Tech & Rights

“Earmarking”: A New Synonym For Online Censorship?

​Copyright Guidance introduced a controversial new regime without proper safeguards. It is highly problematic. Here is why.

by Eva Simon

7 June 2021 was the deadline for the implementation of the Copyright in the Digital Single Market Directive.

As you might remember, Article 17 (or Article 13 in previous numbering) provoked huge outcry. Tens of thousands of Europeans protested offline and online against the law and asked the European Parliament to stand up for users’ rights, freedom of speech and privacy. We asked EU lawmakers to refrain from introducing mandatory application of upload filters in order to avoid blocking supposedly infringing content without safeguards. Most probably, you were one of those who signed Liberties’ open letter to save memes and online gaming videos. With your support, we partly achieved what we fought with the final version of Article 17.

On 4 June 2021, the European Commission published the long-awaited guidelines that were supposed to guide Member States how to ensure a user rights-friendly implementation of Article 17. The guidance was supposed to solve the tension between the requirements not to allow the uploading of infringing content on one hand, and how not to block any lawful content on the other hand. The guidance made it clear that the use of filtering technology should be limited to manifestly illegal content. Even though the guidance established necessary safeguards to ensure the rights of the users, it also introduced a massive loophole to the system by opening the possibility for copyright holders to “earmark” their content as economically valuable.

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This “earmarking” regime was unknown for the copyright regulation until now. It opens the possibility for right-holders to require platforms to treat their earmarked content differently, by forcing platforms to introduce some form of general monitoring obligation that was pushed back on by the European Parliament in the debate of the Directive. This new regime also has a negative impact on the free speech of the users. Platforms are incentivized to limit earmarked content from going online to avoid liability for copyright infringement.

The final challenge is yet to come: Poland is asking the Court of Justice of the European Union to decide whether the filtering requirements of Article 17 are in line with the Charter of Fundamental Rights. The opinion of Advocate General Øe is scheduled for 15 July 2021.

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