The European Commission is planning to modernise EU copyright law. This is welcome news, because the current regulation is severely outdated: it is half as old as the World Wide Web itself and quite a bit has happened to the internet since the EU last tackled the issue. However, the proposal the Commission has put forward endangers freedom of expression. Liberties calls on the Commission to remove Article 13 from their proposal for a Directive on copyright in the Digital Single Market in order to avoid serious threats to our human rights.
Currently, the responsibility internet companies have for their users’ content is regulated by the so-called e-Commerce Directive. According to this directive, internet companies are not liable for the data they transmit if they have no knowledge about its copyright infringement. They don’t have to monitor users’ content. They are only responsible if the copyright holder notifies them about the breach and they don’t act accordingly. Many companies, especially those in the music industry, despise this system because they have to chase copyright-infringing material. Getting such content removed requires effort, time and resources. Companies in the music industry say platforms such as Youtube, Instagram or Tumblr should bear greater financial responsibility for the costs of policing such content, as some of their income is undoubtedly generated from the copyright-infringing material they allow users to upload.
Article 13 of the proposed Directive would replace the current limited-liability system with automated content filtering systems that prevent copyrighted material from being uploaded to the internet in the first place. It would require all internet companies to monitor all the content their users attempt to upload.
It is important to emphasize that the article in question would apply to all internet companies, and they would be required to monitor any type of user-uploaded content. If Article 13 becomes law, platforms hosting videos (such as Youtube), social media platforms (such as Facebook or Twitter), blogging platforms (think of Blogger or Wordpress), picture sharing platforms (such as Instagram, Flickr) and all other internet platforms that allow content uploading will need to constantly monitor their users’ activity.
It is highly unlikely that the filtering systems used by these companies will be able to properly identify certain flexibilities within copyright law, such as the use of parody or brief quotation. They will simply prevent any material that has the slightest chance of infringing copyright from being uploaded. If service providers need to apply filtering mechanisms to avoid liability, they will almost certainly apply something overly restrictive rather than risk a fine.
This is extremely problematic.
Imagine that you want to upload a video to Facebook about an ongoing protest in order to convince your friends to join. But there is some copyrighted music in the background - a fitting song blares while people march for their rights. If Article 13 comes into force, there is a good chance that you will not be able to upload your video.
Or imagine that you want to express your opinion about the political leaders of your country by showing how their gestures are similar to some wicked characters from well-known films. You produce a short video showing film scenes and news snippets one after another, and you want to upload that video to your blog. Under Article 13, there is a good chance that you will not be able to do this.
Although Article 13 requires member states to put in place mechanisms for users to register complaints and seek redress over such cases, these mechanisms are insufficient. In order to avoid legal and bureaucratic burdens, most providers will remove or block content on the basis of their terms of service and not on the basis of law. Businesses seek to maximise profit rather than find the best balance between copyright and free speech, and this will not change.
The concerns about Article 13 are widely held. Many argue that Article 13 not only endangers freedom of expression but also reduces diversity on the internet. It creates serious legal uncertainties, too. Leading scholars and academics have expressed their concerns about this legislation; open letters have been sent to various European institutions. Even member states have expressed concerns about the legality of the proposal.
Liberties has initiated a campaign to urge Members of the European Parliament to consider the human rights perspective of the draft Directive and delete Article 13. A second phase of this campaign will ask European citizens to send an open letter directly to MEPs asking them to scrap this legislation. If you want to learn more about this upcoming part of the campaign, please subscribe to our newsletter.