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The Privacy Advisor | How a new EU copyright law could weaken privacy and free speech Related reading: Website accused of posting obituaries without consent

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Earlier this month, the European Parliament gave its approval to the latest version of the EU Copyright Directive, an update to the 2001 law of the same name. The directive was first formally proposed by the European Commission a couple years back, and now it's entering its final stages, with parliamentary approval opening the way for "trilogue" negotiations between member states and the EU institutions.

To put it mildly, a lot of people are very unhappy with the text that's going to trilogue. Two articles in particular are raising hackles among the digital rights community: Article 11, which would allow press publishers to charge fees for the reproduction of even small snippets of text; and the part that that concerns us here, Article 13, which covers the use of copyrighted content by online content sharing services.

From the perspective of the rights-holders, Article 13 will stop the likes of Google getting rich off the works of creators who don't get paid enough. From the side of the digital rights community and more than a million signatories of an online petition — and tech luminaries such as Tim Berners-Lee and Jimmy Wales — it's a step onto a slippery slope that will lead to widespread privacy and free-expression infringements by overturning a key defense against the mass surveillance of people's online activities in the EU.

So, who's right?

The first thing to note about Article 13 is that it has necessarily evolved over recent months. The vote that cleared the text Sept. 12 was only needed because the European Parliament rejected an earlier version in July. The nixed version had mandated the use by online platforms of "measures" to ensure that people don't upload copyrighted content without clearance.

This is what the digital rights lobby called "upload filters" — essentially, systems such as YouTube's extremely expensive Content ID, that automatically seeks out matches between uploaded files and those registered on the system by rights-holders. As those tech luminaries put it, such systems amount to "automated infrastructure for monitoring and censorship."

After the July rejection, the directive's rapporteur, the German conservative Axel Voss, made some tweaks. Gone was the explicit insistence on upload filters, but the result left online services with full liability for copyright infringements that take place on their platforms.

"We do not oblige platforms to take measures anymore; now we say it's an obligation to license," Voss told The Privacy Advisor. "Platforms and rights-holders shall now find practicable solutions how to avoid copyright infringements."

A major issue with upload filters was always their clash with another crucial piece of EU law, the eCommerce Directive of 2000, Article 15 of which explicitly forbids member states from imposing "a general obligation on providers … to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity."

This creates a safe harbor for platforms, but it also aids freedom of speech and stops EU countries from forcing privately held platforms to entrench surveillance mechanisms. And Article 13's advocates claim the latest text of the new Copyright Directive leaves people's rights under the eCommerce Directive unharmed.

"To ensure licensing agreements can work, no general filtering or monitoring of personal data is allowed," said Helen Smith, the executive chair of the independent music industry lobbying organization Impala. "This is simply about matching works that are already identified and tracking how they are used, so that the right creators get paid. In the case of music, most platforms already cross-check the data provided by rights-holders, and the proposal will not change that. The text actually prevents platforms from taking down material which is not infringing or which benefits from an exception."

However, the other side is far from convinced. Julia Reda, the sole Pirate member of the European Parliament — whose official report into the modernization of the 2001 directive was well-received but largely ignored — sees the new proposal as the "beginning of the end of the eCommerce safe harbor," with implications that could reach far beyond the realm of copyright.

Reda told The Privacy Advisor that, because the new directive says every online content sharing platform actively performs "an act of communication to the public," it loses the protections afforded to it under the longstanding mere conduit defense.

"The [Copyright Directive's] definition of an online content sharing service provider bears little resemblance to the definition of an active role established by the Court of Justice of the EU, which has always required an element of knowledge of illegal activity happening on a platform in order for that platform to be considered as playing an active role," she said. "This re-definition of the concept of an active role is extremely far-reaching, because the eCommerce Directive does not just apply to copyright infringement, but to any kind of illegal activity.

"If the Parliament text became law, that would mean that any platform with an annual turnover of over €10 million [$11.8 million], that in any way optimizes and promotes user uploads for profit, would be considered responsible for absolutely all illegal activities by its users, including but not limited to copyright law," Reda added. "Obviously, since illegal activity cannot be prevented with absolute certainty, it would not be possible to legally run such a platform in the EU any more. Each user upload would need to undergo a thorough legality check before being made available online, which is an impossible feat for even the largest companies."

Regarding Reda's last point there, the lobby against Article 13 has long pointed out that even YouTube's Content ID is an unreliable system that tends to overreach. Two well-publicized examples occurred just this year: a video of white noise that elicited five copyright claims, and the experience of the pianist James Rhodes, who felt YouTube and Sony's wrath over his recording of long-out-of-copyright Bach piece.

Article 13's advocates, however, claim it will make life easier for users of online platforms, if not for the platforms themselves. U.K. Music, another rights-holder lobbying group, said in a statement that while the onus is currently on users to obtain licenses for their uploads, "Article 13 would address this by requiring platforms to obtain licenses which should also cover, to the same extent and scope, the liability of users when they are acting in a non-commercial capacity.

"It will mean individual users will no longer need to get licences when using these platforms nor are they in danger of infringing rights if they do not," the organization said.

Paul Bernal, a senior law lecturer at the University of East Anglia, said the content industry may be happy with Article 13, but there is "almost universal dislike" among the tech and internet communities. "This is a disaster waiting to happen, from a practical perspective," he said. "Though the words ‘upload filter’ do not now appear in the directive, I haven’t yet seen any credible alternative way to do what is being asked. The proponents of the article certainly haven’t offered one."

Bernal said there was a risk of over-blocking that could end up hurting "smaller creators," particularly as the appeals process is as yet unclear, and the system could potentially be open to gaming by a new generation of copyright trolls.

"And yes, this looks almost inevitably to come into tension or conflict with the eCommerce Directive protections. At the very least I expect some legal fights," he added. "That such fights will happen for something that will be highly unlikely to actually have any impact on those who seriously breach copyright — the big pirates will easily find ways around this, as they always have — seems almost tragic.  It’s a classic example of ill-conceived law which will be counterproductive at best."

There's clearly a big fight still to be had over Article 13 and other contentious parts of the Copyright Directive. Unfortunately, trilogue negotiations take place behind closed doors, so it will be hard to see how the two sides' lobbying plays out among member states. But then the result comes back to one more plenary vote at the European Parliament, most likely next Spring. Expect to see a lot more campaigning on this front.

photo credit: Visual Content Internet Law via photopin (license)

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