By Bits of Freedom

All EU Member States are obliged to implement the newly adopted EU Copyright Directive, including its controversial Article 17. But how to interpret it, is up to them. In the Netherlands, there is currently a draft bill, which is unfortunately very disappointing. The government really needs to try much harder to protect the interests of internet users.

What was that again, Article 17 (or 13)?

Article 17 (formerly Article 13) includes a provision that makes platforms directly responsible for the copyright infringement from content that users upload to those services. It does not solve the problem it’s supposed to solve, but it does limit the freedom of internet users tremendously. It will oblige online companies such as Google and SoundCloud to scan and approve everything their users upload. This will likely lead to those companies, in order to avoid legal liability, to refuse many uploads in advance.

The Netherlands found European rules harmful

The Dutch government was crystal clear in the debate that took place at the European level prior to the adoption of the Directive: these rules do more harm than good. In 2017, the Netherlands asked the lawyers of the European Commission critical questions about the legal sustainability of the proposal for the Directive. Much later in the process, the Netherlands voted against the text that was to serve as a basis start of the negotiations of the Member States with the Commission and Parliament. Later again, the Dutch permanent representation stated that the adopted proposal “does not strike the right balance between the protection of right holders and the interests of EU citizens and companies”.

From European to Dutch rules

Since this is a Directive, all Member States must incorporate the rules into national legislation. Now that the Directive has been adopted, and introducing chances at the European level is no more possible, transposition to national laws is the place to limit the damage. In other words: with a minimal transposition the rights of the internet user are protected to the maximum extent. If the Netherlands was so critical of the Directive, you would expect it to also do its utmost to try to limit as much as possible the damage it will cause in the transposition into national legislation. But, unfortunately…

On 2 July 2019, the Dutch Ministry of Justice and Security published a draft bill for this transposition. That proposal is disappointing in its lack of ambition to protect the interests of the internet users It does not limit the harm by providing an adequate limited implementation of Article 17, as it could, and it does not force that the guarantees for users provided in the Directive are properly explained.

A more ambitious proposal is desperately needed

EDRi member Bits of Freedom strongly urges the Dutch government to come up with a more ambitious bill. A transposition in which the damage of the Directive is limited as much as possible and the rights of the internet users are protected as much as possible. Because this is a particularly complex legal matter, Bits of Freedom also recommends that, prior to the drafting of the bill, an investigation be carried out into the scope that a Member State has to limit the damage of the Directive. This research could be carried out by academics with expertise in the field of copyright.

The Netherlands must do better

In short, the Netherlands must do better. The fact that the Directive has been adopted does not mean that the battle is lost. There’s still a lot that can be done to limit its potential negative impacts. Here, too, hard work pays off: you reap what you sow.

Bits of Freedom

Come on government, stand up for us! (only in Dutch, 29.08.2019)

Come on government, stand up for us! (11.09.2019)

Bits of Freedom’s advice to the Dutch government (only in Dutch, 26.08.2019)

Does #article13 protect users against unjustified content blockages? (only in Dutch, 25.03.2019)

Bill of Implementation Directive Copyright in the Digital Single Market (only in Dutch)

NGOs call to ensure fundamental rights in copyright implementation (20.05.2019)

(Contribution by Rejo Zenger, EDRi member Bits of Freedom; translation from Dutch to English by Bits of Freedom volunteers Celeste Vervoort and Martin van Veen)