Eu Monitoring and Filtering of Internet Uploads

After months of report, European regulators have finally released the total and final proposal on Copyright in the Digital Unmarried Marketplace, and unfortunately it's full of ideas that will injure users and the platforms on which they rely, in Europe and around the earth.  We've already written a fair scrap about leaked version of this proposal, simply it's worth taking a deeper swoop into a particular provision, euphemistically described as sharing of value. This provision, Commodity xiii of the Directive, requires platform for user-generated content to divert some of their revenue to copyright holders who, the Commission claims, otherwise face a hard time in monetizing their content online. We strongly support counterbalanced and sensible mechanisms that help ensure that artists get paid for their work. Just this proposal is neither balanced nor sensible.

Article 13 is short enough that its fundamental first paragraph tin can be reproduced in its entirety here:

Information guild service providers that store and provide to the public access to large amounts of works or other subject area-thing uploaded by their users shall, in cooperation with rightholders, take measures to ensure the performance of agreements concluded with rightholders for the use of their works or other field of study-matter or to forbid the availability on their services of works or other bailiwick-matter identified past rightholders through the cooperation with the service providers. Those measures, such every bit the apply of effective content recognition technologies, shall be appropriate and proportionate. The service providers shall provide rightholders with adequate information on the operation and the deployment of the measures, also as, when relevant, adequate reporting on the recognition and employ of the works and other subject-affair.

The essence of this paragraph is that it requires large user-generated content platforms to reach agreements with copyright holders to adopt automatic technologies that would browse content that users upload, and either block that content or pay royalties for it.

This is Not Content ID

The automatic scanning mandate described above may sound similar to what YouTube's Content ID applied science does—but there are some key differences. Perhaps the biggest deviation is that whereas Content ID only scans music and video uploads, there is no such limitation in Article 13. As such the provision anticipates that whatever other copyright works including text, photographs, and and so on, will also accept to be scanned and filtered. At one stroke of a pen, this would turn the Internet from a zone of mostly permissionless free expression into a moderated walled garden. Such a general imposition on freedom of expression online is quite unprecedented in a democratic society.

Another difference from Content ID is that many additional parties would exist pulled into these cooperative arrangements, both on the platforms' side and the copyright holders' side. On the platforms' side, Article 13 applies to any service provider that hosts "large amounts" of user uploaded content. What are "large amounts"? Nosotros have no manner of knowing for sure, only it's like shooting fish in a barrel to retrieve of many hundreds of websites that might qualify, including commercial sites such as Tumblr and DeviantArt, but also non-profit and community websites such every bit Wikipedia and the Internet Archive.

On the copyright holders' side, which rightsholders are platforms required to negotiate with? Article xiii doesn't specify. Unless further regulations or industry agreements make full in this gap, nosotros face up the prospect that platforms might have to negotiate with hundreds or even thousands of claimants, all seeking their own share of the platform's revenue. That's the worst case scenario. The best case scenario is that collecting societies will step in as intermediaries, but farther cementing their function in the value concatenation isn't such an attractive suggestion either, since most European collecting societies are national monopolies and have been known to abuse their market power.

Incompatibility with European Law and Human Rights

A constabulary that requires Internet platforms to reach "voluntary" agreements with copyright holders, is of course, the essence of Orwellian doublethink, and a authentication of the kind of policymaking by proxy that nosotros've termed Shadow Regulation. The Commission is probable taking that approach because that it knows that it can't directly require Cyberspace platforms to scan content that users upload -- an existing police force, Article xiv of the Directive 2000/31 on electronic commerce (Eastward-commerce Directive), expressly prohibits whatever such requirement.

That provision, which is roughly equivalent to the safe harbor provisions in Department 512 of the DMCA, gives conditional immunity to Internet platforms for user-uploaded content, and rules out the imposition of a general obligation to monitor such content. The Court of Justice of the Eu (CJEU) ruled in two separate cases in 2011 and 2012 that this prohibition on full general monitoring derives direct from Articles 8 and xi of the European Charter of Fundamental Rights, which safeguard personal data and freedom of expression and information.

If the European Commission proposed to directly rescind the Article xiv safe harbor, this would be a clear infringement of Europeans' beak of rights. Even so the Commission proposes to get effectually this through the sham organisation of forcing companies into private agreements. Convinced? Neither are we. It's clear constabulary that a regime tin't get around its own human rights obligations by delegating the infringement of those rights to the corporate sector.

A mandate for Internet platforms to scan and filtering users' content is exactly the kind of general monitoring obligation that Commodity fourteen prohibits. Rather than face a challenge to the Digital Unmarried Market Directive in the CJEU, it would behoove the European Committee to carelessness its attempt to rewrite the E-commerce Directive through Shadow Regulation earlier the proposal goes any farther.

At this stage of the labyrinthine European legislative procedure, the proposal is out of the European Commission's hands, and awaits annotate by the other EU institutions, the Council of the EU and the European Parliament. That review will offering an opportunity for users to counterbalance in, so get set. EFF will piece of work with our European partners to fight back against this repressive proposal -- and we will be asking for your help. Stay tuned.

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Source: https://www.eff.org/deeplinks/2016/10/upload-filtering-mandate-would-shred-european-copyright-safe-harbor

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