The Estonian Presidency compromise proposal on the Directive on Copyright in the Digital Single Market has been published and guess what… Oops: they did it again.
Whilst the document looks at the entire proposal, the approach taken on Article 11 (the press publisher’s right a.k.a. ancillary copyright) and Article 13 (a.k.a. the censorship filter) is once again especially striking:
- For Article 11, the Council Presidency happily continues its schizophrenic approach, by continuing to present side-by-side two possible options, where Option A is a fully-fledged new neighbouring right whilst Option B propose a presumption for press publishers.
- For Article 13, as we expected in light of the leaked joint French, Spanish and Portuguese ‘proposals’, the Estonian have jumped on the ‘let’s rewrite everything’ bandwagon by suggesting a codification of the concept of ‘communication to the public’, in which they manage to equate pretty much all of the Internet with The Pirate Bay, basically implementing the principle of ‘guilty until proven innocent’ on all online platforms (except a selected few), and by extension to all their users.
© proposed rules create even more chaos: ‘I think I did it again – I made you believe we’re more than just friends’
Estonia, the country of digital innovation… Yet the rules they propose go directly counter to any future innovation and will stifle many of the activities users currently do on the Internet, and this funnily under the heading of ‘creating more legal certainty’. Talk about misleading advertising!
There is a reason why the concept of communication to the public was initially drafted in an open and flexible manner: putting things into boxes in legislative texts has a tendency of making legislation obsolete or unfit for purpose on day 1 of its entry into force.
Legal concepts are often only a framework that then needs to be adapted to a specific case to become a more detailed reality. When legislation goes beyond this framework and tips into micro-management, things usually go wrong very fast.
The Estonian proposal can be read as a chain of chaotic ‘clarifications’ with random carve-outs that in no way create more legal certainty as claimed in the document:
- Carving out some but not others: telecoms operators, (some) cloud providers (those ‘which allow users to upload content for their individual use such as cyber lockers’) and online marketplaces benefit from a carve-out (Recital 37)… too bad for all the others that are still caught in the censorship machine net, such as Wikipedia, GitHub, Tinder (yes, really!), etc.. The proposal attempts to also carve out any initiatives by rightholders, as it excludes ‘providers of online services where the content is mainly uploaded by the rightholders themselves or is authorised by them’ (Recital 38d). It seems extremely difficult to prove that on any online platform except maybe those run by or owned in total or in part by rightholders themselves? Surely the purpose could not be to give those platforms a competitive edge over other, more ‘open’, initiatives?
- Protected content concept: the document seamlessly switches from ‘copyright-protected’ to simply ‘protected’ content, making one wonder which content could not fall under the scope (especially considering ‘other subject matters’ are also invited to the party)? After all, even just writing your bio when creating a profile on a social media platform is ‘copyright protected content’.
- Categorising platforms according to their main purpose or one of their main purposes: yes, we feel legal certainty streaming in here! #irony Let’s be honest, the main purpose of most online platforms is making money (non-profits such as Wikipedia or GitHub excluded). The activities they undertake to achieve this can be varied and difficult to classify in terms of main vs accessory. And who will be the judge?
- Punishing service providers for organising content in a findable manner: aah, the good old days of the Internet for the few and privileged that could make sense of it, with blue screens with yellow text and no images. But now, shame on all these companies clearly being accessories to systematic copyright infringements by ‘for example indexing the content, presenting it in a certain manner [Note: what does that even mean?] and categorizing it’ (Recital 38a).
- Creating legislation that requires voluntary measures and private policing but states it needs to be assessed on a case by case basis and according to proportionality principles: if a rightholder sends an online platform a threatening letter, I wonder how this is expected to work? Will every start up go down the ‘I’m going to court’ route or just cave in, avoid liability, and block anything flagged to them without asking questions?
- Asking for effective measures with no safeguards such as proportionality. Some constraints to a zealous application of censorship seem to be included in Article 13 paragraph 2 but how effective are they likely to be considering that rightholders would be the judges in case of complaint and that Member States are supposed to ensure private operators will respect certain fundamental freedoms (freedom of expression and information) when applying their terms and conditions, whilst telling them they are liable for all content uploaded on their platforms.
Confused yet? Well, there’s more.
Defining ‘communication to the public’ through The Pirate Bay looking glass: ‘Can’t you see I’m a fool in so many ways’
As pointed out in a previous Copybuzz blog by Herman Rucic, the concept of communication to the public is far from straightforward:
‘The IP blog IPKat counts almost 20 CJEU [Court of Justice of the European Union] cases on it. The result is that, according to 56 respected academics who co-signed a recommendation answering the multiple questions regarding the legality Article 13 that were raised by seven Member States, the CJEU “developed a complex set of conditions for identifying acts of communication to the public” (p. 5), including “additional tests (…) such as the criterion of a ‘new public’, ‘knowledge’ and a ‘profit motive'” (p. 22). Moreover, recent judgements shows that the national Courts also deviate from the CJEU’s interpretation based on the case being handed to them, as they use the margin of interpretation left to them to adapt their decisions to the case before them. In other words: the concept is dynamic and courts continuously adapt it to the reality at hand and the specifics of the case before them.’
At the very least, this means that codifying such a complex concept should require, under the Better Regulation principles supposed to govern legislation in the EU, a fully-fledged public consultation of stakeholders and a detailed Impact Assessment.
None of that in the Estonian proposal: it selects only a fraction of the criteria identified by the CJEU case law, basically making a blanket assumption that all platforms equate The Pirate Bay, and hence considering that all information society service providers that organise content uploaded by their users are liable for that content. This stance contradicts the carefully weighed approach of the CJEU and the fact that the many criteria it has identified over the years cannot be read in isolation one from the other.
A comparative table (also downloadable as PDF) at the bottom of this post highlights what the Estonians put on the table, and how their monster was fed by the Troika’s proposal.
Conclusion: ‘I played with your heart, got lost in the game (…) I’m not that innocent’
It is unclear why Estonia is falling so willingly in the trap set by the French, Spanish, Portuguese copyright Troika. One could believe it is naivety if it weren’t for the constant gaming on the times of release of documents combined with a continuous pressure to ‘move quickly’. Let’s be honest, which delegation aside from the (c) extremist Troika will be prepared on 6-7 November to give feedback on a fundamental reshuffle of both the copyright rules and the e-Commerce Directive dropped on them on 30 October, at the start of fall break? What better way to claim that, if everyone stays silent, they all agree, as seems to be the ongoing modus operandi of this Presidency? Yet many stakeholders have not stayed silent so far.
The outcome is increasingly worrying, as the Estonians have now achieved to make the terrible proposal of the European Commission even worse. Yes, truly, they’re not that innocent…and we’ve all become guilty!
|Amendment proposed by the|
French, Spanish & Portuguese delegations
|Consolidated Estonian Presidency compromise proposal||Impact of the proposed changes|
|Article 13||Article 13|
|Use of protected content by information society service providers storing and giving access to works and other subject-matter uploaded by their users||Use of protected content by information society service providers storing and giving access to large amounts of works and other subject-matter uploaded by their users||Both proposals|
While the distinction of ‘large amounts’ is questionable as a criteria, at least it places some limits to the scope of Article 13. Removing this means that all platforms, big or small, are covered by this provision. There is text implementing a form of size limit introduced in the paragraphs of the article (see below). The text also suggests that platforms ‘use’ content that is upload by third parties.
|1. Member States shall provide that information service providers that store works or other subject-matter uploaded by their users and are actively involved in providing access to the public to such contents, including by optimizing the presentation of the uploaded works or subject-matter or promoting them, perform an act of communication to the public within the meaning of Article 3 of Directive 2001/29/EC and are deemed not to fall under Article 14 of Directive 2000/31/EC.||1. Member States shall provide that an information society service providers that provider whose main or one of the main purposes is to store and provide give access to the public access to large amounts of copyright protected works or other protected subject- matter uploaded by their its users shall, is performing an act of communication to the public or an act making available to the public within the meaning of Article 3(1) and (2) of Directive 2001/29/EC when it intervenes in cooperation full knowledge of the consequences of its action to give the public access to those copyright protected works or other protected subject matter by organising these works or other subject matter with rightholders, the aim of obtaining profit from their use.||The Estonian proposal|
Both proposals are redefining when online platforms engage in a communication to the public. However, the Estonian proposal introduces many subtleties by, amongst other things:
The result is a bonanza of legal uncertainty.
The FR, ES, PT proposal
This provision creates the risk for online platform hosting and giving access to any form of user-uploaded content to (1) engage in a communication to the public and (2) lose their intermediary liability exemption under the e-commerce Directive. Only 2 conditions have to be met, namely to:
Suddenly Wikimedia is communicating to the public and is no longer protected under the intermediary liability exemption. But, so is a university hosting a repository for its researchers to make their publications available, or a newspaper with a comments section.
|They should negociate with rightholders and conclude licensing agreements. These agreements might cover the liability of the uploaders when they are not acting in a professional capacity, for such acts falling within Articles 2 and 3 of Directive 2001/29/EC.||The FR, ES, PT proposal|
This imposes a mandatory obligation to conclude licensing agreements. To us that seems contrary to contractual freedom. What if both parties prefer another form of agreement than a license? What if the terms of the only agreement proposed are absurd?
|2. Without prejudice to paragraph 1, Member States shall ensure that all information society service providers that store and give access to significant amounts of copyright protected works or other subject-matter uploaded by their users, upon request from rightholders and subject to supply of the necessary data to allow the identification of their content by service providers, take measures to prevent the availability on their services of works or other subject-matter identified by rightholders.|
Those measures, such as the use of effective content recognition technologies, shall be appropriate and proportionate. This is without prejudice to the possibility for rightholders and information service providers of entering into voluntary agreements allowing for the use of the protected content.
|1a. Without prejudice to paragraph 1, Member States shall ensure that an information society service provider that stores and provides access to the public to a significant amount of works or other protected subject-matter uploaded by their users who do not hold the relevant rights in the content uploaded take effective measures:|
a) to ensure the functioning of agreements concluded with rightholders for the use of their works or other subject-matter; or
b) in the absence of an agreement, to prevent the availability on their services of works or other subject-matter identified by rightholders through the cooperation with.
The measures shall be applied by the information society service providers. Those measures, such as at the use of effective content recognition technologies, request of rightholders to specific works and other subject-matter as identified by them. The measures shall be appropriate and proportionate, taking into account, among others, the nature of the services, the type of works or other protected subject-matter uploaded by the users of the services, the availability and costs of relevant technologies and their effectiveness in light of technological developments.
The notion of ‘large amounts’ is being turned into ‘significant amounts’. However, this does not solve anything, as this remains an undefined legal concept that has been criticised by academics, such as the Max Planck Institute.
The Estonian proposal
The Estonians are trying to obfuscate the fact that Article 13 remains a censorship filter by removing the reference to the use of effective content recognition technologies. However, online platforms still need to take ‘effective‘ measures to uphold their agreements with rightholders (which could contain requirements for platforms to use effective content recognition technologies), or in the absence of an agreement they still need to prevent the availability on their services of works or other subject-matter identified by rightholders. The latter will be very hard to achieve for online platform without the use of effective content recognition technologies! The fact that the paragraph keeps referring to the use technologies leaves no doubt about this.
Here again the Estonians try to add lots of words (e.g. availability, costs, effectiveness, etc.) that in their view seems to ease the pain at first sight. However, these criteria do not acknowledge that the market for filtering technologies only has a limited number of players and even less who provide ‘effective’ solutions. It also forgets that the discussions on implementing these measures will start at a level of ‘rightholder threatens to sue platform’, where the platform is likely to pretty much do anything to avoid liability and court cases in general.
The FR, ES, PT proposal
This provision then ensures that all online platform storing and giving access to user uploaded content are being pushed into implementing effective content recognition technologies, as they need to prevent the availability of any content identified by the rightholders.
Even if an online platform would conclude voluntary agreements with rightholders for the use of their content, this provision clearly does not safeguard them from being pushed into implementing effective content recognition technologies on their platform. So, as a platform you are going to be bullied in all directions, from bad agreements to even worse filtering measures.
Moreover, the logic still remains one of pushing the handling of EU citizens fundamental freedoms outside the rule of law, as the measures taken will be done so under the terms and conditions of the platforms.
|3. Member States shall ensure that information society service providers shall provide rightholders with adequate information on the functioning and the deployment of the measures referred to in paragraph 2.||1b. The information society service providers provider shall provide rightholders, at their request, with adequate information on the functioning and the deployment of the measures, as well as, when relevant, adequate reporting on the recognition and use of the works and other protected subject-matter.||The Estonian proposal|
The Estonians are adding some burden on the rightholders, as they now have to request online platforms to give information them about their filtering efforts.
The provision also removes the reference to information on the recognition of works, but still remains more detailed than the vague provision put forward by the French, Spanish and Portuguese Troika.
The FR, ES, PT proposal
Where initially it was up to the online platform to give information about their filtering efforts to the rightholders, Member States are now being dragged in to ensure that they do so. We can imagine that Spain, France and Portugal are keen on taking up this role as ‘whip’ to ensure discipline amongst online platforms. However, it remains to be seen if other Member States are as comfortable with it.
|21c. Member States shall ensure that for the service providers referred to in paragraph 1 put in place complaints and redress mechanisms that are available to users in case purpose of disputes over the application of the measures referred to in paragraph 11a to specific works or other subject-matter of rightholders, the rightholders shall provide an information society service provider with the necessary data.|
|4. Member States shall ensure that the information service providers referred to in paragraph 1 and paragraph 2 put in place complaints and redress mechanisms that are available to users in case of disputes over the application of the measures referred to in paragraph 2. Any complaint filed by a user under the mechanism shall be processed by the relevant rightholder within a reasonable period of time. The rightholder shall duly justify his/her decision.||2. Member States shall ensure that the measures referred to in paragraph 1a shall be implemented by an information society service provider without prejudice to the freedom of expression and information of their users and the possibility for the users to benefit from an exception or limitation to copyright. For that purpose the service provider shall put in place a complaint and redress mechanism that is available to users of the service in case of disputes over the implementation of the measures. Complaints submitted under this mechanism shall be processed by the relevant rightholders within a reasonable period of time. The rightholder shall duly justify its decision.||Both proposals|
The recent recommendation of 56 academic already criticised the idea of promoting the rightholders to judge, jury, and executioner. Because the rightholder is “a party with strong incentives to disallow use” (p. 13). Their comment was made in the context of the Estonian Presidency’s compromise proposal, which coincidentally also proposed to do the same.
Ensuring that the “rightholder shall duly justify his/her decision” is just putting a band-aid over bad legislation that will severely hamper citizens freedom of expression online. Neither the service providers nor the user will likely be tempted to pick a fight with the rightholder over their decision.
Oh, and still no courts involved: remember, this is all happening outside the rule of law!
|2a. Member States shall ensure that the obligations set out in this Article apply to information society service providers established in their territory in accordance with Directive 2000/31/EC and to information society service providers of third countries who offer their services of storing and providing access to works or other protected subject-matter uploaded by their users who do not hold relevant rights in the content in the European Union.||The Estonian proposal|
The Estonians want to remind everyone that there is no escape to this legislation by establishing one’s business outside of the EU. However, we have serious doubts about the enforcement of this provision against rogue websites based in 3rd countries. Therefore, we fear that this provision will remain toothless against the real infringing websites, whilst breaking the Internet for all users and for law abiding online platforms.
|5. Member States shall facilitate, where appropriate, the cooperation between the service providers and rightholders through stakeholder dialogues to define best practices, such as the use of appropriate and proportionate content recognition technologies, taking into account, among others, the nature of the services, the availability and costs of the technologies and their effectiveness in light of technological developments.||3. Member States shall facilitate, where appropriate, the cooperation between the information society service providers and rightholders through stakeholder dialogues to define best practices, such as the use of appropriate and proportionate content recognition technologies, taking into account, among others, the nature of the services, the availability of the technologies and their effectiveness in light of technological developments.||The Estonian proposal|
Just as in paragraph 1 the Estonians think they can alleviate a lot of the concerns surrounding the proposal by no longer explicitly talking about content recognition. This makes us wonder which ‘appropriate and proportionate technologies’ Estonian companies have invented that will magically do everything required by this Article without applying content recognition? The explicit reference to ‘technologies’ leaves very little room for alternative measures .
The FR, ES, PT proposal
Talking about the cost of filtering technologies is the delegations’ attempt at throwing in an artificial sweetener to make it easier to swallow this bitter pill for online platforms. However, doing so neglects the fact that implementing ‘effective content recognition technologies’ it’s not that easy as throwing a couple of bucks at it, as we have previously explained.
Moreover, effective is just another word for ‘when in doubt, block’.
|4. Member States shall determine the sanctions applicable to infringements of the obligations set in this Article. The sanctions provided shall be effective, proportionate and dissuasive and shall be without prejudice to European Union and national applicable laws on enforcement of intellectual property rights.||The Estonian proposal|
The reform claims to harmonise copyright in the digital single market, but instead this provision encourages the creation of 27 different sets of sanctions. Talk about missing the boat entirely!
|5. Member states shall provide that agreements concluded between information society service providers which store and give access to works and other protected subject-matter uploaded by their users referred in paragraphs 1 and 1a above, and relevant rightholders, shall cover the liability of the users of the information society services, when they are not acting in a professional capacity, for acts falling within Article 3 of Directive 2001/29/EC.||The Estonian proposal|
This notion of ‘professional capacity’ is very difficult for online platforms to assess. Should they start asking all their users to provide their VAT or company number if they have one in order to define who’s ‘acting in a professional capacity’?
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