the proposed Article 13 – can lead to a significant limitation of the fundamental rights including freedom of expression and information. For example, content pertaining to political opinions or admissible parody could be blocked.

In response to the question on the relationship between the proposal and the liability limitations established by article 14 of the E-Commerce Directive (ECD), the authors are equally clear:

Article 13 of the Directive proposed by the European Commission contains a series of undefined legal concepts that make it difficult to identify points of contact and differences of the proposal with the E-Commerce Directive. In particular, the proposal does not contain any explanation or definition concerning which service providers are to be qualified as “information society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users”. How much importance is given to the criterion “large amounts” is questionable: for instance, whether it is of relevance whether commercial (e.g. YouTube) or non-commercial platforms (e.g. Wikipedia) offer services.

As a result the authors conclude that it is neither appropriate “to modify the ECD’s horizontal application and interpretation” by way of the proposed language in recital 38 nor that it would be sufficient to replace the language in recital 38 with a “without prejudice to the provisions of the EDC clause”. In other words, the only way to deal with recital 38 is to delete it.  

In response to the third question (can article 15 of the ECD, which prohibits member states to impose a general obligation to monitor, be interpreted as allowing member states to impose the upload filters required by article 13?), the authors again answer the question in the negative:

No, obliging certain platforms to apply technology that identifies and filters all the data of each of its users before the upload on the publicly available services is contrary to Article 15 of the InfoSoc Directive [sic!][…]. In fact, infringing content cannot be effectively recognized on a platform by means of a technological tool without the oversight of the totality of the content on that platform. This is made clear by Annex 12A of the Impact Assessment supporting the proposal (p. 164-165). As it explains, content recognition technologies check each piece of content that an end user attempts to upload onto the service.

The answer to the final question of the member states (Does recital 38 constitute an attempt to broaden the concept of “communication to the public” and therefore the scope of copyright?) is somewhat more complicated. What is clear however is that the authors do not think that the language contained in recital 38 is legally sound:

In conclusion, Recital 38 of the proposal misunderstands EU copyright and related rights law by assuming that these providers go beyond the mere provision of physical facilities and perform an act of communication to the public.

The alternative? An approach that respects user’s rights

All of this constitutes a pretty strong case for deleting article 13 and recital 38. However this does not mean that the authors see no need to intervene in the area of how online platforms that allow users to upload content should be regulated. They write:

A rejection of the proposed Article 13 of the proposed Directive […] thus does not mean that it is not the right moment to free current law of uncertainties and to improve it in light of the developments that have occurred in the meantime. It also does not mean that new – and in particular technology-based – obligations cannot be imposed on service providers, which act beyond the liability exemption. Such legislative measures should simply be better coordinated; an isolated approach, as attempted with Article 13 of the proposed Directive, is not promising”. (page 3)

In line with this, they suggest an alternative approach that would address the questions raised by online platforms in a much more comprehensive way. These elements include suggestions that we had previously made in our policy paper that would strengthen the legal position of users such as the “introduction of a ‘counter notice procedure'” and “the implementation of a mandatory exception for private, non-commercial exploitation of works in social networks not affecting the rightholder’s normal exploitation of works”.

While drawing up an alternative approach to the liability issues related to online platforms will require more time, it is important to realize that such alternative does exist (especially since the EPs Rapporteur apparently thinks that “Article 13 is needed since no alternative for it exists”). If the answers provided by the Max Planck Institute show one thing, is that such alternatives need to be sought outside of primary copyright and must take into account the interests of the users they will affect.

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