By Joe McNamee

On 27 April, a two-hour discussion was held on the Copyright Directive in the Council of the European Union. The meeting discussed text and data mining, restrictions on quoting from and linking to news articles and the infamous “censorship machine” – mandatory upload filters for European web hosting companies. No deal was reached and new discussions will happen on 4 May.

At the meeting, France, Spain and Portugal (joined by Italy this time) once again tabled extreme measures that would restrict freedom of expression, undermine the ability of European Internet companies to conduct a business, and create huge collateral damage for fundamental rights worldwide. France, Spain and Portugal previously tabled a similar lobbyist-driven proposal in October 2017.

This time, the suggestions include:

Article 2.5 and recital 37a

  • Broadening the scope of the companies covered by the proposals in the Directive to any company whose main activity is to provide hosting of web content, regardless of profit motive. The proposal leaves intact the chaotic approach of excluding certain (badly defined) services, such as “not-for-profit open source software developing platforms” which attempts – but fails – to exclude services like Github.
  • Broadening the scope of the companies covered by the proposals in the Directive by removing a proposed limitation to only cover companies with a profit motive and, again, specifying that certain badly-defined services can be exempted if their activity is not “for profit making purposes”.

Rationale: Ironically, the countries justify this new, chaotic, language on the basis that it “creates legal certainty”.

Article 13.4

As a rather hilarious concession, the Member States suggest that services that impose upload filtering cannot be subject to criminal sanctions (or damages). In short, if European companies:

  • implement upload filters
  • implement a “notice and takedown” system, which also prevents future uploads and
  • ensure that all measures have been “agreed upon by rightsholders,”

…then (and only then) can they be protected from the legal chaos that the Directive creates.

A remarkable compromise, indeed.

Article 13.5

Here, the four countries propose an incomprehensible obligation to “take into account” the nature and size of the rightsholders that need to agree to the “effective and proportionate” measures that internet service providers are required to implement.

Article 13.8

Member States are encouraged to establish the “necessary mechanisms” to assess the appropriateness (but not proportionality) of the measures being implemented by the companies. In short, once the internet companies have finished agreeing with big and small rightsholders about the upload filtering technologies that European providers will need to pay for and implement, in order to filter out audio, audiovisual, visual and text works and other subject matter, those technologies should then also be subject to review by Member States.

Leak: Three EU countries join forces for restrictions & copyright chaos (26.10.2017)
https://edri.org/leak-three-eu-countries-join-forces-to-stamp-out-free-speech-online/

Copyright reform: Document pool
https://edri.org/copyright-reform-document-pool/

Copyright reform: State of play (10.01.2018)
https://edri.org/copyright-reform-state-play/

(Contribution by Joe McNamee, EDRi)

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