Article 13 of the proposed EU copyright reform/expansion

Also called: Article 13, Value Gap, Upload monitoring obligation, Upload filters, Upload surveillance, Robocopyright

Commission proposal

Internet platforms hosting “large amounts” of user-uploaded content must monitor user behavior to identify and prevent copyright infringement.

Example:
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.

Intent:
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”.

[Why is their content on YouTube? In most cases because they uploaded it for promotional reasons, and in some because fans uploaded videos containing (parts of) it, the infringement was detected, and the labels then decided to take Google’s offer to monetise the videos with ads, rather than removing them.]
Sites like photographer portfolio platform Fotocommunity would need to start monitoring all user behavior

Consequences

  1. Freedom of expression limited: Upload monitoring software cannot tell infringement apart from legal uses, like parody, specifically enabled by exceptions and limitations to copyright. When in doubt, platforms will block to avoid facing lawsuits. As a result, legal content will be taken down.
  2. 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.
  3. 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.
  4. 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.

Public debate

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 1Open letter, Study 2, Study 3EPRS]
  • 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: “An affront to the rule of law and freedom of expression” (Wide alliance of organisations working on human and consumer rights), “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), “will disable the use of copyright exceptions” (Polish NGO coalition

 

European Parliament

  • The (leading) Legal Affairs Committee proposed major changes, but their future is unclear: The draft report by rapporteur MEP Comodini (EPP) proposed removing the obligation for automated monitoring, leaving platforms to ensure the functioning of agreements with rightholders without prescribing how. The report emphasized that copyright exceptions must be respected. To remove sources of legal uncertainty, it aimed to remove the limitation to services that host “large amounts” of content and clarified that the proposal compliments the E-Commerce Directive, rather than contradicting it. Ms. Comodini has however since left the Parliament, and her successor Mr. Voss has distanced himself from her position.
  • 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. Detail on MEP reactions…
  • The Internal Market Committee wants to remove the obligation to use automated content recognition technologies.
  • The Industry Committee wants the words “content recognition technologies” removed also, but ineffectively, since it keeps the underlying obligation for platforms to prevent the availability of copyrighted content.
  • The Culture Committee wants to expand the proposal to forbid you from keeping private backups of your legally purchased files, by also forcing cloud storage providers like Dropbox to install censorship machines.

Take action


Are you against this idea?
Call your MEP today by using SaveTheMeme.net – it’s free and both easier and more impactful than you think.

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