Saturday, 18 August 2018

France, Spain, Italy and Portugal go beyond maximalist on ©

The copyright dossier has hit a small respite in Council as the Bulgarians were unable to push through their so-called compromise text in the Friday COREPER meeting. But as the French say, this could be a case of ‘reculer pour mieux sauter’, as discussions continue on Friday 4 May at the Ambassador’s level, with the Bulgarians still twisting arms to get a mandate to negotiate with the European Parliament, despite the enormous wave of protest that hit them last week.

While we thought the Bulgarian proposal was bad in terms of the legal uncertainty it created in many areas and specifically as regards Article 13 (aka the censorship machine), a Mediterranean coalition bringing together France, Spain, Italy and Portugal put an even more catastrophic proposal relating to Article 13 on the table (leaked by EDRi), making the Bulgarians look like the ‘soft’ version of #copyfails.

The initial Bulgarian proposal: A two-pronged approach with some mitigating factors

The Bulgarian presidency proposal should be read as setting out a two-pronged approach:

Part 1: the end of the e-Commerce Directive (no notice and take down regime), replaced by an unlimited liability of ‘content sharing services’ for their users’ uploaded content, those services ranging from profit-making open source code sharing platforms such as GitHub to cloud services that allow their users to share files. The only way out for those services is to get licences from rightholders…What licences for what from whom, you probably wonder? Well, that’s the tricky bit: since it is impossible to know beforehand what content a user will upload an which copyrighted materials it could include, the targeted services will either have to filter everything out preventively or acquire licences for all the present, past and future copyrighted works (and other subject matters, such as the digital uses of newspaper articles covered under Article 11) in the entire world…

Part 2: should this be unfeasible, a set of measures must be undertaken by the ‘content sharing services’: as an unlimited liability for the service provider for all user uploads basically means ‘no user uploads’ to avoid legal liability, the text suggests that the targeted services could continue to operate if they adopt a certain number of measures, namely:

  • Use upload filters, that block user uploads before they appear online, for copyright infringements;
  • Take down user uploads which contain copyrighted content, irrespective of whether an exception applies, and without the need for the rightholder to deliver a proper notice. In other terms, a rightholder can just dump its entire catalogue of works on a platform and tell them: block any infringement to these works, without having to point to a specific infringement that has actually occurred (whilst under the e-Commerce Directive, they have to at least indicate where the infringing upload is located).
  • Apply a “stay-down, take down policy” whereby when a particular copyrighted work included in a user upload has been taken down, technical measures must ensure that it never appear again in any other user upload.

Mitigating factors: some carve-outs in terms of the scope: in order to not kill the entire Internet, the Bulgarians added some exclusions to the scope for non-profits and certain types of platforms that were part of the initial collateral damage engineered by the European Commission. Aside from the fact that the language used is far from satisfactory, the legislative logic behind it is doomed to fail as any carve outs are limited by the services that exist today, leading to legislation that is absolutely not future-proof.

A wave of protest ensued when this text was published as these requirements cannot be complied with.

But then, the Mediterraneans decided to go one step further.

France, Spain, Italy and Portugal: Can we propose worse? Oui, si, si, sim!

Prior to the COREPER meeting, a joint proposal was put forward by France, Spain, Italy and Portugal, the troika of countries that have been pushing the entire dossier down the abyss of copyright maximalism since the start, with a governmentless Italy now tagging along.

Step 1: Re-broaden the Scope of Article 13 to have more platforms covered (Article 2.5)
The Mediterranean proposal no longer limits the scope of Article 13 to non-profits or services that give access to large amounts of content, hence dragging non-profits and services with minimal volumes of user uploads in the Article 13 spiral.The justification: it ‘creates legal certainty’ is actually quite true: now pretty much the whole Internet that engages in two-way communication with its users falls under the requirements of Article 13.
Step 2: Make the list of carve outs exhaustive with no possibility for interpretation or no margin of manoeuvre for Member States (Recital 37a)
 The definition is further tightened by deleting the ‘such as’ in the carve out enumeration (“such as online encyclopaedias, scientific or educational repositories etc”.) which means that the enumerated carve out scenarios should be read as an exhaustive list of examples.
Step 3: Make sure there is no other solution than the full liability of platforms unless they censor to the max with the blessing of rightholders (Article 13.4)
In order to avoid any liability, the covered services have to simultaneously do three things:

  1. put in place upload filters;
  2. put in place a ‘notice and take down and stay down’ procedure, whereby the notice is still limited to being informed of the copyrighted nature of works, not of an actual infringement; and
  3. make sure that the implemented measures have been ‘agreed upon by rightholders’, meaning that the future of free speech in the EU is now placed in the complicit hands of businesses that are trying to avoid liability and businesses that consider the Internet as the source of all evil.

In an elegant though absurd gesture, the Mediterraneans do concede that if all these measures are taken, criminal liability is off the table, whilst it is explicitly stated that content filtering and notice and stay down “should not provide a blanket exemption from copyright liability”.

Step 4: A Licence to Kill at Member State level (Article 13.8)
Even after all these measures to muzzle the Internet are taken, Member States still have the freedom to impose tougher and stricter sanctions against the appearance of user uploads in national law for the sake of ‘appropriateness’ (not proportionality).
Step 5: Make it clear you are after the legitimate businesses only (Recital 38)
Only legitimate businesses are the ones covered by the Mediterranean proposal and are to be treated as havens of illegal uploads in spe, as the text clearly states that the Directive does not apply to “services engaged in or facilitating piracy”. As if Article 13 had any benefits whatsoever at this stage!

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’.