We published a call to action to stop upload filters from becoming the norm in the EU. Check out more information at https://edri.org/contact-ep-juri/
Published originally at: https://edri.org/six-states-raise-concerns-about-legality-of-copyright-directive/
According to a new leak, a number of EU Member States share our serious concerns about the proposal for mass surveillance and censorship of uploads to the internet in Europe, included in the European Commission’s proposal for a new copyright Directive. Those Member States seem unwilling to build a censorship machine forcing EU countries to adopt Google’s current practices. They highlight that such practices should not be implemented without making sure of the consequences for fundamental rights and for the rule of law.
The leaked document contains a list of questions posed to the internal legal service of the Council of the EU, signed by six EU Member States: Belgium, the Czech Republic, Finland, Hungary, Ireland and the Netherlands. From the questions, it appears that those Member States feel that the proposals for the upload filter are so grave that their legality is in serious doubt. They have asked the Council legal service to evaluate if the proposal is legal, in light of the proactive monitoring of content being demanded. Following the rulings (Scarlet/Sabam, Netlog/Sabam) of the Court of Justice of the European Union (CJEU) that such proactive filtering are a disproportionate breach of freedom of expression and information, freedom to conduct a business and to the protection of personal data, the Member States want a neutral evaluation.
They also ask if these measures are “justified and proportionate”, in order to verify if they would be in line with the Charter of Fundamental Rights of the European Union. These Member States also ask if the fact that one article of the proposed copyright Directive could fundamentally change the scope of the liability principles for internet providers in the e-commerce Directive. Those principles are crucial for freedom of expression in Europe, because they prevent internet companies from being excessively incentivised to restrict users’ communications.
The six Member States also raised crucial questions about the argument that searching for specific files (within all internet traffic) is a “general” monitoring obligation (see Question 3). This doubt appears very valid, bearing in mind that the e-Commerce Directive (recital 47) explicitly states that exceptions to the prohibition of general monitoring obligations would only be possible when searching for data in “a specific case”. Are millions of searches “a specific case”?
Finally, they also ask whether the wording “communication to the public” is being mixed up with the expression “providing access” when, as these Member States recall, “(t)he CJEU has never considered that is (sic) was sufficient for a service to be ‘providing access’ in order to establish that it is communicating to the public.”
The Council legal service will have to analyse thoroughly these questions before it can take a position on the subject, but right now it seems they will only deliberate orally during the next working group on 11-12 September. It is clear that the European Commission should have, but apparently did not, carry out a neutral assessment of these questions before launching its proposal for the copyright Directive. Therefore, it is welcome that the six EU Member States have invested time and resources in diligently raising fundamental questions on illegality, legal uncertainty and outright chaos that the upload filters suggested in Article 13 of the proposed Directive would bring. It is crucial to clarify what they would mean for human rights in the online environment, for European innovation and for Europe’s credibility in defending online freedoms in its foreign policy. The EU Presidency, Members of the European Parliament (MEPs) supporting the censorship machine, and some Member States (such as France, Spain, and Germany) should take note of the serious questions posed to the Council and re-think their positions on this debate.
Leaked document: Questions from Member States to the Council legal services on the Censorship Machine
EU countries question legality & attack on fundamental rights
No, you can’t enjoy the music you paid for, says EU Parliament Committee (05.07.2017)
Proposed Copyright Directive – Commissioner confirms it is illegal (28.06.2017)
EU Copyright Directive – privatised censorship and filtering of free speech (10.11.2016)
Copyright reform: Document pool
(Contribution by Diego Naranjo, EDRi)
In Copyright Reform: Unlocking copyright for users COMMUNIA asks several civil society groups, EDRi among them, for their view on the current copyright reform: what are the biggest hopes, the biggest fears and the concrete plans to #FixCopyright.
Listen to what Diego Naranjo, EDRi’s advocacy manager has to say and join the discussion now.
All contents in this video have been released into the Public Domain via a CC0 dedication.
Music (in order of appearance):
– font.ubuntu.com/ / font.ubuntu.com/licence/
(originally published at https://edri.org/towards-corporate-copyright-reform-eu/)
On 24 August, Statewatch leaked the draft Impact Assessment (IA) of the European Commission (EC) on the copyright reform.
Impact Assessments are an essential part in the decision making process. They are where the EC analyses the different options available when considering a policy initiative. Ahead of the official presentation of the final IA in September 2016, the leak hints the range of proposals that could be adopted in the European Union (EU) on copyright matters.
During our copyfails blogpost series we described how badly the EU copyright regime is broken, and how these failures could be fixed if the political will existed. However, after reading the draft IA, our conclusion is that EU policy-makers do not seem to think it is worth the effort to bring copyright to the XXI century. Ignoring the results of the copyright consultation of 2014, and despite not having published the analysis on the results on the public consultation on ancillary copyright and freedom of panorama, the Commission has a plan: Let’s ignore all facts (even those previously identified) and avoid a real reform at all costs.
The draft text shows:
First, the long-awaited copyright reform is likely to become a patchwork of concessions to lobbyists’ demands. If a ban on geo-blocking was something that had any chance to be discussed, the film industry fought that idea, and has prevailed in its demands to maintain the borders in Europe’s “digital single market”. If news publishers wanted an EU wide version of the failed ancillary copyright initiatives to “tax” Google in Spain and Germany, they they will be delighted with the even more extravagant and dangerous position being adopted by the Commission. While the national-level initiatives have been very controversial and have lead to serious consequences, the Commission is going much further. “Ancillary copyright on steroids” seem to the Commission to be the best option, despite publishers themselves admitting that this measure, in their most optimistic possible scenario, would only lead to a ten-percent increase in revenues. Finally, when the music industry giants started complaining about how little money they get from YouTube (despite the billions they do receive), they were given a proposal to fix the so-called “value gap” extending the same system to other online platforms.
Second, once the corporate wish list was diligently followed, the Commission felt creative and thought that extending the automatic identification of works, Google’s Content ID, and making it the new standard would be a good idea. And why not adopt a Google product as a standard? Why not adopt a Google product that is regularly used to delete perfectly legal content? Why not give rights-holder the power to de facto overturn legislators’ decisions on copyright flexibilities? Why not create another barrier for Europe’s online entrepreneurs?
Content ID tools cannot deal with the nuances of copyright law. This will inevitably lead into restrictions on uses of cultural content which are permitted under legally safeguarded copyright flexibilities (“exceptions and limitations”), for example, copyrighted works in teaching environments. Furthermore, the huge costs of creating such a system would impede small and medium enterprises from competing in the market with giants like Google and seriously undermine the possibilities to create new businesses in Europe.
Despite the bad news that this draft IA brings, not everything is lost yet. The European Commission has time and the duty to fix the draft Impact Assessment and prepare the copyright reform that the EU needs. At this stage a solid alliance of diverse stakeholders is needed in order to subvert the corporate copyright reform that could be announced this month.
European Commission Staff Working Document Impact Assessment on the modernisation of copyright rules
European Copyright Leak Exposes Plans to Force the Internet to Subsidize Publishers
Google snippet tax, geoblocking, other copyright reform shunned in EU plan
Commissioner Oettinger is about to turn EU copyright reform into another ACTA
Copyfails: Time to #fixcopyright!
(Originally published at the EDRi website as part of our campaign to reform EU copyright)
We believe that new technologies bring new ways to access culture – they are not a threat for creators. We believe that the legitimacy crisis of the current EU copyright regime is created by the system itself. We believe there’s a need for a modernised copyright regime which takes into consideration the needs of all parts of society, including creators.
Europe needs a more profound reform of the EU copyright regime than the one that the European Commission has announced. To illustrate this, we have identified nine copyfails – crucial failures of the current EU system. You can read the first blogpost of our “copyfails” series, presenting the copyfail #1 here.
The European Commission has set in its agenda reforming copyright as one of the foundations to build the Digital Single Market. However, the Communication published at the end of 2015 did not meet the expectations of the announced “more modern, more European” copyright. On the contrary, the Commission apparently only wants to paper over the serious cracks in the wobbling structure of EU copyright legislation rather than addressing the real problems.
Are you ready to #fixcopyright in the EU? Follow #fixcopyright on Twitter!
Copyright reform: Restoring the facade of a decrepit building (16.12.2015)
I intervened on 1 June 2016 in an event hosted by Isabella Adinolfi in cooperation with Commons Network, titled: Roundtable: Why the EU needs Knowledge Commons.
“In late 2015 the Commons Network published the paper: The EU and the Commons: A Commons Approach to European Knowledge Policy. It outlines the compelling logic, benefits and ethics of a commons approach to knowledge, with an emphasis on how that could improve policy in certain areas such as health, the environment, science and culture, and the Internet.” (Source: http://commonsnetwork.eu/roundtable-why-the-eu-needs-knowledge-commons/)
My intervention starts around 48:10 and is about copyright reform in the EU:
Originally published at: https://edri.org/copyright-reform-restoring-the-facadeof-a-decrepit-building/
“The Special Rapporteur also proposes to expand copyright exceptions and limitations to empower new creativity, enhance rewards to authors, increase educational opportunities, preserve space for non-commercial culture and promote inclusion and access to cultural works.”
These recommendations come from the 2014 report on Copyright policy and the right to science and culture, from the UN Special Rapporteur in the field of cultural rights, Farida Shaheed.
On 9 December 2015, the European Commission presented its Communication on a new framework for a “modern, more European copyright”. The Communication focuses on access to content across the EU, adapting some exceptions, attempting to improve the market, and enforcing certain aspects of copyright.
Unfortunately, however, the Commission has lost an important opportunity to launch a real reform of the broken and outdated EU copyright framework. Its Communication lacks the ambition to challenge the powerful lobbying from investors and rights-holders, and make copyright rules truly fit for the 21st century – for the benefit of all. After admitting that the “fragmentation of copyright rules in the EU is particularly visible in the areas of exceptions”, the Commission seems to be committed to not to do anything about it. By focusing only on the “low-hanging fruit” (exceptions for education and research, freedom of panorama, geo-blocking…), the Commissioner for Digital Economy and Society Günther Oettinger and Vice-President of the EU Commission Andrus Ansip are presenting a public relations campaign on the “changes” for the Digital Single Market, rather than a powerful policy document that deals with the challenges which need to be addressed.
The oldest of the norms governing copyright in the EU, the so-called InfoSoc Directive (Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society), was passed before the existence of YouTube, WordPress and Facebook. Despite the challenges and proposals mentioned in the Commission’s copyright consultation in 2014 and in the European Parliament report on the implementation of the InfoSoc Directive, the Commission failed to take them into consideration in its Communication.
Among the missing aspects that the Commission seems to be avoiding is the need to harmonise the system of exceptions and limitations fully and to make it more flexible, as United Nations (UN) Rapporteur Farida Shaheed suggested in her report. Under current EU copyright law, the exceptions and limitations listed in the InfoSoc Directive must, by law, comply with the strict interpretation of the Berne Convention’s three-step test. Therefore, there is no justification of not making all exceptions and limitations mandatory since they comply with international law, and there is no undue loss on the part of the rights-holder.
Finally, the Communication has also failed to step up firmly against the circumvention of legislators’ decisions. The Commission needs to state clear for once and for all that when democratic decisions have been made to grant flexibilities to copyright, technology companies need to abide by the law. However, this is exactly the opposite of what happens today. Companies such as Google (via its Content ID tool) allow the automatic deletion of content that is perfectly legal under EU law, while digital restriction technologies prevent private copying, even where this has been permitted by legislators.
This issue of enforcement is also one of the topics included in the ongoing public consultation on platforms, for which EDRi prepared an answering guide and a submission tool. It will also be tackled during the consultation on the enforcement of so-called Intellectual Property Rights (IPR) that the Commission launched on 9 December. Citizens now have the opportunity to raise their voice and provide a counterweight to arguments based on, for example, the flawed statistics prepared by the Office for the Harmonization of the Internal market (OHIM) and the European Patent Office (EPO) which have recently been myth-busted by the Copyright for Creativity Coalition (C4C). EDRi encourages everyone to answer these two consultations, to make citizens’ and civil society’s voices heard.
European Commission Communication: Towards a modern, more European copyright framework (09.12.2015)
EDRi tool to respond to the EC Consultation on Platforms (08.12.2015)
EDRi: EDRi summary report of responses to the copyright consultation (30.07.2014)
European Commission launches consultation on IPR enforcement (09.12.2015)
YouTube’s Content ID (C)ensorship Problem Illustrated (02.03.2010)
C4C: Copyright Myths and Facts
(Contribution by: Diego Naranjo, EDRi)
(Originally published as an ENDitorial at EDRi gram 13.11, 3 June 2015: https://edri.org/enditorial-copywrong-copyright/)
“I’ve got two 12-year-old criminals in my kitchen and that can’t be right”
(Jonathan Worth, professional photographer)
The first round of debates surrounding the copyright reform in the European Parliament are reaching their last stages. Pavel Svoboda’s report on Intellectual Property Right (IPR) enforcement was published on 19 May. The report contains a mixture of negative and positive elements which need to be taken into consideration.
Among the negative aspects, we find simplistic statements, for example that IPR infringements discourage growth (Recital D). In reality, the situation is far more nuanced. For example, while the slow adaptation of the music industry to the digital environment has driven a lot of infringements, the market has adapted. Income from concerts is, in fact, growing in the last years. The omnipresent mantras of “follow the money” and “commercial scale” are now happily together in the same paragraph (paragraph 3), still without a clear definition of what these concepts imply. Nobody has sought to define “follow the money” while even the European Commission has said that its 9-year-old definition of “commercial scale” is probably inadequate.
Then, all sprinkled through the Report, there is positive commentary to the generally lamentable work of the Observatory on IPR infringements. Taking into consideration the numerous flaws of much of the output of the Observatory, the gratuitous fawning and, even worse, the calls to use its work to build upon it a new “Intellectual Property” legal framework, seems misplaced and ill-informed to say the least. There is also a mention of the “lack of awareness” of the young generation of the importance of IPR infringements, referring to a study which does not actually say that. It also seems to ignore the results of the copyright consultation where thousands of users called for a Intellectual Property (IP) framework adapted to the 21st century. Finally, the call for “cooperation” of the main Internet stakeholders, which sounds too much like the same old call to privatised law enforcement and the undefined call to “follow the money”.
Among the positive elements, the Report presents calls for balances between fundamental rights and privatised law enforcement (paragraph 10), although it is not clear what this call actually means. There is also the support for attractive licit offers to combat unauthorised use of content (paragraph 37) and for a “comprehensive legal framework to combat IPR infringement adapted to the online environment, with full regard for fundamental rights and freedoms, fair trials, proportionality and data protection” (paragraph 57). Finally, the Report asks for measures “guaranteeing a balanced approach representing the interests of all stakeholders involved, and, in particular, of consumers and their right of access to content” (paragraph 58).
The Plenary of the European Parliament will vote on the Report in the week beginning 7 June.
Julia Reda’s Report on the implementation of the so-called InfoSoc Directive (one of the foundations of EU Copyright law), on the other hand, has been delayed and is now going to be voted in the European Parliament Committee on Legal Affairs (JURI) on 16 June. The recently launched copywrongs.eu website contains a good summary of concrete proposals on the harmonisation of exceptions and limitations and for a modernised EU Copyright framework. This new framework should be one where the vast majority of citizens are not considered as offenders of intellectual property rights for doing things that seem (and are) perfectly normal, such as private copying or re-using copyrighted material for parody purposes. The copywrongs site also offers a free user-friendly tool developed by EDRi observer La Quadrature du Net to call Members of European Parliament (MEPs) to let them know your position on the debate.
Given the immense disproportion between rightsholders’ lobbyists and civil society advocates, this tool will help to amplify citizens’ voice. Since there are only a few days before the vote, the time is to get informed via our handbook on copyright and via copywrongs.eu and to take action now for a modernised EU copyright framework!
EDRi’s document pool on the copyright reform
Summary report of the responses to the copyright public consultation (30.06.2014)
Economists say P2P file-sharing fuels art (18.06.2009)
Copyright in the age of the internet (EP video)
EDRi paper: Copyright – challenges of the digital era
C4C Copyright Manifesto
(Contribution by Diego Naranjo, EDRi)