A final x-ray of Article 13: legislative wishful thinking that will hurt user rights

Article 13 final flowchart
Impossible obligations create legal uncertainty
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Since last year we have tracked the development of Article 13 of the proposed Directive on Copyright in the Digital Single Market by publishing a series of flowcharts that illustrates its internal logic (or absence thereof). Now that there is a final compromise version of the directive we have taken another look at the inner workings of the article. The final version of Article 13 continues to be so problematic that as long as it remains part of the overall package, the directive as a whole will do more harm than good. This is recognised by an increasing number of MEPs who are pledging that they will vote against Article 13 at the final plenary vote.

The flowchart below illustrates the main operative elements of Article 13. These include the definition of the affected services, the types of services that are explicitly excluded from its scope (the green box in the top right corner) and the reversal of the liability rules for the services covered by Article 13. It further details the obligations imposed on the services. These include an obligation to seek licenses for all copyrighted works uploaded by users (the yellow box) and the requirements to ensure the unavailability of certain works that will force platforms to implement upload filters (the two red boxes). The yellow box at the bottom contains the measures that platforms must take to ensure that the upload filters don’t negatively affect users’ rights.

Article 13 final flowchart

The Scope: Broad yet vague

The problems with Article 13 start with the definition of the services it applies to. While Article 13 is intended to address concerns about value distribution raised by a limited set of industries (primarily the music industry) it applies to all types of copyright protected works. But there is no good reason why an article that is intended to bolster that bargaining power of the music industry should impose expensive obligations on platforms that have nothing to do with hosting musical works. In addition, the limitation to platforms that deal with “large amounts” of works is so vague that it does not provide any legal certainty for smaller platforms and will undoubtedly give raise to court challenges. On the positive side the definition clearly limits the scope to for-profit services. Continue reading

A “compromise” that fails to deliver – our overall assessment of the directive remains negative

Overall DSM directive assessment: bad for the peopleLicentie

On Wednesday the Council formally approved the trilogue compromise text of the DSM directive with only 5 Member States voting against the compromise. In a joint statement the Netherlands, Luxembourg, Finland, Italy and Poland sharply criticised the compromise:

We believe that the Directive in its current form is a step back for the Digital Single Market rather than a step forward.

Most notably we regret that the Directive does not strike the right balance between the protection of right holders and the interests of EU citizens and companies. It therefore risks to hinder innovation rather than promote it and to have a negative impact the competitiveness of the European Digital Single Market.

Furthermore, we feel that the Directive lacks legal clarity, will lead to legal uncertainty for many stakeholders concerned and may encroach upon EU citizens’ rights.

These criticisms are very much in line with our own assessment of the directive and it is unfortunate that the rest of the Member States have chosen to ignore them. After this week’s approval by the Member States it is now up to the European Parliament to prevent the directive (or its most harmful element, Article 13) from being passed into law. There is no date for the final plenary vote yet, but the final showdown is widely expected to take place anytime between mid-March and mid-April.

Internet is should be for the people

In the light of this we have now updated our overall analysis of the directive (which we had first published in January) to reflect the final compromise text. The final trilogue negotiations have resulted in changes to the text related to the Text and Data mining exception, the publishers right, the fair remuneration right and — most notably — Article 13. By and large the changes to the text have been minor and in line with our expectations, and as a result our overall assessment of the directive as a whole remains negative. The finals text will do a lot of harm to internet users and needs to be blocked from becoming law. Continue reading

After 30 months, EU legislators agree to sell out users and creators to big platforms and big content.

Caïn venant de tuer son frère Abel, by Henry Vidal
European users and creators deserve better
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After yesterday’s agreement between the European Parliament, the Council and the European Commission on a compromise text, the EU copyright reform process has entered into its final phase. The good news is that after yesterday’s compromise the text cannot get any worse: it will either be adopted or it will be rejected. The bad news is that the text that was agreed on yesterday is **the worst version that we have seen yet**. After three days of negotiations, the negotiators have agreed on a text that would benefit big corporate rightsholders, Google and other dominant platforms at the expense of users, creators and the rest of the European internet economy.

To understand what has happened during the negotiations, it is illustrative to look at the differences between the final compromise and the text that had been agreed among the EU member states last week (which was the result of horse trading between the French and German governments).

A win for dominant platforms…

Yesterday’s compromise text is largely in line with the French-German deal. This includes a terrible version of Article 13 that will severely limit users ability to express themselves online. It will also further consolidate the power of dominant platforms, as smaller platforms will struggle with implementing expensive filtering technology and supporting the increased costs for dealing with increased liability.

It also introduces a EU-wide neighbouring right for press publishers that will have very similar effects. It benefits dominant platforms who can afford compliance while creating additional costs and risks for smaller players. As a result, users will likely end up with less access to information and the diversity of information available online will likely suffer. Under these conditions it remains to be seen if rightsholders will indeed manage to extract more value from the large intermediaries.    

…at the expense of users and creators

As if this would not be bad enough, the negotiators have introduced last minute changes to the text that further weaken provisions that were intended to protect the rights of users and individual creators. The French/German deal did not (at least not clearly) include a UGC exception for users of every online platform, but it used language that at least applied to  user-generated content uploaded to the platforms covered by Article 13. The final compromise has adopted questionable language that may or may not  provide a meaningful protection for users of platforms covered by Article 13, depending on whether Member States are obliged to fully implement the existing quotation and parody exceptions provided in the InfoSoc Directive, and make them applicable to user-generated content, which is not evident from the text. Continue reading

Final countdown on Article 13: here is how bad it really is

Article 13 flowchart (detail)
Article 13: death by filters
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Today will see the third of the “final” trilogue meetings this week. Soon we will either have a final text of the copyright directive (and we are assuming it will be either bad or very bad), or it’ll be dead in the water. At this moment the fate of the directive largely hinges on the ability of the negotiations to find a compromise on Article 13. The negotiations this week rely on the mandate obtained by the Romanian presidency last Friday. This text, based on a compromise hashed out between France and Germany, has been widely characterized as the worst version of Article 13 yet.

While negotiators have been working on finding a final compromise this week, we have analysed the current text proposed by the presidency and created a flowchart of what’s in play. In its current version Article 13 now has nine operative provisions — now exceeding the number of articles the 2001 InfoSoc directive required to describe both the rights granted under copyright and the exceptions and limitations to those rights!

Article 13 flowchart (full) Continue reading

Time to stop hijacking copyright to bolster the economic interests of specific sectors

A dragon devouring the companions of Cadmus
Support for Article 13 is disintegrating
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Ahead of today’s discussion of a new copyright mandate in the Council, which would pave the way for a final trilogue at the beginning next week, the situation is becoming increasingly messy. Over the last 24 hours various groups of rightsholders ( Europe’s biggest entertainment company , a number of smaller associations from the Audiovisual sector and an unprecedented coalition of big AV holders and half of the music industry ) have come out against the proposed directive as a whole and Article 13 in particular. With the defection of major music industry organisations from the pro-article 13 movement, the once-united front of rightsholders in favour of Article 13 seems to have completely disintegrated.  This makes it clear that the EU copyright reform process has been hijacked by the legacy entertainment industry in an ill-conceived attempt to re-establish their control over the distribution of cultural goods. Under these conditions it starts looking increasingly unlikely that the copyright directive will be adopted before the EU elections later this year.

In part these last minute statements are tactical interventions intended to maximise pressure on the negotiators to adopt rightsholders friendly positions, but they also point to a much more fundamental problem: Copyright is simply not suitable as a tool to support the specific business models of one part of the creative sector without causing massive problems in other sectors. In an environment where pretty much every online transaction somehow triggers copyright, messing with the contours of copyright (especially when it comes to liability for infringement) will have lots of unintended consequences that manifest themselves as collateral damage in other sectors of the digital economy. Continue reading

Ahead of last trilogue: on balance the directive is bad for users and creators in Europe

Internet is for the peopleLicentie

Today we are launching a new minisite called “Internet is for the people” that provides an overall assessment of the Directive on Copyright in the Digital Single Market. Our assessment takes into consideration all the key parts of the Directive.

Our aim, with this project, is to present how the Directive  will either empower or hurt users and creators in the digital age. The rules that regulate creativity and sharing must be fair and take into account contemporary online activities and digital practices. Essentially, the internet needs to be for the people, and key legislation needs to be based on this principle.

In order to do this, we analysed nine different issues that are included (or have not been included) in the proposal for the Directive: Upload Filters, the Press Publishers Right, Text and Data mining, access to Cultural Heritage, Education, the protection of the Public Domain, a Right to Remix, Freedom of Panorama and Fair Remuneration for Authors and Performers. Each issue was then scored, allowing us to provide an overall score of the Directive based on an understanding of all elements of the proposal.

Too often, the Directive is reduced just to a few controversial issues: content filtering or a new right for publishers. These are clearly crucial issues, but it is important to understand that the Directive includes other rules that can also have massive effects on Europe’s research and science, education, cultural, or AI industry–just to name a few.

We decided to analyse the Directive through a particular lens: of the potential to either empower or hurt users and creators in the digital age. We are critical of views that the Directive simply attempts to regulate business relationships between two sectors, and that therefore the policy debate should be left to them. The Directive will have tremendous impact on all European citizens, who depend in all aspects of their lives on communication systems and digital tools that copyright law regulates.

The internet needs to be for the people. This means that core policies, like copyright law, need to be “for the people” by design. As our analysis shows, the final proposal for the Directive will likely be a legislative mixed bag. A range of positive developments concerning exceptions and limitations – rules that grant people the freedoms to use content for personal needs or public interest goals – are offered alongside other regulatory proposals that will have extremely adverse effects across all spheres of European society.

On Monday policy makers will have one more chance to fix some of the shortcomings of the proposed directive. Based on the current state of affairs it seems extremely unlikely that this will fundamentally alter the our negative overall assessment of the directive: Seen as a whole, the proposed Directive is bad, and will not make the internet work for European citizens.

Article 13: Four principles for minimising harm to users, creators and the internet

Vrouw die een stier tracht te bedwingen
4 principles to save article 13 from killing the net
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Later today the negotiators of the Commission, the European Parliament and the Council will meet for the 4th trilogue meeting. After having dealt with less controversial parts of the proposal during the three preceding meetings, tonight, will finally see a discussion about Article 13 of the proposed DSM directive.

Given that all three legislators bring similar versions of article 13 to the table, we can expect that a final compromise text will include some version of the article 13 upload filters. There is still a good chance that the negotiations will be inconclusive or that the eventual outcome of the trilogue negotiations will not be approved by either the Member States or the Parliament (which would mean that the directive will fail and there will be no upload filtering requirement for the foreseeable future). But in the context of the ongoing trilogue, the deletion of article 13 (which has been our position so far) is not an option anymore.

This raises the question of how the damage that article 13 will do to the internet ecosystem and freedom of expression can best be contained. Before we do so let’s take a quick look at the positions that are on the table:

EP position: general blocking of all unlicensed content

The provision adopted by the European parliament can only be described as a total disaster. As the result of a misguided attempt to remove the mention of “measures” from the text of the article the European Parliament adopted a version of article 13 that makes platforms liable for copyright infringements for every single work uploaded by their users. This would include any photo, drawing or text uploaded by a user, regardless if these are old works, works that have been created for the express purpose of being shared widely, or the latest blockbuster movie. As a result of making platforms liable for all works uploaded by their users, they are practically forced to install filters that will block everything that has not been licensed to them. In other words, the EP version of article 13 would turn open platforms into platforms that distribute content licensed by the entertainment industry and nothing else. Continue reading

A (real) proposal to better remunerate creators is on the table and the Council wants to kill it

Vóór Restaurant Royal - den Haag
Fair renumeration not upload filters!
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One of the certainties in copyright policy discussions is that most arguments are made purportedly on behalf of individual creators. Case in point is the EU copyright reform, where the music industry is claiming that Article 13 will benefit creators, where publishers are claiming that they need a publishers right so that journalists get properly rewarded, and where YouTube is claiming that Article 13 will hurt creators. In most of these cases creators are merely used as pawns in the game, in which large intermediaries on both sides of the debate try to ensure that they can gain or maintain as much control as possible over the distribution chain for themselves.

With all this attention for the wellbeing of individual creators it is surprising how little attention has been paid to another provision of the proposed copyright directive. Even worse, a proposal by the European Parliament to include a measure that would directly benefit authors and performers (at the expense of rightsholders pretending to act on their behalf) is currently is facing opposition from Member States.

Under the title “Measures to achieve a well-functioning marketplace for copyright” the Commission had proposed a number of measures aimed at strengthening the position of creators in contractual relationships with intermediaries. Specifically Article 14 introduces a transparency obligation for intermediaries towards rightsholders and Article 15 contains a contract adjustment mechanism intended to give creators some recourse if their works ends up being much more successful than originally envisioned and after which they have already signed their rights away.

From the get go these measures had been criticised by organisations representing performers as not strong enough to really improve the negotiation position of creators. These  have been advocating for an unwaivable right to receive equitable remuneration (something that we considered to be problematic because it would limit the ability of creators to use open licenses).

These calls for such an unwaivable right were ignored, but in september the European Parliament included the addition of a right to fair and proportionate remuneration. It is one of the few positive elements in an otherwise disastrous position. Where an unwaivable right would have made it impossible for creators to freely share their output (if they wanted to do so), the language proposed by the European Parliament should help to get more money into the hands of those creators that actually want it. Continue reading

Reminder: Article 13 will help dominant platforms, not hurt them

A dragon devouring the companions of Cadmus
Regulatory burden will hurt smaller platforms
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Two weeks ahead of the second trilogue meeting on the 26th of November where the most controversial parts of the Copyright Directive will be discussed for the first time, various stakeholders are starting to position themselves for the final stages of the reform process. Yesterday Politico.eu leaked the compromise suggestions prepared by the Austrian Presidency for articles 11 and 13. Unsurprisingly the suggested texts maintain the general approach that was cemented by both the Council and the Parliament over the summer (see analysis by MEP Julia Reda here). By now it is clear that regardless of how much we argue that Article 13 should be deleted and that Article 11 should be limited to a presumption of representations neither of these two things will happen.

Limiting the damage by clearly identifying the services targeted

Under these conditions it seems that the most promising approach to minimize the harm that will be caused by these articles will be to limit what type of services they apply to.

Article 11 should be modified in such a way that it only applies to search engines and news aggregators. These are the type of services that press publishers are claiming to cause them harm (which we continue to doubt). This would prevent a lot of legal uncertainty (and thus damage) for everyone else on the internet.

The same approach makes sense for article 13. The music industry and other rightsholders have consistently argued that they are harmed by large online platforms that allow users to share audiovisual (AV) works. Given that the stated objective of the proponents of article 13 is to create a better bargaining position for rightsholders vis a vis YouTube, Facebook, Google and other commercial platforms, it seems reasonable to limit the types of services that would need to comply with article 13 to for-profit audio visual platforms that compete with licensed services only. Such a measure would prevent a lot of legal uncertainty for platforms that do not deal with AV works or do not operate on a for profit basis. Continue reading

EU copyright reform grinds into trilogue negotiations

Oordeel van Salomo
Secret judgment of EU copyright reform
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Last month the notorious EU Parliament vote approved almost all of the worst measures of the proposed Directive on Copyright in the Digital Single Market. It was a significant setback for user rights and the open internet.

Recap: 12th September Parliament vote

The Parliament voted in favor of Article 13, which even though it didn’t mention explicitly, would in practice force online platforms that host significant amounts of user-uploaded works to filter all content for copyrighted materials and prevent the upload of those works unless a license has been agreed to. If the platforms don’t do this, they would be liable for copyright infringements of their users.

They approved Article 11, which gifts a new copyright-like right to press publishers that will allow them to control how we access and reference press publications and news stories online.

The text and data mining provisions of Article 3 pretty much stayed the same, with a mandatory exception carrying through, but only one which can be taken advantage of by not-for-profit research organisations, and only for the more limited scope of scientific research. An optional addendum would permit an expanded exception applicable to all, but only if the rights holders in the underlying works don’t object to it, or arrange their own licensing requirements.

Article 4, the copyright exception for education applying to digital and cross-border teaching activities, while being seriously improved over the Commission version, still contains the fatal flaw that the mandatory exception can be essentially ignored if there is appropriately licensed content made available in a Member State.

To add insult to injury, the Parliament doubled down on their rights giveaway bonanza, approving Article 12a to grant sports events organizers to prohibit anyone from sharing photos or other recordings of sports events. And the new Article 13b requires that image search engines to obtain licenses for even the smallest preview images that they display as search results.

Continue reading