Germany to Commission: Article 13 endangers the competitiveness of European enterprises

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Germany says upload filters may be illegal
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Two weeks ago we highlighted the fact that six EU member states had asked questions to the Council legal service about the legality of Article 13 of the proposed Digital Single Market directive. Yesterday it emerged that the government of Germany also has serious concerns about Article 13 and asked its own set of questions to the Council legal service. As our friends at copybuzz.com point out, this move by Germany adds a lot of weight to the questions raised by Belgium, the Czech Republic, Finland, Hungary, Ireland and the Netherlands before the summer. While the questions asked by the German document more or less mirror the concerns of the other six member states, there are also some important differences.

A lot of the concerns raised by the six member states centered on the relationship between the Commission’s proposed Article 13, user rights granted under exceptions and limitations, and the rights enshrined in the EU fundamental rights charter. In contrast the intervention by the German government seems to be motivated by a different set of concerns. In the introductory paragraph of the document they write (emphasis ours):

We welcome the fact that the Commission has addressed the matter of how to fairly distribute the value created by internet platforms. We must ensure that creative individuals receive fair pay, also if their work is available on the internet. Concurrently, platforms must not be jeopardised in their function as a societal medium of communication. Moreover, it must be ensured that the competitiveness of European enterprises and the freedom of scientific communication are not impaired.

Based on this is seems clear that the German government is primarily worried about the potential negative impacts that Article 13 would have outside the narrow confines of the music industry. The German government is concerned that the Commission, driven by the the music industry’s desire to cripple the liability exceptions of the E-Commerce directive, will undermine the economic basis for much of Europe’s digital economy.

A threat to the digital economy and academic research

Similar to the six member states before it, the German government is not at all convinced that the Commission’s proposal will leave the legal principles established by the E-Commerce directive intact. From the German point of view this is especially worrisome as the liability exceptions apply to many platforms other than the video sharing and social media services targeted by the music industry. And while the music industry is without a doubt an important contributor to the EU economy, so are other sectors that rely on online platforms and the protections granted by the E-Commerce directive (see for example this excellent report by the Open Forum Europe and the Free Software Foundation Europe that highlights how Article 13 would create substantial burdens for collaborative software development in the EU). Continue reading

Member States to Commission: We don’t trust your claims that censorship filters are in line with EU law

A woman shouting into a man's ear-trumpet. Wood engraving.
Are upload filters even legal?
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Hot on the heels of last week’s leak of a (rather depressing) Estonian council compromise proposal that contained two bad proposals for the upload filter comes another leak of a council document. Apparently not all EU Member States are convinced that the Commission’s plans to require online platforms to filter all user uploads is such a good idea! Statewatch has just published a document containing written questions from the governments of Belgium, the Czech Republic, Finland, Hungary, Ireland and the Netherlands to the council legal service regarding article 13 and recital 38.

These questions clearly show that these Member States have serious doubts about the Commission’s repeated assurances that the proposed censorship filters would not affect users’ fundamental rights, do not change the liability exemption of the e-commerce directive, do not constitute a general monitoring obligation and do not change the definition of what it means to make copyrighted works available online.

All of these questions may sound like technical details but they are not. Instead they are at the heart of the discussion about article 13 of the commission’s proposal. Since the commission presented the proposal, a broad coalition of civil society, technology companies and academics has pointed out the problematic relationship between the commission’s proposal and fundamental rights and the principles established by the e-commerce directive.

Member States have serious doubts about legality of upload filters

The music industry organisations are the driving force behind the attempt to censor user uploads and regain control over the ability of millions of online creators to express themselves online. Together with the Commission they have flat out denied that the proposed in article 13 and recital 38 would change existing EU law. The fact that the six member states have formally asked the legal service of the Council (which is independent of the Commission) shows that they are not buying into this narrative. Continue reading

EU Council: divided on more rights for press publishers, but backs censorship filters

Karikatuur van Franse censoren
A step towards mandatory upload filters
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Summer is definitely over in Brussels and in member states – everyone seems to be back to work, which means in our case back to the copyright discussion. Yesterday Statewatch published a first compromise proposal by the Estonian Presidency. The document refers only to parts of the Commission’s draft directive, namely Articles 1, 2, and 10 to 16. From the very beginning we have been involved in the discussions on ancillary copyright for press publishers (Art. 11) and the upload filter (Art. 13). On both of these issues the Estonian proposal contains two different approaches, each a fact which further highlights how divisive these provisions are among the member states on article 11. One of the versions somewhat improves the Commission’s proposal while the other one makes it much worse. On article 13 both versions would make the Commission’s already terrible proposal even worse.

Ancillary copyright for press publishers – to be or not to be?

On the issue of new rights for press publishers the Estonian compromise proposal does not really present a compromise. The two versions mark different sides of the spectrum. On the one hand a version that would enact a massive expansion of the rights of publishers that goes well beyond the Commission’s proposal that dealt with rights in digital uses of press publication only. On the other hand, we have a version that does not create new rights while still giving publishers tools to act against infringement.

The first option (which can probably be attributed to France) expands the original bad European Commission’s proposal if it comes to the scope of the ancillary copyright from digital publications to publications published in any media, including on paper (in the proposal the article would also apply to videos and photos). What is even worse, hyperlinking is explicitly included in the scope, as long as such links constitute a communication to the public (in the absence of clear guidance this would open a whole new can of worms). This version would be a clear win for big publishers, and a major restraint for free flaw of information online. Continue reading