European Commission wants to know if web browsing should be illegal

The European Commission has launched a consultation on the future of
European copyright policy. The responses provided to the questionnaire
must be submitted by 5 February 2014 and will be used as a justification
for future proposals from the Commission – if citizens do not have their
say, the results will be a weakening of our rights to create, share and
access our cultural heritage.

In order to help citizens respond to the consultation, EDRi has joined
forces with several other organisations that fight to support citizens’
access to culture. We have produced a website to help citizens give
their views to the Commission – http://youcan.fixcopyright.eu. This
website gives background information and advice on how different
stakeholders can respond to the questions that are asked.

Some of the questions being asked are very fundamental and show just how
much is at stake. For example, question 11 asks whether the publication
of a hyperlink constitutes an “act of communication” of the content
being linked to or a “making available” of the content that is linked
to. If this is the case, the Commission asks whether the rightsholder or
rightsholders of the content being linked to should be asked for their
authorisation before the link is published. This is quite clearly absurd
– as the British government can prove. A few years ago, a web domain
that they were linking to was not renewed and was subsequently used by a
purveyor of Japanese pornography. Was the British government explicitly
transmitting Japanese porn to the public, breaching copyright in the
process?

Equally absurdly, the Commission wonders whether it should be legal to
browse any website without first having obtained the consent of the
rightsholders whose content is on the site. The reason for the question
is that a temporary copy of the website is made on the screen of your
computer and in the “cache” of your hard disk. This copy happens without
an explicit authorisation of the rightsholder and the “forbidden unless
explicitly permitted” approach of European copyright law therefore could
be interpreted as meaning that the act of browsing any website that does
not explicitly allow browsing would be an infringement. This question
has been referred to the European Court of Justice by the Supreme Court
of the United Kingdom. Whether any decision will also be transposed into
a rule that one will need extra permission to read a newspaper in a
dentist’s waiting groom remains unclear.

The core of the current legal framework is the 2001 Copyright in the
Information Society Directive. In addition to providing for injunctions
for copyright infringement, which are similar to – but different from –
the rules for injunctions in the Intellectual Property Rights
Enforcement Directive (creating confusion and legal uncertainty), it
also establishes the freedoms for citizens (for educational, disability,
personal etc, reasons) to make use of copyrighted material without prior
authorisation. However, the current Directive is chaotic and there is
lobbying underway to make a bad situation worse.

Citizens can only avail of the freedom to use protected works without
prior authorisation “in certain special cases which do not conflict with
a normal exploitation of the work or other subject-matter and do not
unreasonably prejudice the legitimate interests of the rightholder”.
Despite this, NONE of the exceptions (for parody, educational use, for
enabling use by disabled citizens etc.) are mandatory, creating a
chaotic situation where Member States have a total of over a million
different options for implementing the legislation. The response of the
copyright lobby is not (despite the fact that in their legitimate
interests are not and cannot be undermined by permitting users to have
such freedoms) to agree that such freedoms should be mandatory in each
EU Member State. Instead, they want to remove all such freedoms and
replace them with licensing schemes – which can only lead to the further
step towards the downfall of freedom of speech in Europe. It would be
hard to parody such an extreme position – but it will be even harder if
the limited rights to parody are eliminated by this review.

EU Copyright Consultation
http://ec.europa.eu/internal_market/consultations/2013/copyright-rules/index_en.htm

Let’s fix EU copyright
http://youcan.fixcopyright.eu

Porn site shame for Home Office (7.04.2009)
http://www.pcpro.co.uk/news/250844/porn-site-shame-for-home-office

Hitler ‘Downfall’ Parodies Removed From YouTube (21.04.2010)
http://www.cbsnews.com/news/hitler-downfall-parodies-removed-from-youtube/

EDRi-gram article on the legality of web browsing (3.07.2013)
https://edri.org/edrigramnumber11-13web-browsing-copyright/

UK Supreme Court case – Public Relations Consultants Association Li
mited (Appellant) v The Newspaper Licensing Agency Limited and Others
(Respondents) (17.04.2013)
http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2011_0202_PressSummary.pdf

(Contribution by Joe McNamee and Marie Humeau – EDRi)