As the members of the European Parliament make their way to Strasbourg for the final plenary before the summer break, here is a reminder of what is at stake when they will vote on the JURI report on the proposed copyright directive this Thursday. Formally they will be voting to approve (or reject) the negotiation mandate the JURI members had given themselves on the 20th of June which, allows MEP Voss to start negotiating the final text of the directive with the Member States and the European Commission. As we wrote earlier the negotiation mandate is highly problematic as it embraces both the publishers right (“link tax”) and a requirement for open platforms to filter all user uploads (“censorship filters”). Both of these articles, which are pushed for by large rightsholders to give them more control over the content that they distribute, undermine important principles of the Internet and will cause significant damage to the much wider online environment.
In other words, the question that MEPs will have to decide this week, is if we accept the fact that fundamental principles of the Internet get thrown overboard at the request of particular industries who stand to benefit from such a move, even if it is clear that everybody else will be worse off as a result. Over the past weeks it has become clear that people are not happy with this prospect. MEPs have been overwhelmed with angry mails from Internet users, online creators have warned about the end of certain forms of creativity, people have taken to the streets in more than 30 places across Europe and more than 145 civil society organisations once again confirmed their opposition to the proposed measures.
In the light of these massive protests, the music industry which is the driving force behind the Article 13 upload filters is in damage control mode trying to downplay the effects of the measures it is calling for. Their fairly ridiculous attempt to position article 13 as “pro memes and mashups” was quickly debunked on social media and by European copyright scholars. The fact that scholarly opinion on the proposed changes, which largely overlaps with the perception by users, has been completely ignored by the members of the JURI committee is one of the driving forces behind the attempt to stop the JURI negotiation mandate this week.
So who is in favour of the measures approved by JURI and who is against them? Who should European lawmakers listen to when it comes to deciding on changes to the copyright regime that will have far-reaching effects for users, creators and businesses alike?
In favor of the JURI mandate: The position adopted by the Legal Affairs committee is supported by pretty much any organisation representing rightsholders and professional creators that is active in Brussels.
Against the JURI mandate: On the other side of the Debate we find the Civil Liberties and Consumer Protection committee of the European Parliament (both of which had adopted a more reasonable version of Article 13), more than 50 civil liberties organisations, organisations representing technology startups and software developers who all stand to lose from the proposed measures. Equally important are the warning voices coming from academics at Europe’s leading IP research centers, a group of the original architects of the Internet, the United Nation’s special rapporteur on the freedom of expression. Other critical voices come from creators, the Wikipedia community and hundreds of thousands of Internet users who have been contacting their MEPs via saveyourinternet.eu (and other platforms).
Most of these voices have been ignored by the debate in the JURI committee which has shown a particular disregard for independent expertise throughout the process. It is now up to all members of the European Parliament to decide if the Parliament should enter into negotiations with the Member States and the Commission based on the narrow view taken by the members of the JURI committee or on a view that takes these voices into account.
Last week we pointed out that when it comes to Article 13 both the version discussed (and since adopted) by the Member States in the Council and the compromise proposals discussed in the European Parliament’s JURI Committee are pretty terrible. In light of the negotiation mandate adopted by the Member States last week the only real option preventing mandatory censorship filters from becoming a reality for internet users in the EU is the European Parliament’s adoption of a position that renounces such filters, or (at the very least) ensures that any efforts to filter respect the fundamental rights of EU internet users.
Unfortunately, the direction of the discussions in the JURI Committee clearly point toward an EP position that would support mandatory upload filters. In this situation, it is important to remember that for almost a year, the European Parliament has been sitting on an opinion from the Internal Market and Consumer Protection (IMCO) Committee that would limit the negative effects of Article 13. Since then, the text of the IMCO opinion, adopted on the 8th of June 2017 (!), has also been adopted by the Civil Liberties (LIBE) Committee.
Persuant to the European Parliament’s procedural rules, both LIBE and IMCO are associated committees. This means that their versions should form the basis of the discussions in the Legal Affairs Committee. Yet the difference between the current compromise proposed by MEP Voss and the IMCO/LIBE text could not be greater. This becomes evident when comparing the internal logic of the JURI/LIBE version (flowchart below) with a flowchart depicting the internal logic of the JURI version (see here):
Yesterday, the members of the European Parliament’s Civil Liberties Committee (LIBE) did the right thing and voted down the Commission’s proposal to impose upload filters on online platforms. The LIBE opinion, which was drafted by Polish EPP MEP Michał Boni and adopted with a clear majority of 36 votes for and just 5 against, dismantles the most problematic aspects of Article 13 of the Commission’s proposal: the members of the LIBE committee voted to remove the obligation for online platforms to use automated content recognition technologies to filter all user uploads in order to prevent users of these platforms from sharing copyrighted materials without permission from rights holders. The opinion also proposes strengthening user’s ability to contest the takedown of works they’ve uploaded.
Members of Parliament are recognizing the dangers upload filters pose to freedom of expresion..
While this approach is not perfect (as we have repeatedly said Article 13 should be deleted from the proposed directive), it shows that the members of the European Parliament are not willing to blindly follow the attempts by the music industry and the Commission to give big rightsholders more control over how we create, share and access content online. It is encouraging to see that the members of Parliament have listened to the arguments against automated upload filters, such as the recent warning by more than 50 prominent professors and scholars of copyright and internet law that automated filtering systems “would deprive users of the room for freedom of expression” and the open letter that we co-signed with 50 human rights and civil liberties organisations, which pointed out that content filters would both “limit the freedom to impart information […], and the freedom to receive information on the other.”
LIBE is now the second committee of the European Parliament that is calling for a halt to the automated content filtering plans proposed by the Commission. Back in July the Internal Market and Consumer Protection Committee (IMCO) adopted the same amendments that were adopted yesterday by LIBE. While both committees will be at the table when the leading JURI committee discusses these plans, it is far from certain that the Committee on Legal Affairs will follow the line established by them.
…while Member States continue to push for mandatory censorship filters
Outside of the European Parliament the LIBE vote also sends a strong signal to the Member States who are discussing this issue in parallel. The Estonian presidency has proposed a new compromise text on article 13 that will be discussed among the member states later this week. The language proposed by the Estonian proposal significantly overhauls the Commission’s proposal, but that new coat of paint cannot hide the fact that it still tries to force online platforms to implement automated content filtering technologies. Continue reading
After a few postponements, the vote at the LIBE Committee on their opinion on content filtering article is finally happening today. Given the variety of amendments tabled by its members, it is understandable that the MEPs took their time in negotiating common ground. Unfortunately the deletion of article 13 was not an option for the Civil Liberties Committee. So what would be the next best outcome of the vote?
The peculiar fate of LIBE’s draft opinion
LIBE was the last Committee to be granted a right to release an opinion on the current copyright dossier. Following the Committee mandate, it will only opine on article 13 and corresponding recitals as the ones having implications on fundamental rights and privacy of users. In his decent draft opinion, rapporteur Michal Boni stepped away from the content filtering obligations and tried to clean up the mess the European Commission had left MEPs to deal with regarding intermediary liability.
That probably didn’t help him make more friends within the European People’s Party, his own group that in part supports the filtering obligation. However, in a surprising twist of events, Boni’s draft was adopted as part of the final opinion of the Internal Market and Consumer Protection Committee, instead of the compromise language proposed by rapporteur Catherine Stihler and some truly horrific alternative ideas on how to make filtering great again authored by some Committee members.
A compromise by popular demand
This move gave some prominence to the draft, probably a bit more than it needed from the perspective of the LIBE Committee workflow. We can only suspect that the backers of content filtering as the go-to solution to enforcing copyright did not like the fact that a proposal deprived of it gained traction in the Committee where the rapporteur has a seat during JURI Shadows’ meetings. It is quite possible that the rescheduling of the vote had to do with the fact that the draft opinion has as many fans as it has enemies. Continue reading
Despite ambitious planning, the JURI Committee vote on the Copyright in the Digital Market directive seems increasingly unlikely to happen in 2017. Meanwhile, following the lead of the EPP, ALDE (The Alliance of Liberals and Democrats for Europe) published a new position paper on Copyright in the Digital Single Market earlier this month. ALDE seems to be deeply split when it comes to the question of copyright policy. Perhaps this is why the paper offers a very blurred perspective on how the group’s MEPs will vote in the upcoming votes in the Civil Liberties (LIBE) and Legal Affairs (JURI) committees in the European Parliament.
A blurred compromise to keep everyone happy
While many liberal MEPs are traditionally supportive of less restrictive copyright rules and value the protection of individual freedoms, ALDE’s official spokesperson for the copyright file, MEP Cavada is one of the most outspoken proponents of stronger copyright protection in the European Parliament.
Positions of the political groups in JURI with respect to selected elements of the DSM directive proposal [Source].
The new position paper seems to be an attempt to bridge both positions. Following a somewhat rambling introduction that extensively highlights the need to fight online piracy (which technically is not included in the scope of the DSM directive), the position paper states that attempts to protect copyright online should not infringe users’, consumers’ and citizens’ rights:
ALDE wants to protect copyright online because we need to ensure that creators are fairly remunerated for their creations. In taking measures to ensure this, however, ALDE is not ready to go as far as to infringe users’, consumers’ and citizens’ rights to exercise their freedom of expression online. Just as in working against any unlawful behaviour, online or offline, ALDE will do as much as possible, while maintaining a fair balance of fundamental rights, such as the right of information and the right of free expression.
Unfortunately the position paper leaves it unclear what this would mean for ALDEs position towards article 13 of the Commission’s proposal (which require upload filters for online platforms). Continue reading
Anyone following copyright debate may have an impression it is all about “money, money, money” (Abba). In COMMUNIA we believe that such an approach shows deep misunderstanding about the function of copyright. Copyright is just one angle of approaching more broader challenge, namely providing a just framework for to access to knowledge, information and culture. A well balanced copyright system is one of the fundamental underpinnings of a knowledge-based society.
Possibly the strongest challenge to such as system is are the proposals for forcing online platforms to filter all content uploaded by their users, put down in article 13 of the proposed Directive on copyright in the Digital Single Market. We have underlined many times before that proposed regulation will have a chilling effect on sharing content, access to information and the the ability to operate open platforms online.
Today, over 50 NGOs (including COMMUNIA) representing human rights and media freedom have send today an open letter to the European Commission President, the European Parliament and the Council asking them to delete the content filter mechanism. This letter comes ahead of a crucial vote in the European Parliament’s Civil Liberties committee, in which the MEPs tasked with upholding our fundamental freedoms will give their opinion on the upload filters that the Commission wants to introduce through article 13. The signatories of the letter, which include many prominent human rights organisations like the Freedom of the Press Foundation, Human Rights Watch and Reporters without Borders, believe that the mechanism introduced through article 13:
- would violate the freedom of expression set out in the Charter of Fundamental Rights;
- provokes such legal uncertainty that online services will have no other option than to monitor, filter and block EU citizens’ communications.; and,
- includes obligations on internet companies that would be impossible to respect without the imposition of excessive restrictions on citizens’ fundamental rights.
If the European Union decides to approve the European Commission’s proposal, this would constitute an unprecedented step towards building an online censorship infrastructure. Similar filtering obligation have previously been rejected in the context of preventing terrorism and hate speech. Continue reading
We were hoping that the Committee on Civil Liberties, Justice and Home Affairs (LIBE) rapporteur Michal Boni would make use of the Committee mandate to suggest deletion of entire article 13 from the proposed Directive on Copyright in Digital Single Market. That didn’t happen. The justification of the report reflects a hope that the idea to regulate agreements between platforms and rightholders can be sustained while respecting fundamental rights of users. But do the LIBE amendments meet that goal?
Looking beyond technology
The very good news is that Rapporteur Boni proposes to remove content recognition and all references to the use of technology as a default option from the directive. MEP Boni also explicitly says in his report that the implementation of the agreements should not impose any general monitoring obligations.
Here the report builds nicely on theapproach paved by the JURI’s rapporteur MEP Comodini in her report. The removal of references to technology opens the path to looking for a variety of solutions in negotiating the division of revenues between service providers and rightholders. No doubt that technologies will be employed to verify if content is uploaded legally. But the EU copyright legislation should not require a direct connection between the business discussion on who the revenue should go to and the surveillance of users uploading stuff on a platform. Continue reading