By Joe McNamee

A leaked European Parliament document exposes some of the most bizarre suggestions yet in the debates around the proposed new copyright rules in Europe.

The proposal for the Copyright Directive is currently being debated in various European Parliament Committees. The leaked document shows that conservative, socialist and Green Members of the European Parliament (MEPs) in the Committee on Culture and Education (CULT) have agreed to “compromise amendment”* that would ban legal uses of legally acquired copyrighted material. They would also require the implementation of upload filter, which would remove uploads identified as copyrighted material – memes for example. The vote takes place on 11 July.

The European Commission put together the proposal for the new Copyright Directive without paying attention to the feedback from citizens. The proposal fails to make any effort to tackle the main problems of the current copyright framework. Faced with this failure, the CULT Committee has managed to make a bad proposal significantly worse.

Under the CULT “compromise amendments”, it would no longer be possible to store legally acquired music recordings video files or any other copyrighted content on European cloud storage services. This is despite the fact that Europeans already pay hundreds of millions every year in levies (3,2 billion euro in the first half of this decade) to compensate rightsholders for making copies of legally obtained copyrighted works. Despite this, European cloud services would have to install filters to either block uploads or pay “fair” licenses for any copyrighted material that was uploaded. (Non-European services, on the contrary, would have nothing to worry about.)

Even more bizarre, the CULT Committee appears to have decided that the fight against private copies of legally obtained copyrighted material is more serious than the fight against terrorism. In April 2017, it adopted an amendment to the Audiovisual Media Services Directive (AMSVD) to prohibit the use of upload filtering as a method of restricting hate speech and terrorist content including “for the most harmful content”. The new compromise amendment to the Copyright Directive would require filtering of any uploads to the internet in Europe just for the purpose of protecting copyright, including protecting copyright holders from people using legally obtained, fully authorised content.

If it adopts this amendment, the Committee will seriously contradict itself, and give a distorted image of the values it supports. It would explicitly support an illegal, ineffective measure (upload filtering) for the benefit of the copyright industry that it has rejected as a proportionate measure to protect citizens “from the most harmful content” (Amendment 75 to the AVMS Directive). A true values gap.

The good news is that the text that will be adopted is not just morally unacceptable, it is logically and legally incompetent. Among the most absurd suggestions are:

  1. The Members of the European Parliament (MEPs) have agreed an explanatory note (“recital”), which states that the filters should not process any personal information, but also that there should be an appeals mechanism. Logically, if providers store no information about who uploaded the content they have removed, they have no way of allowing those unknown people to appeal.
  2. The Court of Justice of the European Union (CJEU) has previously interpreted that the existing EU law prohibits installing of similar filtering systems. The filtering system in that case (Netlog/Sabam C-360/10) was the same type that is currently being proposed. What is being proposed is manifestly and obviously illegal, according to the case law from the European Union’s highest court.
  3. The proposed text literally says allowing users to store data goes beyond “the mere provision of physical facilities” and is “performing an act of communication to the public”.

Ironically, one of the reasons why the CJEU ruled against filtering was the risk of legal material being deleted by accident. Rather than addressing that point, CULT goes even further, and suggests restricting even more legal activities.

In the Audiovisual Media Services Directive, the following MEPs voted for the final text, opposing upload filters the “most harmful content”, such as for terrorism and incitement to violence:

  • EPP: Andrea Boct Erdős (Hungary), Svetoslav Malinov (Bulgaria), Stefano Maullu (Italy), Michaela Šojdrová (Czech Republic), Sabine Verheyen (Germany), Theodoros Zagorakis (Greece), Bogdan Andrzej Zdrojewski (Poland), Milan Zver (Slovenia)
  • S&D: Elena Gentile (Italy), Giorgos Grammatikakis (Greece), Petra Kammerevert (Germany), Dietmar Köster (Germanh), Krystyna Łybacka (Poland), Momchil Nekov (Bulgaria)
  • Greens: Jill Evans (UK), Helga Trüpel (Germany)

It will be interesting to see how many of these MEPs vote in favour of upload filters for copyright.

A full list of MEPs on the CULT Committee can be found here:
http://www.europarl.europa.eu/committees/en/cult/members.html

CULT Compromise Amendments (Article 13)
https://edri.org/files/copyright/CULT_COMPArt_13-V3.pdf

CULT Compromise Amendments (recitals linked to Article 13)
https://edri.org/files/copyright/CULT_COMPArt_13_recitals-V3.pdf

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

Copyfails: Time to #fixcopyright!
https://edri.org/copyfails/

Proposed Copyright Directive – Commissioner confirms it is illegal (28.06.2017)
https://edri.org/proposed-copyright-directive-commissioner-confirms-it-is-illegal/

EU Copyright Directive – privatised censorship and filtering of free speech (10.11.2016)
https://edri.org/eu-copyright-directive-privatised-censorship-and-filtering-of-free-speech/

Deconstructing Article 13 of the Copyright proposal of the European Commission
https://edri.org/files/copyright/copyright_proposal_article13.pdf

Video: Why is the EU Commission pushing for illegal copyright filtering?
https://youtu.be/zROqxBFqe_k

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* Europe’s only democratically elected institution prefers to negotiate such agreements behind closed doors and not publish them until immediately before the vote. We cannot be certain, therefore, that this is the definitive version, even though this is what we have been led to believe.