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.
Based on their analysis the academics join the growing chorus of voices arguing for deletion of article 13 and the associated recitals and pleading for the EU wide harmonisation of the liability rules for hosting providers includingrules for “notice and takedown” procedures:
These findings shed light on the need to clarify service provider immunity instead of further complicating the legal assessment criteria. A further clarification of applicable rules should extend the principle that is already reflected in the EU acquis, namely that providers are not liable for users’ actions which they cannot reasonably be expected to know and control. A further clarification of this rule is advisable to pave the way for a uniform application of service provider immunity throughout the internal market. In the interest of legal certainty and a higher level of harmonization, a well-structured European legislative design of the “notice and takedown” procedure should be introduced, accompanied by an appropriate “counter notice” procedure.
In addition to such harmonisations the academics also join us in arguing for the introduction of a user generated content exception into the EU copyright framework. An updated framework for user generated content platforms cannot consist of enforcement provisions alone but must also adapt the rights that users have when it comes to reusing copyright protected content:
In addition, it would be consistent with the existing acquis to introduce a new use privilege in favour of the creation of content remixes and mash-ups by users and the further dissemination of these remixes and mash-ups on online platforms. As a countermove, online platforms with user-uploaded content could be responsible for the payment of fair compensation. They could either pass on these additional costs to their users, or use a part of their advertising income to finance the payment of fair compensation. To generate an additional revenue stream for authors and performers, this alternative solution is clearly preferable. It does not encroach upon fundamental rights and freedoms, and leaves intact the safe harbour for hosting in Article 14 of the E-Commerce Directive.
There is growing academic consensus that article 13 is a flawed legal instrument that would do more harm than good and should be deleted. This would open the the space for a legislative intervention to clarify and harmonize the EU rules for user generated content platforms without undermining the legal underpinnings of the digital economy in the EU such as the e-Commerce directive.