France, Spain and Portugal: We must adapt the internet to the reality of copyright (not the other way around)

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Lately we have written so much about ourselves, human rights organisations, academics (1|2) and member states (1|2) criticising the upload filters proposed in article 13 of the proposed DSM directive that one could almost forget that there are indeed powerful forces who are pushing for these filters to become a reality.

A new set of documents leaked by Statewatch presents an (un)welcome reminder of of the fact that the idea of upload filters has powerful supporters outside of the music industry and that they wield considerable influence on the discussions in the council. The set of documents consists of a document containing “amendments to recitals 37, 38, 39 and Article 13” proposed by the French, Spanish and Portuguese delegations (dating from 2 october) and a document by the Estonian Council Presidency containing the questions raised to the Member States during 17-18 October meeting of the Council Working Party on Intellectual Property, which echoes the tone set by the amendments proposed by the three member states.

The amendments proposed by France, Spain and Portugal offer the clearest view yet on what the proponents of article 13 want to achieve. In their eyes article 13 is not about vague and ill defined “measures to ensure the functioning of agreements concluded” between rightsholders and online platforms but about creating a complete change of the legal status of open online platforms. The amendments proposed make an attempt to (a) re-define the activities of online platforms as communication to the public undertaken by those platforms and to (b) remove online platforms that allow uploads by their users from the protections afforded to them by the e-commerce directive.

Legal uncertainty exists as regards the conditions under which the provision of access by information society service providers allowing users to upload content can be considered as an act of communication to the public. This affects rightholders’ possibilities to determine whether, and under which conditions, their works and other subject-matter are used as well as their possibilities to get an appropriate remuneration for it. The present directive clarifies the conditions under which such information society service providers can be considered to perform an act of communication to the public and therefore do not fall in the scope of Article 14 of the Directive 2000/31/EC. (recital 37, additions by FR/ES/PT in bold)

While the proposed Copyright in the Digital Single Market directive is seen by most stakeholders as an attempt to adapt the copyright rules to the evolving realities of the digital economy, the French (and their Portuguese and Spanish supporters) are clearly of the opinion that it should be the other way around: according to them the realities of the digital world must be adapted to the principles of copyright orthodoxy (i.e to a legal constructs established in the late 19th century). To make things even worse the underlying justification for this move (the so called value gap) is missing any empirical basis: recent analysis shows that the music industry is actually doing quite well in the digital environment.

In practical terms the changes proposed in the Amendments would significantly change the way online platforms (and as a result pretty much any form of online collaboration) operate. The French proposal privileges the interests of a small class of commercial copyright holders above anybody else: Under the rules proposed, operating open platforms would only be possible with permission from rights holders.

In addition the French proposal reinforces the Commission’s plan to force online platforms to install upload filters that would prevent any uses of copyright protected not explicitly approved by rightsholders:

Member States shall ensure that all information society service providers that store and give access to significant amounts of copyright protected works or other subject-matter uploaded by their users, upon request from rightholders […] take measures to prevent the availability on their services of works or other subject- matter identified by rightholders. (article 13 para 2 as amended by FR/ES/PT)

The insistence of ex-ante filtering of all user uploads stands in clear contrast to the opinion of the council’s own legal service who in response to questions by another set of member states made it clear that it does not believe that ex-ante filtering mechanisms would be in line with the general rules established by the e-commerce directive. Given that the France, Spain and portugal seem to see article 13 as a means to essentially overturn the ecommerce directive for all uses of copyrighted content this is of course not really surprising.

The position advocated by the governments of France, Spain and Portugal re-affirm that there is a lot more at stake with article 13 than a few “measures to ensure the functioning of agreements”. From the start, article 13 has been an attempt by music industry and their allies to overturn the legal basis of an open internet that allows anyone to express themselves without the need for traditional intermediaries. Article 13 is an attempt to get the genie back into the bottle and to re-establish the control that the traditional intermediaries had over how we can access and interact with culture. In the light of the position taken by France, Spain and Portugal this remains a real danger and we must do everything we can to prevent that from happening

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