security & surveillance

While offering vast opportunities for exercising and enhancing fundamental rights, the digital environment also offers both opportunities to commit new offences and to impose new restrictions on our online rights. Measures such as filtering, blocking and untargeted surveillance are often easy to implement and extremely difficult to rectify. EDRi therefore works to ensure that all security and surveillance measures are necessary, proportionate and implemented based on solid evidence.

20 Jul 2016

Copyfail #9: Digital Rights Management (DRM): Restricting lending and borrowing books and music in digital format

By Diego Naranjo

This article is the ninth in the series presenting Copyfails.

The EU is reforming its copyright rules. We want to introduce you to the main failures of the current copyright system, with suggestions on how to fix them. You can find all the Copyfails here.

How has it failed?

We are able to lend book to our friends, make photocopies of its pages, quote parts of the text, or sell our book to a second-hand bookshop. But with digital works like ebooks, CDs, or DVDs, users often face technical restrictions. You cannot lend your ebook to a friend (without lending your e-reader, too), or make a copy of your copy-protected DVD, not even for your own private use. Even if your government says you are allowed to, European and international law says companies are permitted to question it by using “Digital Rights Management” (DRM), software that limits copying.

DRM is a collection of systems used to protect copyright on electronic media, such as digital music and films, as well as computer software. It attempts to control the user’s ability to access, copy, transfer and convert material. Circumventing DRM technologies is forbidden in EU copyright law.

Given the fact that DRM is a blunt tool that does not take into consideration the legal freedoms to use copyrighted works for parody, citation, quotation, private copying and so on, not allowing the circumvention DRM means in practice giving away all those rights. DRM, as a rule, take all of those freedoms from you, in the name of stopping copyright violations.

copyfail_9_2

Why is this important?

If someone puts a lock on something you own, you are not the owner. DRMs are digital locks which are put on your devices without asking your opinion or permission to install them and, even worse, without giving you the key. Copyright experts widely agree that DRM systems don’t achieve their intended purpose; they are bad for society, businesses and artists.

Copyright is supposed to guarantee that artists and creators get paid for their work – that there are incentives to creativity. Copyright should not be used as an excuse to restrict our freedoms or access to knowledge and learning. DRM does not fix the problem it is supposed to fix – unauthorised copying and exchanging of ebooks, music, and videos – and it adds unnecessary restrictions on legally acquired content.

How to fix it?

fixcopyright-9

Read more:

Amazon Erases Orwell Books From Kindle (17.07.2009)
http://www.nytimes.com/2009/07/18/technology/companies/18amazon.html

DRM Frequently Asked Questions
https://www.defectivebydesign.org/faq

Electronic Frontier Foundation: DRM
https://www.eff.org/issues/drm

Amazon wipes customer’s Kindle and deletes account with no explanation (22.10.2012)
https://www.theguardian.com/money/2012/oct/22/amazon-wipes-customers-kindle-deletes-account

DRM.info
http://drm.info/what-is-drm.en.html

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19 Jul 2016

European Court confirms: Strict safeguards essential for data retention

By EDRi

Today, on 19 July 2016, the Advocate General (AG) Henrik Saugmandsgaard Øe of the Court of Justice of the European Union (CJEU) issued an Opinion on a case Tele2 Sverige AB v Post- och telestyrelsen (C-203/15) that deals with data retention obligations that were imposed by law on a Swedish telecom provider.

The Court was asked a set of questions related to the respect of European Union (EU) law, in the context of the data retention laws in Sweden and the UK. In the Opinion issued today, the AG re-stated principles that were previously established in the Digital Rights Ireland case. He also provided extensive further analysis of the legal context that national courts need to consider when they “rigorously verify that no other measure or combination of measures” can be as effective as the national data retention regime being proposed.

It is to be hoped that the final Court ruling will be respected by EU Member States. Sadly, since the Digital Rights Ireland case was decided in 2014, EU Member States have persisted in implementing or creating new legislation that wilfully ignores the principles previously established by the Court. The Advocate General made it unequivocally clear that all of the safeguards listed in the Digital Rights Ireland case must be respected by national laws.

It is time for EU Member States to start respecting the law. It is time for the European Commission to do its job to ensure that the law is respected,

said Joe McNamee, Executive Director of European Digital Rights.

How many times does the Court need to be asked the same question before EU Member States start listening? Data retention is an extreme measure which can only be implemented if the criteria repeatedly laid down by the Court are respected.

The European Commission should, at long last, start doing its job. So far, it has avoided taking a position on the numerous data retention laws in Europe that breach the principles that were established by the EU Charter of Fundamental Rights, clarified by the Court in 2014 and, today, re-stated by the Advocate General of the Court of Justice of the European Union.

Almost exactly a year ago, EDRi wrote to the European Commission Vice-President, Frans Timmermans, demanding action. In response, the Commission said that it would “monitor” thoroughly the data retention laws in the EU, but has so far avoided taking action. Time has run out for the Commission’s delaying tactics. It is now time – finally – to ensure that the law of the European Union is respected.

Read more:

Press Release from the CJEU on the Advocate General Opinion on the case (Case C-203/15) (19.07.2016)
http://curia.europa.eu/jcms/upload/docs/application/pdf/2016-07/cp160079en.pdf

European Commission will “monitor” existing EU data retention laws (29.07.2015)
https://edri.org/european-commission-will-monitor-existing-eu-data-retention-laws/

European Digital Rights asks the European Commission to investigate illegal data retention laws in the EU (02.07.2015)
https://edri.org/edri-asks-european-commission-investigate-illegal-data-retention-laws/

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18 Jul 2016

Citizens sent a clear and loud message: We want a free and open internet!

By Heini Järvinen

Keeping the internet free and open undoubtedly matters to Europeans: by the end of the public consultation on implementation of net neutrality rules, over half a million comments were sent following the SaveTheInternet.eu campaign.

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The comments have been sent to the Body of European Regulators of Electronic Communications (BEREC), which will now finalise the guidelines for the implementation of the Regulation that contains the rules on net neutrality. The guidelines will be published on 30 August 2016.

With a flood of messages supporting net neutrality, we expect the final guidelines to offer clear interpretations for how to deal with zero rating, specialised services and traffic management, and that the guidelines guarantee that we can keep enjoying the openness that has made the internet a huge economic and societal success story.

European Digital Rights and its SaveTheInternet.eu partners want to thank everyone who participated in this outstanding effort to show the regulators that we want to define ourselves – and not let companies do it – how our digital public space will look like in the future!

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Background:

This is the culmination of nearly three years of hard work:

  • Following the launch of the European Commission’s deeply flawed proposal in September 2013, EDRi and its partners worked hard to persuade the European Parliament to support net neutrality in April 2014.
  • We then undertook the difficult job of trying to influence the secretive “trilogue” discussions (from February to July 2015), where the Parliament sought to defend its position, against the strong opposition of both the European Commission and EU Council.
  • Ultimately, a deal was reached in July 2015 – producing that was far better than we could possibly have hoped. Efforts to close key loopholes in the Parliament’s final vote in November 2015
  • From November 2015 until today, we did everything possible, including a face-to-face meeting with BEREC, numerous one-to-one meetings with national regulators and preparation, launch and publicising the savetheinternet.eu platform.

For a complete history of this long and difficult campaign, see:

EDRi’s submission to BEREC’s consultation:

  1. Our policy analysis
  2. Our response to the consultation, which contains specific amendments to the draft guidelines.

A heart-felt thank you to all individuals and organisations that have supported these efforts.

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15 Jul 2016

Copyfail #8: Geo-blocking: Blocking access to cultural content online depending on your physical location

By Diego Naranjo

This article is the eighth in the series presenting Copyfails.

The EU is reforming its copyright rules. We want to introduce you to the main failures of the current copyright system, with suggestions on how to fix them. You can find all the Copyfails here.

How has it failed?

If I can watch a football match in Estonia, but not in Brussels, it is quite simply unfair.

– Andrus Ansip, European Commission Vice-President for the Digital Single Market at his European Parliament hearing

In an increasingly cosmopolitan Europe, where people travel a lot and move to other EU countries for work, citizens are finding barriers to the access to cultural goods, for example TV programs or news, that they were allowed to access online in their home country. 68% of content providers block users based on their geographical location. The European Commission has always claimed to promote the creation of a “Digital Single Market”, but the digital single market is no closer today than it was ten years ago!

Legislation related to “Intellectual Property” is different in the 28 EU Member States. Licensing of copyrighted content is based on national markets. This leads into a situation where access to cultural content is restricted within territorial lines. Broadcasters, film producers and other content providers do not have enough incentives to licence their content abroad, to allow citizens to access it everywhere. This fragmentation allows them to keep different prices in different EU countries.

copyfail_8

Why is this important?

The fragmentation of the EU copyright market greatly limits our choice for cultural content. It discriminates citizens based on their location, and undermines the credibility of the whole copyright system. To allow people to easily and legally access copyrighted contents, solutions like affordable streaming services which can be accessed equally across the EU are needed. Trying to draw geographical borders for digital content limits the opportunities to create new markets and services. For example, it took four years for Spotify to break into the market in thirteen EU countries after being available in the United States: Definitely not the best example of a functioning Digital Single Market for EU businesses, creators or citizens!

How to fix it?

fixcopyright-8

68% of digital content providers geo-block in the EU (21.03.2016)
https://torrentfreak.com/68-of-digital-content-providers-geo-block-in-the-eu-160321/

Extending the Sat Cab Model to the Internet (26.10.2015)
http://www.beuc.eu/publications/beuc-x-2016-005_report_extending_the_satcab_model_to_the_internet.pdf

European Commission: Geo – blocking practices in e – commerce (18.03.2016)
http://ec.europa.eu/competition/antitrust/ecommerce_swd_en.pdf

Ready to use your free Spotify UK account in France? (16.03.2016)
http://www.create.ac.uk/blog/2016/03/16/ready-to-use-your-free-spotify-uk-account-in-france/

Internet piracy falls to record lows amid rise of Spotify and Netflix
http://www.telegraph.co.uk/technology/2016/07/04/internet-piracy-falls-to-record-lows-amid-rise-of-spotify-and-ne/?platform=hootsuite

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13 Jul 2016

Study launch: The EU can achieve data protection-proof trade agreements

By EDRi

Today, on 13 July 2016, the University of Amsterdam’s Institute for Information Law (IViR) released a study on data protection and trade that BEUC, EDRi, CDD and TACD had commissioned. The purpose of the study was to have an independent assessment on the respect of privacy and data protection by trade agreements being negotiated by the European Union. Within this content, the study found flaws in the current approach and showed how trade agreements could be data protection- and privacy-proof.

DP_and_trade_sharepic

“It’s unacceptable that the EU’s privacy and data protection rules could be challenged through trade policy. Trade deals should not undermine consumers’ fundamental rights and their very trust in the online economy. We’re pleased to see this study clearly echoing the European Parliament’s call to keep rules on privacy and data protection out of trade agreements,” Monique Goyens, Director General of The European Consumer Organisation (BEUC), commented.

The EU has the responsibility to safeguard people’s rights to privacy and data protection in trade agreements. The European Union has done a great job at setting high standards for these fundamental rights. This study shows how to ensure these high standards can be maintained when trade agreements are negotiated,

said Joe McNamee, Executive Director of European Digital Rights (EDRi).

“The United States is aggressively pushing for a trade deal with the EU that would permit the unprecedented expansion of commercial data collection, threatening both consumers and citizens. America’s data giants, such as Google and Facebook, want the TTIP to serve as a digital `Trojan Horse’ that effectively sidesteps the EU’s human-rights-based data protection safeguards. This new study is a wake-up call for policy makers and the public: any trade deal must first protect our privacy and ensure consumer protection,” added Jeffrey Chester, Executive Director of Center for Digital Democracy (CDD).

“The EU’s opaque and inconsistent system of granting third countries so-called ‘adequacy’ status for transferring personal data of its citizens makes it vulnerable to legal challenge by trade partners. This is an important finding of this study, and particularly relevant in the week when the EU-US much-criticised Privacy Shield, is likely to be approved. The EU must not make some partners more equal than others when deciding on the adequacy of their data protection laws,” said Anna Fielder, Senior Policy Advisor of the Transatlantic Consumer Dialogue (TACD).

Read more:

Study “Trade and privacy – Difficult bedfellows? How to achieve data protection-proof free trade agreements”
https://edri.org/files/dp_and_trade_web.pdf

Factsheet detailing the study’s main recommendations
http://edri.org/files/dp_and_trade_factsheet_web.pdf

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12 Jul 2016

Algorithms – censorship à la carte?

By EDRi

On 17 June, the Counter Extremism Project (CEP) presented software designed to stop the proliferation of “extremist“ video and audio online. CEP is a non-profit organisation that states as its mission “combating extremist groups”. Of course, this algorithm alone can do nothing: To be operational, it needs a database of already identified “extremist” content. Humans have to define what “extremism” looks and sounds like – and they do not always agree on the definition. Therefore, human mistakes and bias become computer mistakes and bias.

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In principle, CEP’s algorithm is not groundbreaking: It is based on the PhotoDNA software, a widely-used tool to detect previously identifed child abuse online, developed by Microsoft. That was rolled out with the reassurance that it ONLY would be used to deal with universally illegal child abuse material and only in relation to Interpol’s “worst of the worst” list of images.

Large companies like Facebook and Microsoft use PhotoDNA to check uploads to their services, even private content of their “cloud” servers. PhotoDNA computes an individual signature of the media uploaded. This so-called hash is resistant to alterations in the image. If there is a match, the content can be flagged and removed. Microsoft makes user data associated with attempted uploads of such material available to law enforcement agencies. Nobody has ever seen fit to do a review to test if there is a real benefit from using the technology nor to ensure that its use is not counterproductive in some way.

This approach lends itself to content that is always illegal. Now that Somalia has ratified the Child Rights Convention, the USA is the only country in the world not to have ratified that instrument, and even the USA has ratified the Optional Protocol on Child Pornography. Legislators and courts have clearly defined what falls into this category and it cannot be legitimately quoted or re-used.. However, the definition of “extremist content” is everything but clear; CEP’s algorithm does not (and logically cannot) contain this definition either. Even if it were to use a database of previously identified material, that still would create problems for legitimate quotation, research and illustration purposes, as well as problems regarding varying laws from one jurisdiction to another.

Looking at the EU, the presentation of the algorithm comes at a politically opportune time: Together with Internet companies, the EU Commission is currently setting up a “Joint Referral Platform”. This de facto revival of the “Clean IT” <edri.org/rip-cleanit/> project aims to prevent the unnoticed re-upload of previously removed material through mandatory monitoring of every single file that every individual in Europe uploads to the Internet. According to the German Federal Government, the new platform will also rely on content recognition by robust hashing, as provided by the CEP.

The EU’s Joint Referral Platform has the potential build upon the arbitrary efforts of the European Police Office’s (Europol’s) “Internet Referral Unit” (IRU). This new Europol department actively checks platforms like Facebook and Twitter for content that is not illegal but potentially “incompatible” with those companies’ terms of service. It sends referrals to them so that they can “voluntarily consider” what to do with the content that has been objected to by a police agency. The Joint Referral Platform has the potential to automate Europol’s not-formal-censorship activities by an automatic detection of re-upload. However, it remains unclear whether any investigative measures will be taken apart from the referral – particularly as Europol’s activities, bizarrely, do not deal with illegal material. There is obviously no redress available for incorrectly identified and deleted content, as it is not the law but broad and unpredictable terms of service that are being used.

As long as the answers to these questions are missing, we leave it to the few “content moderators“ of social media platforms to enact their terms of service. As a professor of the history of technology Melvin Kranzberg rightly noted: “Technology is neither good nor bad; nor is it neutral.”

Is it really proportionate to scan/filter every single upload from every single European, to make sure it is legal? If Europe takes the lead in mass surveillance and filtering of their citizens’ uploads to the internet, what hope for the open and democratic internet elsewhere in the world?

Counter Extremism Project Unveils Technology to Combat Online Extremism (17.06.2016)
http://www.counterextremism.com/press/counter-extremism-project-unveils-technology-combat-online-extremism

There’s a new tool to take down terrorism images online. But social-media companies are wary of it. (21.06.2016)
https://www.washingtonpost.com/world/national-security/new-tool-to-take-down-terrorism-images-online-spurs-debate-on-what-constitutes-extremist-content/2016/06/20/0ca4f73a-3492-11e6-8758-d58e76e11b12_story.html

Europol: Non-transparent cooperation with IT companies (18.06.2016)
https://edri.org/europol-non-transparent-cooperation-with-it-companies/

(Contribution by Fabian Warislohner, EDRi intern)

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12 Jul 2016

Dutch parliament votes against internet filter

By Guest author

On 5 July 2016, the Dutch parliament voted against the introduction of an internet filter. Such a filter would be ineffective and would undermine trust in digital infrastructure.

The internet filter was proposed as part of new legislation to regulate online gambling in the Netherlands. Currently, online gambling is prohibited. Of course, this doesn’t deter people from placing bets on illegal websites. The proposed law not only legalises online gambling, but considerably expands the Dutch Gambling Authority’s enforcement powers.

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The proposed internet filter would have worked by manipulating certain types of traffic, most notably the Domain Name System (DNS) which is used for hostname to IP-address translation. Had the law been approved without change, internet providers would be forced by the government to render illegal gambling sites unreachable by interfering with users’ traffic – a practice we deem completely undesirable of others and normally label as criminal.

In a debate in the Dutch parliament last week, the undersecretary of the Ministry of Security and Justice recognised the fact that such a filter can be circumvented fairly easily. He also acknowledged the risk of function creep: a measure introduced for one particular goal sees over time an array of other applications. We know, for example, that the representatives of the entertainment industry, who have nothing to do with gambling, lobbied in favour of the filter. The government recognises these problems and did not object to the removal of the internet filter from the list of powers of the Gambling Authority, as proposed by the social-liberal political party D66.

D66 argued that the government should refrain from interfering with the core and key protocols of the internet. Users should be able to trust the network and were that trust to be undercut, it would impede on the users’ freedoms. The liberals of People’s Party for Freedom and Democracy (VVD) also supported the removal of the internet filter from the law, considering its limited effectiveness. The Dutch Gambling Authority still has quite a few other powers to intervene when necessary, such as taking down illegal gambling sites altogether and blocking financial transactions. D66’s amendment also gained support from the social democrats of the Labour Party (PvdA), the second member of the ruling coalition. A member of parliament said in an op-ed that “North Korean measures, such as internet filters, do not solve the problems surrounding gambling.”

This was confirmed by a leak of a draft Commission Communication on gambling in 2011 although, unsurprisingly, that confirmation was deleted before the final text of the Communication was published.

The Dutch EDRi member Bits of Freedom is pleased with the outcome of the voting. A reliable internet is not only of great importance to innovation and economic growth, but essential for the protection of our freedoms.

The article was originally published on https://www.bof.nl/2016/07/05/dutch-parliament-votes-against-internet-filter/.

Amendment proposed to remove internet filter (only in Dutch)
https://zoek.officielebekendmakingen.nl/kst-33996-29.pdf

EDRi: EC’s leak describes blocking as “challenging”, “costly” and ineffective (26.01.2011)
https://edri.org/edrigramnumber9-2blocking-commission-gambling/

(Contribution by Rejo Zenger, EDRi member Bits of Freedom, Netherlands)

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12 Jul 2016

Oversight of the new Europol regulation likely to remain superficial

By Guest author

On 1 May 2017, the new regulation on Europol will enter into force. The compromise agreed on during the trilogue procedure establishes more detailed provisions on oversight of the activities of Europol by the European Parliament.

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Article 88 (2), sentence 3 of the Treaty on the Functioning of the European Union provides for the national Parliaments to be more closely involved with this scrutiny. Article 51 of the regulation mentions the establishment of a Joint Parliamentary Scrutiny Group (JPSG). The European Parliament had lobbied hard during the trilogue procedure to achieve this. The Group is to consist of Members of the European Parliament (MEPs) and national Parliaments. Yet it is unclear how this will work in practice.

The JPSG will be set up by the national Parliaments together with the Civil Liberties, Justice and Home Affairs (LIBE) Committee of the European Parliament. A working group is to be established, made up of the Conference of Speakers. The group is to formulate a proposal which will be deliberated on in the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE) by autumn 2016, if possible. The responsible committees from the national Parliaments will then have an opportunity to comment on the draft. A final version is planned for mid-December. This final draft is then to be deliberated on further, and subsequently adopted by a Conference of Speakers.

Despite all of this activity, the new opportunities for parliamentary oversight and access to information provided for by the regulation are likely to remain superficial. The explicit intention is not to scrutinise Europol’s day-to-day work. The idea is merely to “politically monitor Europol’s activities”. This includes examining their impacts on “the fundamental rights and freedoms of natural persons”. If the Members of Parliament do indeed identify problems, they may draw up “summary conclusions” and submit them to the Parliaments.

Europol will also not be faced with any significant interference in the administration and organisation of its work. The JPSG will be able to participate in meetings of the Management Board, but only at the invitation of the latter. The Members of Parliament from the EU Member States and the European Parliament then have to take a back seat as non-voting observers. The degree of influence in selecting the Executive Director of Europol is equally insignificant. Before appointment, the candidate selected by the Council may be invited to appear before the LIBE Committee. Yet the decision on this invitation lies with the Council, and the Members of Parliament are also only entitled to give a non-binding opinion.

In practice, these new opportunities to exercise scrutiny are have little meaning. The JPSG also does not have any wider rights to gain information. Europol is supposed to transmit “relevant documents” including “threat assessments, strategic analyses and general situation reports”, as well as the results of studies and evaluations commissioned by Europol. However, this only applies to non-classified documents and thus continues a previous practice denying MEPs access to important information.

It would have been much more important to ensure more intense scrutiny of Europol’s operative work. This would apply, for example, to computer-assisted investigative techniques, which cannot be monitored by the national Parliaments. One example of this the fact that, although the German Federal Criminal Police Office helps Europol in procuring software for big data analysis, the Federal Ministry of the Interior refuses to provide any information on the functions of this software, since the national governments have no obligation to scrutinise the work of Europol. When MEPs ask the European Commission – which is responsible in this context – for details, these enquiries are often answered after expiry of the three-month deadline and even then they are answered extremely succinctly. .

It was thus not possible, for instance, to oversee the work of the new Internet Referral Unit (IRU) at Europol, which was decided on in April 2015 and set up in July 2016. By the time the Commission finally reacted to an enquiry about the IRU, it had already turned to other tasks, meaning that the answer was out of date.

The article was originally published at https://digit.site36.net/2016/06/29/new-europol-regulation-due-to-enter-into-force-from-may-2017-oversight-is-likely-to-remain-superficial/ and http://andrej-hunko.de/component/content/article/7-beitrag/3190-new-europol-regulation-due-to-enter-into-force-from-may-2017-oversight-is-likely-to-remain-superficial.

(Contribution by Matthias Monroy, Bürgerrechte & Polizei/CILIP, Germany)

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12 Jul 2016

UEFA: 1, Right to remix: 0 – Viral video gets blocked

By EDRi

The idea was so simple and yet so genius. After the dramatic Euro 2016 quarter finals between Italy and Germany, the web-artist Kurt Prödel had a wonderful idea: he created a 14-second video, which showed all penalties by the German team simultaneously. In the video, all players are running simultaneously towards the Italian goalkeeper who, himself, is replicated on the gal line, trying to defend his goal. The video clip spread quickly across social media and was even shown in German television – until it got blocked by the Union of European Football Associations (UEFA). This is yet another case that shows how outdated and ill-suited to modern media culture the current European copyright regime really is.

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The UEFA is the rights holder of the images that were used to create this short video, and for which no permission for reproduction was granted. UEFA requested that the video was taken down on major sharing platforms (such as YouTube or Facebook) alleging a copyright infringement. Twitter temporarily blocked the whole account of the video-artist. The purpose of copyright is to protect the legitimate interests of creators and rights holders to exploit their works. Blocking the account of an artist for remixing images which do not affect UEFA’s earnings could be seen as overreacting.

In the United States the video would most likely fall under the so-called “fair use” exemption (although UEFA would probably still have used YouTube’s ContentID to remove it anyway). This exemption allows the re-use of small parts of a work, without the explicit permission of the rights holders, as long as the outcome is a “new” work. The idea is that copyright laws should not impede the creation of new works which do not compromise the exploitation of an original work. The European copyright framework does not contain such a general exception.

This year, the German Constitutional Court ruled that the artistic freedom prevails over the copyright in the case of “sampling” or “remixing” (re-using excerpts of sound recordings in a piece). The German Court recognised this “right to remix” as an essential part of modern media culture, which needs to be protected from excessive claims of right holders. This notion seems to be missing in the current EU copyright framework.

Online service providers such as Youtube or Facebook are continuously confronted with requests to take down content from their platforms because of alleged copyright infringements. These platforms are facing claims that are usually difficult (and costly) to verify and generally use automatic systems to make decisions (such as ContentID). In order to avoid legal liability, even perfectly legal content is often taken down. In the worst misuses of the system, this has been proven to be used as a tool for censorship.

The blocking of the penalty shot video reveals the need to reform European copyright in order to provide legal certainty for creators and rights holders. The only way to achieve this certainty and to foster modern media culture is to harmonise copyright law across the EU, and include the “right to remix” among the mandatory exceptions to copyright protection.

Ironically, German Minister Heiko Maas also enjoyed the video and tweeted a link to it, before it was taken down. The Minister is best known internationally as a politician who thinks that internet companies should become more involved in online content regulation. Maybe he understands the issue a little better now. Maybe.

Article 5 of the Directive 2001/29/EC provides a definite list of exemptions to copyright and related rights. The Directive would have to be changed accordingly to include a right to remix.
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001L0029:EN:HTML

§ 24 of the German Urheberrechtsgesetz regulates the free use in copyright law
http://www.gesetze-im-internet.de/urhg/__24.html

EDRi: Copyfail #1: Chaotic system of freedoms to use copyrighted works in the EU (19.05.2016)
https://edri.org/copyfail-1/

The ruling of the German Constitutional Court (31.05.2016)
http://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/2016/05/rs20160531_1bvr158513.html

Blocking of Euro-meme by UEFA: in case of doubt, decide against artistic freedom (06.07.2016)
https://netzpolitik.org/2016/sperrung-von-euro-meme-durch-die-uefa-im-zweifel-gegen-die-kunstfreiheit/

Copyright Law as a Tool for State Censorship of the Internet (03.12.2014)
https://www.eff.org/deeplinks/2014/12/copyright-law-tool-state-internet-censorship

(Contribution by Claudius Determann, EDRi intern)

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12 Jul 2016

Telcos & Commission attack net neutrality and BEREC’s independence

By Maryant Fernández Pérez

On 7 July 2016, the European Commissioner for Digital Economy and Society Günther H. Oettinger welcomed an attack on net neutrality and the independence of the European Telecom Regulators (BEREC).

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Seventeen operators have made an anti-net neutrality statement called the “5G Manifesto” that one can even find on the European Commission’s website. Among other things, the manifesto criticises BEREC’s draft guidelines for creating (unspecified) uncertainties for investment. The rather hysterical statement even threatens the regulators with a delay in investment unless they “take a positive stance on innovation and stick to it.” This demand is mirrored in some of the almost comically biased questions in the 5G networks “consultation” launched by the European Commission.

Even more worrying than the content of the manifesto is the endorsement it has received from the European Commission and, in particular, from the European Commissioner for Digital economy and Society Günther H. Oettinger. In fact, the Commission has promoted the anti-net neutrality declaration not only once, but at least three times on the European Commission’s website (see here, here and here). In addition, the Commissioner applauded these companies in social media. Does this mean that the Commission is “very much” welcoming an attack against net neutrality, the law and the regulators’ independence?

Contrary to what the 5G Manifesto suggests, BEREC’s draft guidelines interpret the EU Regulation in places where the law is unclear or silent. The purpose of this work is to enable the implementation of the law in a consistent way in all Member States. BEREC cannot rewrite or contradict the law — the Regulation is the law that the European Commission had previously supported (and, officially, still does). By asking BEREC to depart from the principles and rules established in the law, the European Commission is actively undermining BEREC’s independence. As the EU’s Framework Directive on electronic communications correctly establishes, “[t]he independence of the national regulatory authorities should be strengthened in order to ensure a more effective application of the regulatory framework and to increase their authority and the predictability of their decisions”.

Citizens around the world can help preventing industry lobbying takes over the European Commission and the telecoms regulators’ independence by resorting to https://savetheinternet.eu.

EDRi press release: Net neutrality – last call for responses to Europe’s biggest ever telecoms consultation (11.07.2016)
https://edri.org/net-neutrality-last-call/

EDRi’s response to the 5G networks consultation (11.07.2016)
https://edri.org/files/netneutrality/consultation_5gopportunities_edriresponse.pdf

Vital support from industry for the EU 5G action plan (07.07.2016)
https://ec.europa.eu/commission/2014-2019/oettinger/blog/vital-support-industry-eu-5g-action-plan_en

Commissioner Oettinger welcomes 5G Manifesto (07.07.2016)
https://ec.europa.eu/digital-single-market/en/news/commissioner-oettinger-welcomes-5g-manifesto

Commissioner Oettinger discusses industry recommendations on 5G (07.07.2016)
http://europa.eu/rapid/press-release_MEX-16-2447_en.htm

Bringing down barriers in the Digital Single Market: No roaming charges as of June 2017 (27.10.2015)
http://europa.eu/rapid/press-release_IP-15-5927_en.htm

Framework Directive on electronic communications (25.11.2009)
http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32009L0140

(Contribution by Maryant Fernández Pérez, EDRi)

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