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Copyright Week 2019: Copyright as a tool of censorship

By EDRi · January 15, 2019

EDRi member Electronic Frontier Foundation’s Copyright Week is running again from 14 until 20 January 2019. We are participating in the action week with a series of blogposts.

Copyright as a Tool of Censorship

Copyright, when implemented in a human rights compliant way, can be useful to contribute to the wealth of creators, so that they can continue participating in arts and sciences in our societies. To allow for cultural innovation and societal debates, it’s a well-established principle that re-adapting and re-purposing copyrighted material should be allowed in cases of so-called “exceptions”, such as fair comment, reporting, teaching, criticism, satire and parody. Unfortunately, there are too many ways to implement these exceptions in Europe, and it is impossible for the average citizen and most companies to decipher what use is allowed where.

There are frequent clashes of those who seek more restrictive rules to protect copyrighted works and those who fear such rules would limit citizens’ freedom of expression and specifically their right to access to culture. Because assessing which kind of uses are allowed often takes a careful, context-sensitive balancing act, any legislation aiming to enforce the rights of copyright holders needs to have robust and comprehensive provisions on how this balancing will be found and implemented. The balance tipping too much into the direction of restrictions potentially results in censorship – which then can be abused for instance to silence political opponents or to try to deny access to public documents.

This recurring tension between fundamental rights, with protection of intellectual property on the one side and freedom of expression and information on the other side, is exponentially exacerbated when it no longer relies on human judiciaries to verify or dismiss an allegation of infringement, but on technological solutions that pre-emptively filter out anything that matches a pattern stored in the algorithm’s database. The EU has taken an extremely controversial stance on enforcing copyright through such automated means (“upload filters”). The dangers that relying on this technology poses for the freedom of expression have been repeatedly highlighted by civil society, library, academic, business and consumer protection organisations. Even the United Nations Special Rapporteur on freedom of expression, David Kaye, has pointed out serious concerns on the Article 13 provisions of the planned Copyright Directive. The problem is: If algorithms are blatantly failing at recognising the fairly straightforward exceptions to a given policy (consider, for instance, blog hosting service’s tumblr takedowns of its own examples of acceptable nudity), how can we expect them to recognise the subtleties of parody and satire?

Copyright tilts towards censorship when it 1) does not provide for necessary exceptions and limitations, 2) reverses the burden of proof for an infringement and 3) creates direct or indirect measures of pre-emptive removal. The EU Copyright Directive, unfortunately, so far fulfils the latter two of those criteria, and the ongoing trilogues between the European Parliament and the Council of the EU do not raise high hopes that these shortcomings will be fixed in due time. Currently, it provides yet for another example of how the struggle to achieve fair remuneration for artists in the digital age can cause huge repercussions for the internet society as a whole. The copyright censorship to come might be less maliciously intentional than previous examples such as Ecuadorian president Correa’s misconduct, but “accidental” or “collateral damage” types of (automated) over-blocking will nevertheless prove to be detrimental tools of censorship.

Policy-makers world-wide should take the negligent EU copyright debate as a point of departure to explore flexible approaches to copyright that safeguard the fundamental rights and freedoms of citizens, and reject the dangerous trends of blind trust in technology and pre-emptive enforcement.

Copyright: Compulsory filtering instead of obligatory filtering – a compromise? (04.09.2018)

How the EU copyright proposal will hurt the web and Wikipedia (02.07;2018)

EU Censorship Machine: Legislation as propaganda? (11.06.2018)

(Contribution by Yannic Blaschke, EDRi intern)