The passage of the EU Copyright Directive last year represented one of the most disgraceful examples of successful lobbying and lying by the publishing, music, and film industries. In order to convince MEPs to vote for the highly controversial legislation, copyright companies and their political allies insisted repeatedly that the upload filters needed to implement Article 17 (originally Article 13) were optional, and that user rights would of course be respected online. But as Techdirt and many others warned at the time, this was untrue, as even the law’s supporters admitted once it had been passed. Now that the EU member states are starting to implement the Directive, it is clear that there is no alternative to upload filters, and that freedom of speech will therefore be massively harmed by the new law. France has even gone so far as ignore the requirement for the few user protections that the Copyright Directive graciously provides.
The EU Copyright Directive represents an almost total victory for copyright maximalists, and a huge defeat for ordinary users of the Internet in the EU. But if there is one thing that we can be sure of, it’s that the copyright industries are never satisfied. Despite the massive gains already enshrined in the Directive, a group of industry organizations from the world of publishing, music, cinema and broadcasting have written to the EU Commissioner responsible for the Internal Market, Thierry Breton, expressing their “serious concerns regarding the European Commission’s consultation on its proposed guidance on the application of Article 17 of the Directive on Copyright in the Digital Single Market (“the Directive”).” The industry groups are worried that implementation of the EU Copyright Directive will provide them with too little protection (pdf):
We are very concerned that, in its Consultation Paper, the Commission is going against its original objective of providing a high level of protection for rightsholders and creators and to create a level playing field in the online Digital Single Market. It interprets essential aspects of Article 17 of the Directive in a manner that is incompatible with the wording and the objective of the Article, thus jeopardising the balance of interests achieved by the EU legislature in Article 17.
In an Annex to the letter, the copyright industries raise four “concerns” with the proposed guidance on the implementation of Article 17. The former MEP Julia Reda, who valiantly led the resistance against the worst aspects of the Copyright Directive during its passage through the EU’s legislative system, has answered in detail all of the points in a thread on Twitter. It’s extremely clearly explained, and I urge you to read it to appreciate the full horror of what the copyright companies are claiming and demanding. But there is one “concern” of the copyright maximalists that is so outrageous that it deserves to be singled out here. Reda writes:
#Article17 clearly says that legal content must not be blocked. #Uploadfilters can’t guarantee that, so rightholders claim that this is fulfilled as long as users have the right to complain about wrongful blocking *after* it has already happened.
This completely goes against what users fought for in the negotiations and what #Article17 says, that it “shall in no way affect legitimate uses”. Of course, if all legal parodies, quotes etc. get automatically blocked by #uploadfilters, legitimate uses are affected pretty badly.
The copyright companies and their political friends tricked the European Parliament into voting through Article 17 by claiming repeatedly that it did not require upload filters, which were rightly regarded as unacceptable. Now, the companies are happy to admit that the law’s requirement to assess whether uploads are infringing before they are posted — which can only be done using algorithms to filter out infringing material — is “practically unworkable”. Instead, they want blocking to be the default when there is any doubt, forcing users to go through a process of complaining afterwards if they wish their uploads to appear. Since most people will not know how to do this, or won’t have the time or energy to do so, this will inevitably lead to vast amounts of legal material being blocked by filters.
As Reda rightly summarizes:
The entertainment industry is joining forces to push for the worst possible implementation of #Article17, which would not only require out-of-control #uploadfilters without any safeguards, but also violate fundamental rights AND the very text of Article 17 itself.
The EU Copyright Directive’s Article 17 already promises to be disastrous for user creativity and freedom of speech in the EU; unfortunately, the proposed EU guidance has some additional aspects that are problematic for end users (pdf), as a group of civil society organizations point out in their own letter to the EU Commissioner. What the industry’s demands show once again is that no matter how strong copyright is made, no matter how wide its reach, and no matter how disproportionate the enforcement powers are, publishing, music, film and broadcasting companies always want more. Their motto is clearly: “too much is never enough”.
Robin Edgar
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