MEPs voted 318-278 to deny JURI’s request to enter into direct negotiations with the EU Member States and the European Commission, which would have finalised the directive behind closed doors. Instead, yesterday’s Parliament vote will permit all 751 MEPs to table amendments to improve the copyright proposal, beginning in early September.

The vote unfolded on the heels of a massive outpouring of support from nearly a million people calling for a better copyright reform that upholds freedom of expression and users rights, and doesn’t simply capitulate to the demands of a small cohort of corporate rights holders pushing for Article 13 and Article 11.

The outcome rejects the binary rhetoric (and sometimes outright lies) spread by some MEPs and incumbent rights holders that the fight around Article 13 is simply a fight between Big Content and Big Tech. By denying JURI’s fast track on its committee proposal, the Parliament clearly has recognised the importance of many other stakeholders in the debate around the copyright reform, including the rights of users and the public.

MEP and IMCO Vice-chair Catherine Stihler said it best:

There are real concerns about the effect of Article 13 on freedom of expression, raised by experts ranging from the UN special rapporteur David Kaye to the inventor of the World Wide Web, Sir Tim Berners-Lee.

And there are real concern voiced by our citizens. Just yesterday I received a petition signed by almost a million people against the JURI committee mandate.

And although there is consensus about the goals behind this law, huge controversy still exists about the methods proposed. Something’s not right here. We owe it to the experts, stakeholders and citizens to give this directive the full debate necessary to achieve broad support.

Yesterday we won, but the fight is far from over. Now that the full Parliament will get an opportunity to suggest improvements to the copyright proposal, we need to redouble our efforts to fix the most egregious parts of the directive, including the harmful link tax and upload filters. But we can also resurface several other proposed changes for which we’ve been advocating, including important edits to improve Article 4 (education exception), Article 3 (text and data mining exception), and other provisions.

Thank you to the countless individuals, civil society groups, academics, libraries, creators, digital rights organisations, and others who have shown incredible support and resilience in fighting for a balanced copyright proposal. The work to #SaveYourInternet continues, and we’ll be there.

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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.

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JURI gave educators across the EU a gift in the shape of an improved educational exception – with a poison pill inside. The Compromise Amendment (CAM6) proposed by Rapporteur Voss was accepted. We are happy that the Commission’s flawed proposal for an exception that secures digital uses for education purposes has been fixed. Educators are given clarity about uses in digital environments, and the scope of the exception has been increased beyond educational establishments and their premises. There is also improved text that makes a contractual override of the exception impossible.

Yet, the poison pill remains: the Commission’s proposal in article 4(2) to give priority to licenses over the exception was adopted. We managed to secure improvement in the phrasing of this license priority: the licenses have to be tailored to the needs and specificities of the educational establishments. Nevertheless, a Member State can decide to switch off the exception, provided that a licensing scheme is in place in a given country. This means that over the coming years we could benefit from a new exception only to see it disappear – which would leave educators depending on remunerated licensing schemes.

Problems with license priority go beyond education

Licensing priority spells problems, not just for educators. It creates a precedent for overrides to any public interest copyright law exceptions. As such, it is a great victory for rightsholders. This reminds us of the “Licenses of Europe” process, in which the Commission and rightsholders tried to convince everyone that licensing is a much better tool for securing user rights than exceptions to copyright. While they failed to do so then, they seem to have won some ground in the copyright directive.

This dangerous precedent for users’ rights is even more alarming when we consider that it goes against the CJEU ruling on the issue of license priority. The Court of Justice of the European Union knew that giving priority to license offers was indefensible, as it would negate much of the substance and effectiveness of the exception or limitation and it would deny the user the right to benefit from the exception. Thus, the Court decided that the 3-step test did not require them to allow rightsholders to unilaterally force users to stop relying on the copyright exception when those rightsholders offered to conclude a licensing agreement with them. This decision represented a major win for users’ rights, and more so because in the US users may not be able to rely on fair use when reasonable licensing options are available.

If we round up today’s vote for education we are happy about the improvements to the exception but mourn what could have been and fear the consequences of this license priority. The fight is not over yet. There will possibly – likely – be a plenary vote in the Parliament where this article, as well as the other disappointing results on articles 11 & 13, could still be challenged.

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This amounts to a massive power grab by rightsholders who will enjoy much more control over how we use the Internet to communicate, share, create and inform ourselves. It is a big step away from an open Internet towards an Internet that functions as a distribution channel for mainstream culture. It is a huge loss for European cultural diversity and the freedom of expression online.

It is telling that the MEPs in the JURI committee have also voted against all attempts to give users more rights. Proposals to introduce EU wide freedom of panorama and to allow the use of protected works in User Generated Content (both of which would merely bring the law in line with reality) were voted down. The MEPs adopted a number of small improvements for users in the fields of education, access to cultural heritage and with regards to Text and Data Mining but most of these come with significant drawbacks.

The education exception contains a license priority clause that allows rightsholders to turn off the exception and dictate problematic licensing terms to educational users, which creates a dangerous precedent for users’ rights and goes against the CJEU ruling on this issue.

The Text and Data Mining (TDM) exception is limited to scientific research purposes only. The expansion that would open TDM to everyone for every purpose (which is crucial for the development of technologies such as artificial intelligence in the EU) is merely optional and will not apply across the EU as a whole.

Taken as a whole, the JURI committee’s vote shows an utter disregard for the rights of citizens in the digital environment. It is telling that both the Civil Liberties and the Consumer Protection committees have prepared much more balanced reports that have been completely ignored by the members of the Legal Affairs committee. This shows that lawmakers still treat the rights and interests of citizens and creators as spare change in the the fight between big content and big tech.

Today’s round has clearly gone to ‘big content’ in spite of warnings from pretty much anyone other than the rightsholders that this outcome will have disastrous consequences for the open Internet and our freedom of speech. Citizens’ freedom of expression should not be the function of an arrangement between rightsholders and big technology companies. It is a right that needs to be defended on its own merits and it is extremely worrisome that EU lawmakers have effectively decided to give big technology companies – that are based outside of the EU –  the responsibility to decide how European citizens can express themselves online.

We will continue to fight for the rights of users and creators and to oppose the censorship machine. The first step will be to convince enough MEPs that a decision to sell out citizens rights to big content and big tech merits a decision by the whole European Parliament:

The post Legal affairs committee sells out user rights to big content & big tech. appeared first on COMMUNIA Association.

#1 Save the Internet

For more than a year the discussion in the European Parliament has narrowed down on a number of key topics. The most attention has gone to those areas where the ideas introduced by the European Commission have the potential to break the open Internet and limit freedom of expression and  the free access to information. Both Articles 11 and 13 remain hotly contested to this very moment and it is important that you continue to tell the members of the JURI committee to Save Your Internet by voting against the compromise proposals proposed by the Rapporteur, Axel Voss, and support the alternative compromises proposed by the Greens instead.

#2 Expand user rights and protect the Public Domain

On a more positive note there are a number of issues where the JURI MEPs can make a positive difference. The Commission’s proposal was a huge disappointment with regard to empowering users and protecting the Public Domain but members of Parliament have worked hard to put proposals up for vote that would correct this. During tomorrow’s vote the JURI MEPs should vote for the alternative compromise amendments that would introduce Europe-wide exceptions allowing anyone to take and share pictures of artworks located in public spaces (the so-called freedom of panorama) and to use pre-existing works in remixes and other forms of “user generated content”. In addition, MEPs should vote in favor of the compromise amendments on articles 7-9 that strengthen the proposed mechanism that would allow cultural heritage institutions to make available out of commerce works. Lastly, the compromise amendment for article 5 contains a recognition of the principle that reproductions of works in the public domain should stay in the public domain.

#3 Fix the most glaring flaws of the Commission proposal

Finally, there are a number of issues where the Commission’s proposal was severely lacking and where the members of Parliament have not managed to put forward a response that fixes these flaws. As proposed by the European Commission, both the exception for Text and data Mining and the exception for education were at best mixed blessings and, unfortunately, the Parliament has not found a way to fully address their shortcomings.

The proposed optional exception for TDM that applies only if the right has not been reserved does not constitute more than a band-aid on the gaping wound caused by the Commission’s proposal for an limited exception (that, in effect, prevents anyone except researchers from engaging in Text and data mining). Given that there are no more substantial solutions on the table we still encourage MEPs to vote for the compromise amendments on articles 3 and 3a even though we are convinced that the only sensible option is to embrace “the right to read is the right to mine” approach.  

With regards to the education exception, the European Parliament’s compromise amendment fails to address the core shortcoming of the Commission’s proposal. The new mandatory exception should improve the very fragmented existing legal framework in the EU and benefit learners and educators alike. Unfortunately, the compromise amendment up for vote tomorrow leaves intact the licensing override that will negate the purpose of having a mandatory exception. We will continue to advocate for limiting reliance on licensing as a method to ensure access to educational materials. It has become clear from our own research that licenses do not benefit education. They impose burdensome obligations on schools and include unfair or even abusive terms.

Time is running out to tell the MEPs in JURI to act. Tell them to back stronger exceptions, safeguard the public domain and save the Internet via saveyourinternet.eu or changecopyright.org now!

The post Three things the European Parliament needs to do to #fixcopyright tomorrow appeared first on COMMUNIA Association.

The day after tomorrow, the Legal Affairs (JURI) Committee will vote on Copyright in the Digital Single Market. The educational exception in the Directive is not what we hoped when the copyright reform process started. The European Commission promised – in its DSM strategy – to reduce differences between copyright regimes and to provide greater legal certainty for cross-border use through harmonised exceptions. The Copyright in the DSM Directive furthermore proposed to reduce transaction costs for users, including educators and educational establishments.

These promises have not been met.

This is why we sent a policy letter to all members of the JURI committee asking for a better copyright for education last week. We hope this will help the committee members remember what is at stake for education in this vote, and that they will support an open, broad and flexible exception.

In the current proposal article 4 allows for an override of the exception with licensing mechanisms – which benefits rightsholders, but increases transaction costs, cause legal uncertainty for cross-border use and leads to a lack of harmonisation of copyright law, as it applies to education.

Our recent study of 10 licensing schemes for educational uses (in France, the United Kingdom and Finland) shows that (i) licences restrict the scope of protection of the educational exceptions, (ii) licenses grant questionable rights to rightsholders, and (iii) licenses impose burdensome obligations on schools.

We are concerned that the language of the new education exception will not be able to achieve its purpose of allowing cross-border use because it only allows the use within an educational establishment and within an electronic environment. This will not facilitate cross-border use across institutions and across countries.

The post Dear MEP, will you support an open, broad and flexible education exception? appeared first on COMMUNIA Association.

On Tuesday this week a group of more than 70 people who have played important roles in building the internet and developing it into the vibrant cultural space that it is today came out with an open letter addressed to the members of the European Parliament. Tim Berners-Lee, Vincent Cerf, Mitchell Baker, Jimmy Wales and 70 others write:

As creators ourselves, we share the concern that there should be a fair distribution of revenues from the online use of copyright works, that benefits creators, publishers, and platforms alike.

But Article 13 is not the right way to achieve this. By requiring Internet platforms to perform automatic filtering all of the content that their users upload, Article 13 takes an unprecedented step towards the transformation of the Internet from an open platform for sharing and innovation, into a tool for the automated surveillance and control of its users. […] The damage that this may do to the free and open Internet as we know it is hard to predict, but in our opinions could be substantial.

This leads them to the same conclusion that we had arrived at in our analysis of Article 13. The most sensible way to deal with Article 13 is to delete it entirely:

We cannot support Article 13, which would mandate Internet platforms to embed an automated infrastructure for monitoring and censorship deep into their networks. For the sake of the Internet’s future, we urge you to vote for the deletion of this proposal.

On Wednesday David Kaye, the United Nations Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, followed up with a letter that raises similar concerns with Article 13. Specifically, Kaye is troubled that Article 13 “would establish a regime of active monitoring and prior censorship of user-generated content that is inconsistent with Article 19(3) of the International Covenant on Civil and Political Rights.” The opinion of the Special Rapporteur is an important voice from an organisation that does not have a direct stake in this discussion and should therefore be considered seriously by lawmakers. From the letter:

Article 13 of the proposed Directive appears likely to incentivize content-sharing providers to restrict at the point of upload user-generated content that is perfectly legitimate and lawful […] the restriction of user-generated content before its publication subjects users to restrictions on freedom of expression without prior judicial review of the legality, necessity and proportionality of such restrictions. Exacerbating these concerns is the reality that content filtering technologies are not equipped to perform context-sensitive interpretations of the valid scope of limitations and exceptions to copyright, such as fair comment or reporting, teaching, criticism, satire and parody.

As we have argued before it would be irresponsible of the Parliament to sell out the freedom of expression, education and access to culture and information to the business interests of the publishing and entertainment industries. By now it pretty clear than Article 13 is considered a real danger by pretty much anyone except the entertainment industry which concocted this legislative monstrosity. It’s high time for MEPs to recognize that they are being led into a direction that will do grave harm to freedom of expression, the digital economy in the EU, and the internet as a medium for vibrant cultural exchange.

To help, send your MEPs an email, tweet, or phone call before the June 20 JURI vote (as in RIGHT NOW!) and tell them to delete Article 13 once and for all.

The post More and more experts warn of the dangers of Article 13 upload filters appeared first on COMMUNIA Association.

If you care about the open Internet and a world in which the interests of rightsholders are not privileged above education, research and access to culture, you need to act now. Get in touch with the Members of Parliament (MEPs) who will vote in these issues and let them know what you think. At www.saveyourinternet.eu you find a range of tools that make it easy to tweet at, mail or call them (of these three options calling is the most effective method).

Tell your MEP that you do object to the introduction of automated censorship filters that would cripple open internet platforms, that you find it unacceptable that press publishers get granted rights that they can use to limit access to online information and that Europe needs to embrace innovative technologies (such as text and data mining) instead of limiting them. Instead MEPs should stand for the interests of the citizens that they represent by demanding robust exceptions to copyright that unlock the power of the Internet for education and access to the collections of cultural heritage institutions.

With the Commission’s proposal for the DSM directive lacking in all these aspects, and the Member States having embraced the Commission’s approach, the European Parliament is our only hope of preventing this disastrous proposal from becoming reality. We have a week left to convince MEPs that they must not sacrifice the interests of users and creators across Europe to the business interests of publishers and entertainment companies. So head over towww.saveyourinternet.eu today (or use the form below) to make your voice heard!

The post Take action now and tell the European Parliament to #SaveYourInternet appeared first on COMMUNIA Association.

The result is a version of the Commission’s proposal that is even more out of balance than the original. The rights-holder lobby has managed to capture the Member States to advance their agenda to the detriment of the interests of internet users in the EU and in complete disregard of the original intention to further harmonise the fragmented EU copyright rules:

• Over the past one and a half years the Member States, driven by a mediterranean maximalist coalition (France, Italy, Spain and Portugal) have doubled down on the Commission’s highly problematic proposal to impose upload filters for open internet platforms. As we have explained here, the version of Article 13 adopted by the Member States would create a new parallel liability regime that puts the creative expression of platform users at the mercy of a censorship machine run by platform operators in collusion with rightsholders.
• Driven by the same mediterranean maximalist coalition the Member States have insisted on a narrow, innovation-hostile exception for Text and Data Mining. This approach flies in the face of the EU wide ambition to become an important player in the area of machine learning and artificial intelligence. At the insistence of more forward-looking Member States the Council text also includes an optional exception that allows TDM for a wider set of purposes and beneficiaries, but this comes at the cost of further splintering user rights in the EU.
• Under intense pressure from Germany the Member States have maintained the introduction of a new ancillary copyright for press publishers against a near-universal academic consensus that such a right will endanger the freedom of information without benefitting press publishers. In a small improvement of the Commission’s proposal the new right would now last for a maximum of 2 years and would not apply retroactively.

There are a few areas where the Member States are proposing improvements to the Commission’s proposal (such as a more streamlined process that would allow cultural heritage institutions to make out-of-commerce works available online, and a new, albeit optional, paragraph providing a legal basis for extended collective licensing) but in general the Member States have missed the opportunity to fix the Commission’s flawed original proposal.

In adopting this text the Member States have made it clear that they do not care for user rights and that they see copyright law as an instrument to protect legacy business models in the publishing and entertainment industries at the expense of education, research and public access to cultural heritage. If adopted, the Council text would drive Europe further away from a true Digital Single Market in which users across Europe have the same rights, and it fails to provide a legal framework that embraces technological innovation.

It is now up to the European Parliament to save users’ rights

All of this raises the stakes for the European Parliament. MEPs are under intense pressure to finalise their position at the end of June. With the Member States ignoring the interests of users and more or less completely siding with the interests of rightsholders, the Parliament needs to put forward a version that can counterbalance the one sided approach championed by both the Commission and the Member States. If they no not want to lose credibility MEPs need to advance proposals to safeguard the rights of European citizens, harmonise the splintered EU copyright rules, and reject demands for additional rights that will hurt European internet users.

A Digital Single Market that benefits the citizens of Europe is incompatible with privatized censorship filters or an ancillary copyright that limits the ability to share information. What is needed instead are harmonised exceptions that allow citizen across Europe to leverage digital tools for education, provide them with better access to our shared cultural heritage and allow them freely research and innovate.

Unfortunately the discussions in the JURI committee currently point in the opposite direction. Therefore it is high time to remind MEPs that they have been elected to represent the interests of citizens and should not join the Member States in promoting the special interests of the entertainment and publishing industries. You can do so right now ee via Mozilla’s ChangeCopyright tool.

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Last week (after yet another inconclusive meeting on Article 13) MEP Voss has asked the political groups to provide him their final written comments “on the MAIN and MOST IMPORTANT open issues” by Wednesday the 23rd. On the same date the Bulgarian Council presidency has scheduled an attaché meeting to discuss the latest compromise proposal.

In the light of these (final?) attempts to wrap up the discussion it is important to take another look at how the discussion has evolved since the Commission published its proposal and how the 3 different versions of Article 13 compare to each other. In order to do so we have analysed the internal logic of the Commission proposal, the last Bulgarian compromise proposal and version 6 of the European Parliament’s Legal Affairs committee compromise text and depicted the most important elements in a series of flowcharts (see below). Even a casual glance at these makes it clear that both the Council’s and the Parliament’s changes to the text have resulted in vastly more complex versions.

Commission proposal: Simple language that creates a legal mess with lots of uncertainties.

Compared to the other two versions the Commission’s proposal is a thing of beauty. The article consists of three relatively concise paragraphs which results in a relatively straightforward flowchart:

It is worth noting here that the Commission version of Article 13 manages to be so simple because it attempts to hide some of the most consequential provisions in Recital 38 of the text. Recital 38 contains language that attempts to redefine the activities of platforms that allow user uploads as acts of communication to the public and in doing so to strip these platforms of the liability limitations of article 14 of the eCommerce Directive (ECD). Stripped of the liability limitations, those platforms with “large amounts” of user uploaded content need to conclude licensing agreements with rightsholders and to deploy upload filters to filter out all unlicensed content.

We have previously described the main problems with the Commission proposal in more detail. In summary, the most important problems are that it would require online platforms to filter all user uploads (even though it is clear that filters can’t distinguish between legitimate and infringing uses of content), that it creates a lot of legal uncertainty for online platforms and that it contains insufficient safeguards for users who will be limited in their freedom of creative expression. For all of these reasons we think that Article 13 should be deleted from the proposed directive.

Council: a new parallel liability regime for Online Content Sharing Service Providers

The main difference between the current Council compromise proposal and the original Commission text is that the former is much more explicit about the intention of Article 13. The Council text brings a number of issues that are hidden in recital 38 of the Commission text out into the open. The result is a much longer Article (it has grown to 8 paragraphs) with a much more complex structure:

Before going into the details here it is important to highlight that the core idea of the Commission’s proposal remains unchanged: platforms that allow user uploads (in other words all open platforms) will need to conclude licensing agreements and deploy upload filters that filter all unlicensed content that has been identified by rightsholders. Where the Commission’s proposal would achieve this by creating legal uncertainty around the application of the liability limitations of the eCommerce Directive, the Council text minces no words and provides (in paragraph 3 of Article 13) that the ECD liability limitations do not apply to Online Content Sharing Service Providers (OCSSPs – their fancy term for open platforms).

The text further requires OCSSPs to obtain licenses from rightsholders and to filter out all content that has been identified by rightsholders and subsequently to ensure that once filtered out it remains unavailable. As such, the Council’s text replaces the notice and take down approach of the ECD with a licensing requirement coupled with a notice and stay down approach. Where the notices given under the ECD regime need to identify infringing uses of a protected work, these new Article 13 notices are simple claims that a work is owned by a rights holder regardless of whether the use is infringing or not.

This will have a substantial effect on the freedom of creative expression online (more stuff will be taken down and filtered at upload). The fact that, in an act of wishful thinking, the Council text requires Member States to ensure that the filtering measures do not negatively affect the user rights granted under exception and limitations, does not change this. Filtering technology is simply not capable of detecting when a use is covered by an exception and when it is not.

The other big change made by the Council text is the introduction (in article 2) of a definition of the services (the above mentioned Online Content Sharing Service Providers) that will need to comply with the obligations established in Article 13. While this introduces some more clarity than the Commissions ‘services that share “large amounts” of content’ criterium, it still creates more harm than good.

As we have argued in more detail before it is pretty much impossible to define a specific set of services by describing how they interact with copyright without having that definition apply to nearly any open platform. The Council’s text contains a set of exceptions that apply to a range of not-for-profit online platforms, such as Wikipedia, but even with these in place it is destined to cause a lot of collateral damage far beyond the types of platforms that are the real target of Article 13. To please the content industry the Member States are clearly willing to put large parts of the European digital economy into jeopardy.

European Parliament: Filtering obligations with a healthy dose of wishful thinking

The current European Parliament compromise is very similar in structure to the Council text and mirrors the Council’s approach to define the services (also referred as OCSSPs) that need to comply with the provisions established by Article 13. With regard to the actual provisions of the article it lacks some of the clarity of the Council’s text (it largely stays away from the question of whether OCSSPs are covered by the ECD liability limitations or not) while keeping the core of the Commission’s proposal (open platforms need to obtain licenses and deploy upload filters) intact. The result looks rather messy:

What the Parliament text lacks in legal clarity it tries to compensate by way of wishful thinking. In response to the widespread criticism of the Commission proposal from civil society groups, technology companies and academics, a number of provisions have been added to the text that, on the surface, seem to protect the rights of users.

On closer inspection these additions attempt to will the impossible into existence: similar to the Council’s version, the Parliament text requires that the upload filters must ensure “the non-availability of copyright or related-right infringing works or other subject-matter [on the platforms], while non-infringing works and other subject matter must remain available”. This is of course something that filters cannot achieve, and in practice this provision will not prevent that legitimate uses of content will be filtered out on a large scale.

In similar expressions of wishful thinking the Parliament’s text requires Member States to ensure that the “implementation of [the filtering measures] shall be proportionate and strike a balance between the fundamental rights of users and rightholders and shall not impose a general obligation on OCSSPs to monitor the information which they transmit or store”.

Instead of confronting the fact that filtering technology is not suited to distinguish between legitimate acts of cultural expression and copyright infringement, the Parliament seems to have chosen to saddle up the Member States with the impossible task of ensuring that upload filters  respect user rights. This is not only a cowardly act of symbolpolitik but also a complete failure of Europe’s elected representatives to stand up for the interests of internet users in the EU.

Looking ahead: deletion remains the only (sensible) option

After more than one and a half years neither the Council nor the Parliament have found a way of fixing the problems of the Commission’s original proposal. Of the two approaches the Council’s plan is the more honest one as it does not hide what it is trying to achieve. But neither the Council’s nor the Parliament’s approach manage to tailor the filtering and licensing requirements in such a way that they will only affect their intended targets (large commercial content sharing platforms with advertising based business models).

To anyone paying close attention this does not come as a surprise: In a world where open online platforms for sharing copyrighted content (other than music and video) are central to the digital economy, modifying the copyright rules to the benefit of a small class of rightsholders will have adverse effects throughout the digital economy. The only way to prevent these is to delete Article 13 from the directive and to address the question of remuneration for the use of creative content by open platforms in a context that is separate from general copyright policy making.

A note on the flowcharts: These have been buildt based on the latest version of the respective texts and illustrate the most important operative provisions of these texts. In order to keep them manageable we have ignored some of the details. In each flowchart we have highlighted the actual filtering provisions in light red and safeguards for user rights in light green. If you have any feedback or questions related to the flowcharts feel free to leave a comment below or mail us at communia@communia-association.org.

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