Earlier this week we explained how the tide is turning against the European Commission's
proposal for Internet platforms to adopt new compulsory copyright filters as part of its upcoming Directive on Copyright in the Digital Single Market. As we explained, users and even the European Parliament's Committee on the Internal Market and Consumer
Protection (IMCO) have criticized the Commission's proposal, which could stifle online expression, hinder competition, and suppress legal uses of copyrighted content, like creating and sharing Internet memes .
Since then, a leaked
report has revealed that one of the European Parliament's most influential committees has also come out against the proposal . As
the IMCO committee's report had done, the report of the European
Parliament's Legal Affairs (JURI) Committee not only criticizes the upload filtering proposal (aka. Article 13, or the #censorshipmachine), but renders even harsher judgment on a separate proposal to require online news aggregators to pay copyright-like
licensing fees to the publishers they link to (aka. Article 11, or the link tax ). We'll take
these one at a time.
JURI Committee Scales Back the EU's Censorship Machine
The JURI committee would maintain the requirement for copyright holders to "take appropriate and proportionate
measures to ensure the functioning of agreements concluded with rightsholders for the use of their works." But the committee rejects the proposed requirement for automatic blocking or deletion of uploaded content, because it fails to take account of
the limitations and exceptions to copyright that Europe recognizes, such as the right of quotation. The committee writes in an Explanatory Statement:
The process cannot underestimate the effects of the identification
of user uploaded content which falls within an exception or limitation to copyright. To ensure the continued use of such exceptions and limitations, which are based on public interest concerns, communication between users and rightsholders also needs to
be efficient.
The committee also affirms that the agreements between rightsholders and platforms don't detract from the safe harbor protection for platforms that Europe's E-Commerce Directive already provides (which
is analogous to the DMCA safe harbor in the U.S.). This means that if user-uploaded content appears on a platform without a license from the copyright holder, the platform's only obligation is to remove that content on receipt of a request by the
copyright holder.
We would have liked to see a stronger denunciation of the mandate for Internet platforms to enter into licensing agreements with copyright holders, and we maintain that the provision is better deleted altogether.
Nonetheless, the committee's report, if reflected in the final text, should rule out the worst-case scenario of platforms being required to automatically flag and censor copyright material as it is uploaded.Â
European Link Tax
Faces its Toughest Odds Ever
The leaked report goes further in its response to the link tax, recommending that it be dropped from the new copyright directive altogether. Given the failure of smaller scale link tax schemes in
Germany and Spain , this was the only sensible position for the committee to take. The Explanatory Statement to the report correctly distinguishes between two separate aspects of the use of news reporting online that the Commission's original proposal
incorrectly conflates:
Digitalisation makes it easier for content found in press publications to be copied or taken. Digitalisation also facilitates access to news and press by providing digital users a referencing or
indexing system that leads them to a wide range of news and press. Both processes need to be recognised as separate processes.
Instead of introducing new monopoly rights for publishers, the JURI committee suggests
simplifying the process by which publishers can take copyright infringement action in the names of the journalists whose work is appropriated. This would address the core problem of full news reports being republished without permission, but without
creating new rights over mere snippets of news that accompany links to their original sources. Far from being a problem, this use is actually beneficial for news organizations.
The JURI committee report is just a recommendation
for the amendment of the European Commission proposal, and it will still be some months before we learn whether these recommendations will be reflected in the final compromise text. Nonetheless, it is heartening to see the extreme proposals of the
Commission getting chiseled away by one of the Parliament's most influential committees.
The importance of this shouldn't be underestimated. Although the above proposals are limited to Europe at present, there is the very real
prospect that, if they succeed, they will pop up in the United States as well. In fact, U.S. content industry groups are already advocating for the adoption of an upload filtering proposal stateside. That's why it's vital not only for Europeans to speak
out against these dangerous proposals, but also for Internet users around the world to stand on guard, and to be ready to fight back.
