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.

The post European Parliament to vote on copyright reform mandate this week – who’s voice will matter? appeared first on COMMUNIA Association.

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):  

The IMCO/LIBE text is a substantial departure from the flawed logic of the Commission’s proposal. Instead of trying to force all open platforms, regardless of their business models, into collaborating with rightsholders and deploying upload filters, the IMCO/LIBE text tries to differentiate between activities of open platforms that are covered by the liability limitation of Art 14 of the e-Commerce Directive (ECD) and activities of platforms that are not. All further provisions of the IMCO/LIBE version only apply to those activities of open platforms that are not covered by Art 14 ECD. These provisions still contain an obligation to obtain licensing agreements (for services that are not covered by Article 14 ECD this is nothing new) and an obligation to “take appropriate and proportionate measures to ensure the functioning of licensing agreements concluded with rightsholders”.  This is a toned-down version of the filter language in the Commission’s proposal.

In the IMCO/LIBE text this requirement is counterbalanced by requirements on the platforms and rightsholders to “put in place complaints mechanisms that are available to users in case of disputes over the implementation of the licensing agreements” and an explicit requirement that users must be provided with a possibility of “asserting their right of use under an exception or limitation”.

The LIBE/IMCO approach is much more reasonable and would have a smaller impact on the freedom of creative expression in Europe. Stripping away the liability protection that has allowed a wide variety of online platforms to flourish (as proposed by the Commission and now backed by the Council) is guaranteed to cause substantial collateral damage to the digital economy in the EU. Adopting a text based on the IMCO/LIBE language the European Parliament could offer a real alternative that is much more targeted in its application. Instead of burdening a wide range of online services with filtering requirements it would make additional measures for online platforms dependent on a case-by-case assessment of the nature of their activities.

Given that the discussion of the compromise texts proposed by MEP Voss in the JURI Committee seems to be stuck, reverting to the IMCO/LIBE language might offer a way out for MEPs. If, on the other hand, MEP Voss and his backers insist on the approach they have followed so far, the IMCO/LIBE language could be a basis for an alternative compromise backed by MEPs who refuse to give in to the demands of rightsholders and care for the rights of EU internet users and creators.

Let’s hope that MEPs realise that this alternative option exists before it is too late.

The post Here is an alternative version of Article 13 that the European Parliament should support appeared first on COMMUNIA Association.

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.

It does so by creating a parallel liability regime for “Online Content Sharing Service Providers” (OCSSPs) that strongly incentivises them to employ technological measures that “prevent the availability on [their] services of unauthorised works or other subject-matter identified by rightholders”. Or put into plain language: OCSSPs need to employ content filtering technology or they are liable for copyright infringements of their users (which is a risk that no platform operator will be willing to take on).

What the Member States fail to understand (and what the members of both LIBE and IMCO seem to have gasped) is that open online platforms are much more than just convenient content distribution platforms for big rightsholders: they are the space where an increasingly diverse field of creators and consumers meet each other to explore, create, remix and discover culture. Requiring these platforms to behave in accordance to the perceived needs of big rights holders, as laid down in the Commission’s proposal or the new Council text will kill off what makes these platforms special and misunderstands their importance to contemporary cultural production.

Member States must understand that by following the demands of rightsholders they are risking to put online platforms into a straightjacket that robs them of all the aspects that make them unique. Apart from the legacy intermediaries who mourn the time when they were in full control of the distribution mechanisms for culture, no one wants to turn the internet into a lame copy the broadcast mediums that shaped how we could access and interact with culture during the second half of the 20th century (the internet is more than a high resolution version of the glorious minitel).

The post European Parliament Civil Liberties committee is second EP committee to reject mandatory upload filters appeared first on COMMUNIA Association.

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.

But the key is that, as imperfect as it is, it truly represents a compromise between the extremities of the “delete” and “make platforms liable for all the content they host and make available” positions. That is, if compromise is understood not as an exercise in survival of the fittest in negotiating, but a genuine effort to give everyone something. The rightholders would have their special provision on the perceived value gap, the users would be able to post without a fear to be censored preventively, and the platforms would be liable only in the cases envisioned in the e-Commerce Directive.

When we look at it this way, it becomes clear why IMCO saw the LIBE draft as a way to reconcile various sides of the debate. It would be good if, given the array of positions presented by its members, the LIBE Committee also decide that language of the draft opinion written by MEP Boni that way.

There is also another definition of compromise that says it is the art of making everybody equally unhappy. Rapporteur Boni’s version of article 13 will achieve exactly that. It is hard to speak for the rightholders, but as far as the users go, this is the amount of misery we can live with sharing and communicating online.

The post Before the Civil Liberties Committee vote: will reason win? appeared first on COMMUNIA Association.

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). Since we (and many others) have repeatedly argued that the filtering mechanisms required by article 13 would infringe on users (fundamental) one would assume that the above passage would require ALDE MEPs to oppose article 13. However, the next paragraph of the position paper somehow manages to translate the above passage into an imperative to “stand up for the protection of rights holders legitimate interests”

ALDE therefore stands up for the protection of right holders’ legitimate interests whereby ensuring the creative sector to prosper and to preserve cultural diversity in Europe. Similar rules need to be found for the online world as exist in the offline world in order to minimise copyright infringements, thus we need to ensure a fair remuneration of authors and performers and to encourage investment in the creative & cultural sector.

This passage is problematic for a number of reasons such as the nonsensical obsession with similar rules for online and offline “worlds”. More importantly this passage re-affirms the founding myth of the discussion that saddled us up with the upload filters proposed by article 13: It implies that the Internet somehow prevents Europe’s creative sector from prospering. While there can be no doubt that the digitisation of economic and cultural transactions has brought massive change to the cultural sector and the music industry in particular, there is a lot of evidence that the EU music sector is doing fine in the digital environment.

ALDE MEPs need to be reminded that they have been elected to protect fundamental rights

While these internal contradictions show that ALDE has not really managed to establish a common coherent position on the questions raised by the DSM directive, it nevertheless points to a way out. Given that the proponents of the article 13 have still not managed to back up the narrative that digitisation is hurting the EU cultural & creative sector ALDE should base their positions on the imperative to protect fundamental rights including the freedom for creative expression that has been greatly enhanced with the advent of open internet platforms.

The ALDE MEPs in the LIBE committee will have the chance to do so next month. In the run up to the vote in LIBE we may want to remind Nathlie Greisbeck (FR), Filiz Hyusmenova (BG),Sophia in ‘t Veld (NL), Louis Michel (BE) and Cecilia Wickström (SE) that the have very likely not been elected to limit our online freedoms. That would also be in line with the overall ambition expressed in the position paper:

As the most pro-European group in the European Parliament ALDE advocates to facilitate equal access to culture, education, research and innovation – for all European citizens.

The post Bending over backwards – ALDE wants to ensure online is like the offline appeared first on COMMUNIA Association.

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.

The article 13 would result in general monitoring obligation in order to prevent copyright infringement and will lead to preventive censorship. A recently published comparative study published by the Council of Europe reminds us  that any restriction on the right to freedom of expression must be provided for by law, be proportionate and follow legitimate objectives. Blocking online speech should only be a measure of last resort and applied with great caution. It should be clear that Article 13 does not meet these criteria.

A crucial vote ahead

As mentioned above, the Committee on Civil Liberties, Justice and Home Affairs (LIBE) will soon take its position on proposed directive  and we believe that this Committee should take a strong standing against content filter regulation in order to protect freedom of expression online. Upload monitoring software cannot tell infringement apart from legal uses, like parody and other user rights guaranteed 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. For the LIBE committee to be a credible voice in this discussion, the MEPs in LIBE must vote for the the only sensible approach to article 13 and propose its deletion.

The post Strong voice of civil liberties organisations against censorship in copyright framework appeared first on COMMUNIA Association.

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.

MEP Boni also proposes to remove preventing the availability of works identified by rightholders from article 13. It further brings the projected reality to current practices, where rightholders are notified if their content is uploaded by users and then decide whether to take it down or let it be. This is really important, as this provision combined with reliance on content recognition creates the danger of automated blocking of anything that has been recognised by rightholders, even if published under a copyright exception.

Making sure E-Commerce Directive stays intact

In a way, LIBE rapporteur is lucky to have been able to see all the opinions grappling with the issue of what sort of service providers would fall under the directive. Building on these perspectives, he offers quite an elegant way to introduce some common sense in the possible future practice of applying article 13.

Those who should conclude agreements with rightholders, according to LIBE rapporteur, are Information Society Service Providers that offer users content storage services, that provide the public with access to the content, and that are not eligible for the liability exemptions under the E-Commerce Directive due to that activity. Recital 38 further explains that they need to actively and directly make works available as well as promote these works to the public to be considered liable under article 13. All the conditions accumulated point at a very specific set of platforms that facilitate and promote user-to-user interaction based on copyrighted content (They basically point at video sharing platforms such as YouTube).

If article 13 is implemented in the shape proposed by rapporteur Michal Boni, those few platforms should conclude licensing agreements with rightholders and ensure protection of works through appropriate and proportionate measures. That sounds more like a good recommendation on fair business practice than a provision that needs to be enshrined in the directive. But in fact this is a way to set a limit on abusing available technologies to the detriment of fundamental rights. In that sense this intervention is well justified by the mandate of the LIBE Committee.

On the other hand, the fact that these conditions would create additional barriers for operators of open platforms cannot be ignored. There is a visible trend to transform the internet from a space of peer-to-peer exchange into a platform that is governed and shaped to accommodate powerful industries. MEP Boni’s concept would perhaps slow these processes but definitely not counterbalance this trend.

Users have a say in defining best practices

In a way the Directive Proposal on Copyright in DSM is evidence to the fact that politicians are willing to give power to private actors. If implemented, the Directive would let private entities define what works and what doesn’t work in putting article 13 into practice. LIBE draft opinion stirs that power balance a bit with adding users’ representatives to the mix. Users’ perspective should always be sought whenever there is a possibility that they will face limitations in exercising their rights.

Rapporteur Boni does not propose to completely change the position of users in the negotiations over revenue flow but he offers some reinforcement. In ensuring user access to court or a competent authority to clarify use under a copyright exception, and in underlining that these are the rightsholders who have responsibility for claims over the use of their works, the opinion provides a basis that user rights matter.

We should pull the plug on this one, but we probably won’t

We still believe that the whole idea for article 13 is wrong from the perspective of users and the sensible way out of it is to delete the article and the corresponding recitals. We also see the internal split in all the Committees and political groups regarding article 13 that makes the win of the nuclear option “delete” politically impossible.

The rapporteur has decided to take a politically constructive path and to offer a more compromise-ready concept. As rational as it is, it is somehow disappointing that the very Committee set to protect fundamental rights is not poised to take a firmer stand.

Read more:

• Draft Opinion of the Committee on Civil Liberties, Justice and Home Affairs on a proposal for a directive on copyright in the Digital Single Market
• Legal Affairs Committee’s leading MEP tries to diffuse the content filter bomb – COMMUNIA analysis of JURI draft report
• COMMUNIA Position Paper on Use of Protected Content by Information Society Providers

The post Last EP Committee opinion on copyright reform balances civil liberties with political reality appeared first on COMMUNIA Association.