viernes, 24 noviembre 2017

(English) Council Presidency on ©: Dr Jekyll, Mr Hyde & his alter ego on steroids

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The Estonian Council Presidency has not remained idle during the summer, as demonstrated by the Council document leaked [PDF] today on Statewatch: no sipping refreshing beverages on a terrasse for them, the summer was all about ‘work, work, work’, as the song says.

But what is the result of this failed summer experience? Well, I guess in medical terms, schizophrenia would be the appropriate terminology.

The Presidency has indeed come up with a Presidency Compromise proposal regarding Article 1, 2 and 10 to 16….except on Articles 11 (Press publisher’s right aka ‘link tax‘) and 13 (upload censorship filter). For these controversial topics, the Presidency each time presents two alternative texts: in the case of Article 11 this leads to a bad/good alternative, whilst on Article 13, the choice is between bad and worse.

Article 11 – the Press Publisher’s Right: a definite Mr Hyde/Dr Jekyll dichotomy

Option A: Mr Hyde

The first alternative proposal for Article 11 takes all of the worst elements in the European Commission proposal and amplifies them by a factor of ten:

  • the scope of the press publisher’s right is expanded from digital publications to publication published in any media, including on paper and covers also explicitly videos and photos.
  • it is clearly confirmed that hyperlinks are part of the scope, when they constitute a communication to the public (a concept which is currently a moving target that sways with every new decision of the Court of Justice of the European Union).
  • the rest remains pretty much the same, both in terms of the impact of the provision and its duration (i.e. 20 years), with all the flaws we highlighted in the past still very much at play (save for some small cosmetic changes related to public domain material and trying to avoid factual elements in newspapers being protected under this new neighbouring right).

In other words, with this option, the Estonian Presidency fully engages on the route of cracking down on links and on the circulation of information online. It builds on the original bad proposal of the European Commission and adds flavours of ‘worseness’ [Note: we know that is not an English word but, honestly, neither are most of the texts produced by policy makers].

Option B: Dr Jekyll

The second alternative builds on proposals tabled in the past by former JURI Committee Rapporteur MEP Comodini Cachia and aims at creating a presumption for publishers of press publications to facilitate the enforcement of their rights before courts, in case of infringement. In other words, publishers would be deemed to be the legitimate rightholders of the articles and other material that are included in their publications, unless the other party would prove the contrary.

This version is especially positive as it addresses a legitimate concern of publishers (some of which are asked to prove their rights over each little piece of content in their newspaper when suing to protect their rights) but at the same time ensures that the given presumption does not affect the rights of the authors and other rightholders  ‘and, in particular, may not deprive them of their right to exploit their works and other subject-matter independently from the press publication in which they are incorporated’.

The balance hence created is certainly refreshing and brings a ray of sunlight to a discussion that has so far been led at best under stormy clouds.

Article 13 – the Upload Censorship Filter: meet Mr Hyde and his alter ego on steroids

No real schizophrenia to be spotted in these two proposals as both versions definitely go down the Mr Hyde route:

  1. in both versions, the E-commerce Directive (ECD) provisions related to intermediary liability are clearly brushed from the table upfront: regardless if an online platform benefits from Article 14 ECD or not, services that store and give access to content should take measures such as implementing effective technologies to prevent the appearance of rightholders content.
  2. in both versions, some exemptions to the scope are added in a recital (covering internet access providers, e-commerce platforms, personal cloud storage) but whilst this attempt highlights the all encompassing nature of the Commission’s original proposal, it is also opening a door for legal uncertainty and litigation, as many of these definitions may be unworkable in practice.

Option A: Mr Hyde with some after thoughts of Dr Jekyll

Let us not kid ourselves: notwithstanding the many mitigating words added by the Presidency, Mr Hyde very much prevailed in the personality struggle as the full underlying logic of Article 13 as proposed by the European Commission is still very much alive: we are still talking about censorship filters being applied to user uploaded content under the joint control of private companies. And this regardless of the applicability of the safe harbor principles of the E-commerce Directive. The Dr Jekyll part that tries to mitigate the damages contained both in the Commission’s original proposal and in this one feels more like a cosmetic attempt than a true curbing of the underlying threat, because of the fact that:

  • the text acknowledges that only user uploaded content by ‘users who do not own the relevant rights in the whole or parts of the content they upload’ should be looked at.
  • the role of information society service providers must be assessed ‘on a case by case basis by the courts’, and not through blanket legal provisions.
  • the reference to ‘content recognition technologies’ is removed, even though the original logic of ex ante measures is still very much preserved (prevent the availability = blocking before content is visible on a website)
  • not only the volume of user uploaded content should be looked at, but also the nature of that content (‘such as the total number of files of copyright-protected content uploaded by the users of the services and the proportion of the protected content uploaded by the users in the overall amount of content available on the service’).
  • the type of content at stake should be taken into consideration as well as the size of the service. It is not clear however who should take this into consideration: a court, the rightholder, the service provider? Some of the recitals seem to hint at an assessment conducted purely by the service providers in collaboration with rightholders, meaning only private entities judging appropriateness and proportionality of these measures.
  • the measures taken must respect fundamental freedoms of their users and be without prejudice to the application of the exceptions and limitations to copyright’ (though that is more wishful thinking than technical reality, when looking at software filters that tend to block content in a rather blanket manner).

These few after thoughts are however insufficient to consider the threat to European citizens’ fundamental rights and freedoms alleviated in practice as they are still very much open to interpretation and only appear in the Recitals, not the Article. Moreover, from a technical point, filters do just that: they block things at the source, and do not have the capacity to apply nuances about fundamental rights and the applicability of exceptions such as parody to uploaded content (nuances even courts spend time and effort in defining). Moreover, the upfront and explicit disregard of the E-commerce Directive is simply baffling.

Option B: A Fully-fledged Mr Hyde with a serious shot of steroids

Under option B, whilst a lot of the elements highlighted above in option A remain, the text claims to aim at clarifying a key and intricate concept of copyright, namely what constitutes an act of communication to the public.

Under this pretence, it actually clearly states that both online hosting platforms that ‘optimise’ uploaded content (I guess that means they make it look pretty and relevant?) and their users will be liable in case of copyright infringement.

Image credit: By Chicago : National Prtg. & Engr. Co.Modifications by Papa Lima Whiskey – This image is available from the United States Library of Congress’s Prints and Photographs division under the digital ID cph.3g08267. From Wikimedia.

 


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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’.