By Ella Jakubowska

On 15 October, the European Commission held the first of the stakeholder dialogues, mandated by Article 17 of the EU copyright Directive, inviting 65 organisations to help map current practices, and opening the door for deeper collaboration in the future.

Organisations from all sides of the debate were able to present their positions. While the first meeting focused on music, software and gaming, the next one will focus on audiovisual, visual, sports and text. These live-streamed dialogues are probably the last window of opportunity at the EU level for those who campaigned against upload filters in the copyright Directive to achieve the alleged goals of the Directive – harmonisation and modernisation of the copyright framework – without the collateral damage to citizens’ liberties. If the dialogues fail to achieve this, the battle will move to EU Member States.

The Copyright Directive was adopted as part of plans to unite Europe’s Digital Single Market in June 2019 – just over a year after the General Data Protection Regulation (GDPR) was adopted, and in the midst of an ongoing struggle over the proposed ePrivacy Regulation. The contentious Directive was welcomed by rightsholders who were keen to see online platforms take responsibility for copyright infringement; but it received criticism across civil society, academia, UN Special Rapporteur on Freedom of Expression David Kaye and even Edward Snowden, for enabling the removal of citizens’ legal content by automatic filters.

“Techno-solutionism” as a knee-jerk reaction

Techno-solutionism describes attempts to solve any and all problems with technology. The technologically-focused approach taken in the Directive and advocated for by some rightsholders is the wrong solution for the alleged problem (lack of negotiating power between rightsholders and streaming services). The upload filters deriving from Article 17 are severely error-prone (from cat purring being mistaken for copyrighted music, to evidence of war crimes being lost) and do not understand the full range of nuanced human expression, for example caricature, parody or pastiche. This situation empowers tech giants, harms small and medium enterprises, and fails to adequately protect authors. Furthermore, Article 17(7) of the Directive offers only limited mandatory exceptions for the use of content for quotation, parody or pastiche. Member States still have the opportunity to go beyond these exceptions and make all exceptions and limitations mandatory. However, the proposed automated filters will not be able to deal with the analysis of most of them. A more nuanced approach towards copyrighted content will be needed, including human supervision.

Violations and harms in the current situation

More than just theoretically flawed, the application of the copyright Directive could lead to violation of freedoms. So-called “copyright trolling” is a phenomenon used to either extort or censor individual users. When implementing the Directive, Member States should enable systems that penalise such abuses. Furthermore, the use of automated filters may collide with Article 22 of the GDPR which gives the right to data subjects not to be subject to a decision based solely on automated processing if that decision significantly affects them. How this will be dealt with in practice is to be seen.

Fundamental incompatibility with the human right to redress

The right to redress is a fundamental principle for this Directive to avoid collateral damages. The current redress mechanism has already been shown to be inadequate, as platforms are likely to turn to their Terms of Service as the excuse to delete content rather than going through the hassle of deciding if this or that exception or limitation in the Directive protects their right to use copyrighted content. We hope that the non-judicial redress mechanisms mentioned in Article 17(9) are easily and freely available to anyone needing them.

Reframing the debate to prevent violations of free expression

If the goal is indeed to target services that unfairly benefit from authors’ work, then the definition of Online Content Sharing Service Providers (OCSSPs) must be made more specific; it has to better reflect the few services that specifically profit from infringing copyright at large scale to the extent that they become alternatives to paid streaming services and that do not adequately remunerate rightsholders. Another possible solution is to reverse the burden of proof so that disputed content is not immediately removed. In essence, silence cannot play to the disadvantage of citizens: if platforms ask rightsholders for a licence, and the rightsholder does not react, this should mean that the “best efforts” threshold to obtain license has been met by the platform. If a rightsholder asks to block the content of a user and the user claims that they were within their right, the silence of the rightsholder should imply that the disputed content stays or is reinstated as soon as possible. In the case of disagreement in the dispute, human intervention would be appropriate.

The next stakeholder meeting will be held on 5 November.

First meeting of the Stakeholder Dialogue on Art 17 of the Directive on Copyright in the Digital Single Market (15.10.2019)
https://ec.europa.eu/digital-single-market/en/news/first-meeting-stakeholder-dialogue-art-17-directive-copyright-digital-single-market

Organisation of a stakeholder dialogue on the application of Article 17 of Directive on Copyright in the Digital Single Market (28.08.2019)
https://ec.europa.eu/digital-single-market/en/news/organisation-stakeholder-dialogue-application-article-17-directive-copyright-digital-single

All you need to know about copyright and EDRi (15.03.2019)
https://edri.org/all-you-need-to-know-about-copyright-and-edri/

Copyfails: time to #fixcopyright! (23.05.2016)
https://edri.org/copyfails/

Article 17 Stakeholder Dialogue: We’ll Continue to Advocate for Safeguarding User Rights (08.10.2019)
https://www.communia-association.org/2019/10/08/article-17-stakeholder-dialogue-well-continue-advocate-safeguarding-user-rights/

(Contribution by Ella Jakubowska, EDRi intern)