Leaked Plans Shows Top EU Body Backing Copyright Industry Against Internet Sites

[Len]

We have witnessed the slow and painful attempts by the EU to make its copyright laws fit for the digital age for nearly four years now. Along the way, there have been some good ideas, and an astonishingly bad one that would require many online services to filter all uploads to their sites for potential copyright infringements. Despite the widespread condemnation of what is now Article 13 in the proposed Copyright Directive, an important new leak (pdf) published on the Statewatch site shows that EU politicians are still pushing to make the censorship filters mandatory.

The document is an attempt by Estonia, which currently holds the Presidency of the Council of the EU -- one of the three main European Union bodies -- to come up with a revised text for the new Copyright Directive. In theory, it should be a compromise document that takes into account the differing opinions and views expressed so far. In practice, it is a slap in the face for the EU public, whose concerns it ignores, while pandering to the demands of the EU copyright industry.

Estonia's problem is that the whole idea of forcing Web sites to filter uploads contradicts an existing EU directive, one from 2000 on e-commerce. This created a safe harbor for sites that were "mere conduits" or simply hosting material -- that is, took no active part in publishing material online. The Directive explicitly says:

Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.

Most of the leaked document is a forlorn attempt to circumvent this unequivocal ban on upload filters:

In order to ensure that rightholders can exercise their rights, they should be able to prevent the availability of their content on such [online] services, in particular when the services give access to a significant amount of copyright protected content and thereby compete on the online content services' market. It is therefore necessary to provide that information society service providers that store and give access to a significant amount of works or other subject-matter uploaded by their users take appropriate and proportionate measures to ensure the protection of copyright protected content, such as implementing effective technologies.

It is reasonable to expect that this obligation also applies when information society service providers are eligible for the limited liability regime provided for in Article 14 of Directive 2000/31/EC [for hosting], due to their role in giving access to copyright protected content. The obligation of measures should apply to service providers established in the Union but also to service providers established in third countries, which offer their services to users in the Union.

In other words, even though Article 14 of the E-commerce Directive provides a safe harbor for companies hosting content uploaded by users, the EU wants to ignore that and make online services responsible anyway, and to require upload filtering, even though that is forbidden by Article 15. Moreover, this would apply to non-EU companies -- like Google and Facebook -- as well. The desperation of the Estonian Presidency is evident in the fact that it provides not one, but two versions of its proposal, with the second one piling on even more specious reasons why the E-commerce Directive should be ignored, even though it has successfully provided the foundation of Internet business activity in the EU for the last 17 years.

Jettisoning that key protection will make it far less likely that startups will choose the EU for their base. The requirement to filter every single upload for potential infringements will probably be impossible, and certainly prohibitively expensive, while the legal risks of not filtering will be too great. So the Estonian Presidency is essentially proposing the death of online innovation in the EU -- rather ironic for a country that prides itself for being in the digital vanguard.

The leaked document also contains two proposals for Article 11 of the Copyright Directive -- the infamous link tax. One takes all the previous bad ideas for this "ancillary copyright", and makes them even worse. For example, the new monopoly right would apply not just to text publications in any media -- including paper -- but also to photos and videos. In addition, it would make hyperlinks subject to this new publisher's "right". The only exceptions would be those links not involving what is termed a "communication to the public" -- a concept that is so vague that even the EU's top courts can't agree what it means. The other proposal completely jettisons the idea of any kind of link tax, and instead wants to introduce "a presumption for publishers of press publications":

in the absence of proof to the contrary, the publisher of a press publication shall be regarded as the person entitled to conclude licences and to seek application of the measures, procedures and remedies … concerning the digital use of the works and other subject-matter incorporated in such a press publication, provided that the name of the publisher appears on the publication.

This is something that has been suggested by others as providing the best solution to what publishers claim is a problem: the fact that they can't always sue sites for alleged copyright infringement of material they have published, because their standing is not clear. It effectively clarifies that existing copyright law can be used to tackle abusive re-posting of material. As such, it's a reasonable solution, unlike the link tax, which isn't.

The fact that two such diametrically-opposed ideas are offered in a document that is meant to be creating a clear and coherent way forward is an indication of what a mess the whole EU Copyright Directive project remains, even at this late stage. Unfortunately, the Estonian Presidency's unequivocally awful drafts for Article 13 suggest that the EU is still planning to bring in a law that will be bad for the Internet, bad for innovation, and bad for EU citizens.