As you may have heard, the EU is debating a quite controversial proposal to reform its copyright laws. Now, a number of high-profile people, including the inventor of the World Wide Web himself, Tim Berners-Lee, has come out in opposition to the directive. So what’s going on?
The problematic provision is Article 13 of the Directive on copyright in the Digital Single Market. It reads:
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
1.Information society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users shall, in cooperation with rightholders, take measures to ensure the functioning of agreements concluded with rightholders for the use of their works or other subject-matter or to prevent the availability on their services of works or other subject-matter identified by rightholders through the cooperation with the service providers. Those measures, such as the use of effective content recognition technologies, shall be appropriate and proportionate. The service providers shall provide rightholders 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 subject-matter.
2.Member States shall ensure that the service providers referred to in paragraph 1 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 1.
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 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 concern here is that this provision requires internet service providers to use automatic filtering technologies that would remove content without any consideration for whether that content is lawful or fits under a copyright exception like fair use/fair dealing. Most of the time when people upload things to the internet, it is perfectly legal and this sort of technology could be used to improperly censor content. In the words of Tim Berners-Lee and his colleagues: “By requiring Internet platforms to perform automatic filtering all of the content that their users upload, Article 13 takes an unprecedented step towards the transformation of the Internet from an open platform for sharing and innovation, into a tool for the automated surveillance and control of its users.
Consider something like a meme GIF or a mashup. These sorts of things use previously created content, but are basically accepted today, as permissible uses of copyrighted material. Sometimes they don’t fit under fair use, but often they do. Article 13, however, could cause them to be automatically removed as soon as they are put online, without any consideration for their legality. Think about how many truly original, creative, and great things would never see the light of day because of this. As a huge mashup fan, it makes me sad.
The European Parliament’s Legal Affairs Committee will vote on the proposal on June 20-21. Currently there is a lot of opposition to the directive, so maybe it won’t pass. But who knows. We’ll definitely be watch.