Wednesday, 22 November 2017

LIBE Opinion on Copyright in the DSM: Putting boundaries on the Censorship Filter

Following the CULT and IMCO Opinions (see our blog posts respectively here and here) and the Report by the lead Committee of the EP on this matter, namely the Legal Affairs (JURI) Committee (see our blog post here), the last Opinion of the EP has now been published, namely the one by rapporteur Michal Boni of the Committee on Civil Liberties, Justice and Home Affairs (LIBE).

As often happens when a report is published last, it builds on all the views that are out there and, in the case of MEP Boni, tries to offer a pragmatic middle ground. In this case, the LIBE Rapporteur has limited himself to examining Article 13, aka the Censorship filter, as he considers this is a provision that needs to be looked at in light of its impact on the fundamental rights of users.

A lot of positive thoughts…though deletion would have been the best option

The Opinion clearly tries to ensure that the provisions of Article 13 do not disrupt the existing legal framework and established CJEU case law, whilst taking a technologically neutral approach and making sure users are not forgotten in this equation:

  • The reference to specific technologies such as’content recognition technologies’ is removed (AM9).
  • The upholding of the principles of the E-commerce Directive (and especially of Art 15 ECD which prohibits general monitoring obligations) and the need for measures adopted by companies to respect the fundamental rights of users is clearly set out (AM3 & 9).
  • The need for Member States to ensure users have access to a court or another competent authority (AM12), combined with the responsibility of rightholders in case of counter claims is also explicitly stated (AM4). After all, if they are the one claiming rights over content, they are the only ones capable of responding to such a counter claim, not the guy in the middle.
  • The involvement of user representatives in the definition of best practices to implement this provision is also welcome, as it counter balances the industrial interests of the rightholders and online platforms (AM13).

Room for improvement…especially considering deletion would have been the best option

But as always in the legal drafting arena, the devil is in the detail:

  • The scope of application of the censorship filter, whilst more limited than in many other proposals, still comprises an incoherency in its drafting:
    • Indeed, Article 13 is now set to apply to the situation ‘Where information society service providers offer users content storage services and provide the public with access to content’. There is however no link established between the storage of content and the content to which access is provided.
    • This is however easily remedied by adding one small word, namely: ‘Where information society service providers offer users content storage services and provide the public with access to such content’.
  • Whilst reminders of the respect of fundamental rights of users never hurt, it must be noted however that the Charter of Fundamental Rights imposes obligations on Member States, not on private entities such as online platforms. As these voluntary agreements fall in the private space, the ‘respecting fundamental rights’ element could prove to be wishful thinking or a carrot with no stick.

Conclusion: Hell is paved with good intentions

Whilst it is clear that MEP Boni has, in the same vein as his colleague MEP Comodini Cachia, tried to bring back some common sense in this debate, it is a bit disappointing that the one Committee of the EP tasked with protecting the fundamental rights of users has not taken the only stance that makes sense from a principles point of view, which is to request the deletion of this ill-thought provision.

In our May 2017 open letter [PDF] to the Council and the European Parliament, C4C and 63 signatories reiterated this fact: ‘Article 13 should be removed from the copyright negotiations and dealt with in appropriate contexts. We strenuously oppose such ill thought through experimentation with intermediary liability, which will hinder innovation and competition and will reduce the opportunities available to all European businesses and citizens.’

But at least the intentions of MEP Boni are laudable, as are his efforts to remove the most toxic aspects of what the European Commission had put on the table. So for that, our thanks!

[Ed. note: This blog post first appeared on the Copyright for Creativity Coalition’s site]

Caroline is coordinator of the Copyright 4 Creativity (C4C) coalition. She is also the founder and Managing Director of N-square Consulting (N²), a Brussels-based public affairs firm. She is the author of ‘iLobby.eu: Survival Guide to EU Lobbying, Including the Use of Social Media’.