Latest copyright votes: Filtering, blocking & half-baked compromises

On 11 July, two Committees in the European Parliament voted on their Opinions on European Commission’s proposal for a Copyright Directive: the Committee on Culture and Education (CULT) and the Committee on Industry, Research and Energy (ITRE).

CULT decided to abandon all reason and propose measures that contradict existing law on monitoring of online content. They also contradict clear rulings from the highest court in the EU on internet filtering. And for the sake of being consistently bad, the Committee also supported ancillary copyright, a “link tax” that would make linking and quotation almost impossible on social media.

ITRE made a brave effort to fix the unfixable “censorship machine”, the upload filter proposed by the Commission. On the one hand, this demonstrates a willingness in the Parliament to resist the fundamentalism of the Commission’s proposal. On the other, it shows how impossible this task really is. Despite deleting the reference to “content recognition technologies”, ITRE has decided to keep the possibility of measures to prevent the availability of copyrighted works or “other subject matter” which may or may not be understood as supporting preventive filtering.

In its Opinion, the CULT Committee proposes measures that would attack both European businesses and citizens. The “compromise amendments” to which CULT has agreed made the bad Copyright Directive proposal of the European Commission even worse. Under these “compromise amendments”, it would no longer be possible to store music recordings, video files or any other copyrighted content on European cloud storage services, even when the content has been legally acquired. European cloud services would have to install filters to either block uploads, or to pay “fair” licenses for any copyrighted material that was uploaded.

While imposing filters for copyright purposes, CULT decided in April 2017 to adopt an amendment to the Audiovisual Media Services Directive (AMSVD) to prohibit the use of the exact same method, upload filtering, for restricting hate speech and terrorist content. It is unclear why CULT thinks that upload filtering is ineffective and disproportionate for terrorism, but effective and proportionate for copyright.

Regarding the proposal for ancillary copyright (“link-tax”), included in the Article 11 of the Copyright Directive proposal, views differ in these two Committees.

In ITRE, the Rapporteur initially tried hard to make sense of the original text of the article, but the final Opinion lost much of that first motivation. First of all, the Committee lost the chance of supporting the amendments that called for deletion of the Article 11 in its entirety, which was the only reasonable option. There have already been two failed experiments to introduce the “link tax” in Germany and Spain. Europe should not repeat the same mistakes on the EU level. As a result, this proposal should not have stayed in the final text of the Opinion, and should be left out in the final position of the Parliament, which will be voted in October. The amendments adopted by the Committee have broadened the scope to non-digital publications, worsening the original proposal and missing the opportunity of agreeing on the insufficient, but a bit less harmful, compromise amendments where the new “right” was going to be replaced by a “presumption of transfer or license by authors to publishers”.

The CULT has also passed an amendment calling for the removal of the word “digital” from “digital use of their press publications”, broadening the scope of the Commission’s proposal. In a politically-driven attempt to escape public criticism, CULT proposed to remove the“link tax” for non-commercial use of press publications by individual users. However, as people use commercial networks for sharing press snippets, this amendment would have zero impact in the real world. The Commission put an absurdly high 20-year protection limit in its proposal to allow the other institutions to find a “compromise” lower limit. CULT’s amendments lower the protection under ancillary copyright from twenty years to eight years. It also includes an additional text on “fair share of the revenue generated going to journalists”, without any indication of how this could be achieved or calculated.

The main purpose of the Opinions of these two Committees is to provide specialised expertise to the Committee in charge of the Copyright Directive in the European Parliament, the Committee on Legal Affairs (JURI). The Directive was previously under the leadership of Maltese Parliamentarian Therese Comodini Cachia, who spent untold hours consulting with all stakeholders and producing a balanced draft report. Since she left the European Parliament, she has been replaced with Axel Voss. Within days, he abandoned the diligently prepared approach of Ms Comodini Cachia and is now pushing for a one-sided, restrictive Directive, which stands little chance of surviving proper legal scrutiny. To push the German conservative perspective as the approach to be taken by the European People’s Party, he has even prepared a guide on the copyright Directive.

In September 2017, EU Member States and JURI will have the final discussions before the vote in JURI on 10 October. This will be a crucial moment and the final opportunity for the civil society to make sure citizens’ point of view will be considered before the next stage in the legislative process.

This article is also available in German at https://netzpolitik.org/2017/filtern-sperren-halbgare-kompromisse-erste-eu-ausschuesse-haben-ueber-urheberrecht-abgestimmt/.

Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market (14.09.2016)
http://ec.europa.eu/transparency/regdoc/rep/1/2016/EN/1-2016-593-EN-F1-1.PDF

No, you can’t enjoy the music you paid for, says EU Parliament Committee (05.07.2017)
https://edri.org/no-you-cant-enjoy-the-music-you-paid-for-says-eu-parliament/