Article 13 of the proposed EU copyright reform/expansion
Internet platforms hosting “large amounts” of user-uploaded content must monitor user behavior to identify and prevent copyright infringement.
Fotocommunity.de hosts the portfolios of thousands of photographers. Once any rightholder of a photograph asks the company to keep a look out for one of their works, they must start monitoring and scanning all future uploads to make sure that photo is never uploaded to their service.
The Commission wants to strengthen the music industry in negotiations with YouTube. The industry believes that the revenue Google shares with them from running ads on videos containing their content amounts to too little compared to payments from subscription services like Spotify, calling this the “Value Gap”.
- Freedom of expression limited: Upload monitoring software cannot tell infringement apart from legal uses, like parody, specifically enabled by exceptions and limitations to copyright. As a result, legal content will be taken down.
- Surveillance risk: The proposal requires the installation of what amounts to surveillance technology. Due to high development costs, content monitoring technology will likely end up being outsourced to a few large US-based providers, giving them direct access to the behavior of all EU users of internet platforms.
- Startup killer: This requirement places a huge burden on internet companies and discourages investment in user-generated content startups, preventing EU competition to the targeted dominant US platforms from arising, effectively locking in YouTube’s dominance.
- Community projects threatened: Even Wikipedia would likely need to implement such filters: Even though they only accept freely-licensed uploads, they still host “large amounts” of works.
Among independent academics, “there is independent scientific consensus that Article 13 cannot be allowed to stand”, the leading European centres researching IP and innovation law find. According to expert analysis, the Commission proposal is…
- Incompatible with existing EU law: The E-Commerce Directive forbids general monitoring obligations, which even the European Parliament Research Service says Article 13 would establish. Other premises of Article 13 are also unsupported by existing law and jurisprudence, including the assertion that platforms “optimizing the presentation” of uploaded content become liable for infringements. [Sources: Study 1, Open letter, Study 2, Study 3, EPRS]
- Incompatible with the Charter of Fundamental Rights as interpreted by the ECJ: It violates the principle of a fair balance between competing fundamental rights laid out by the European Court of Justice in case law. [Source]
- Ambiguously worded and inconsistent: Even the official German translation contains differences that significantly alter the meaning of some provisions.
Digital rights NGOs launched a campaign against this provision on March 7, calling to “#SaveTheMeme” (referring to parodies and other expressions of web culture that may be removed by such filtering technology).
Advocate reactions: “Privatised censorship” (EDRi), “very negative impacts on the internet” (OpenRights Group), “violates fundamental rights” (Communia), “neither balanced nor sensible” (EFF), “excessive measure” (Austrian coalition of NGOs and stakeholders)
- The (leading) Legal Affairs Committee proposes major changes: The draft report by rapporteur MEP Comodini (EPP) proposes to remove the obligation for automated monitoring, leaving platforms to ensure the functioning of agreements with rightholders without prescribing how. The report emphasizes that copyright exceptions must be respected. To remove sources of legal uncertainty, it aims to remove the limitation to services that host “large amounts” of content and clarifies that the proposal compliments the E-Commerce Directive, rather than contradicting it.
- The ALDE group shadow rapporteur is in favour of the Commission proposal, while S&D and Greens/EFA shadow rapporteurs have argued for its removal.
- The Internal Market Committee (MEP Stihler’s draft report) also seeks to bring the proposal in line with existing law and fundamental rights.
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