Mandatory Internet filtering and The War on Memes

In the last blog post we talked about the nefarious article 11 in the proposed new Copyright Directive, and why most experts agree it is a terrible idea. It is now the turn to look at yet another bad proposal in the Directive, and it is Article 13.

We now have a very good idea of what the final text of the directive will look like, and it is raising all sorts of concerns by people who are familiar with the inner workings of the Internet. Article 13 is an attempt to modify the intermediary liability regime that allows services to operate when users could be uploading infringing content.The idea for over 20 years has been that providers are not liable for the content uploaded by their users unless they have been made aware of such infringement. Article 13 will eliminate this safe harbour and will make intermediaries more liable. The text reads:

“-1.   Without prejudice to Article 3(1) and (2) of Directive 2001/29/EC, online content sharing service providers perform an act of communication to the public and shall conclude fair and appropriate licensing agreements with rightholders, unless the rightholder does not wish to grant a license or licenses are not available. Licensing agreements concluded by the online content sharing service providers with rightholders shall cover the liability for works uploaded by the users of their services in line with terms and conditions set out in the licensing agreement, provided that those users do not act for commercial purposes or are not the rightholder or his representative.“

So intermediaries now have to conclude licensing agreements with content providers ahead, which will include an assumption that the services will be used to infringe copyright, and not the other way around. Guilty until proven innocent.

Then the system will impose an obligation on intermediaries to put in place automated filtering mechanisms that will remove potentially infringing content from the Internet. You may say this sounds like a great idea, until you start to look at the detail, and this could have serious consequences for all sorts of intermediaries. The text reads:

“In the absence of licensing agreements with rightholders online content sharing service providers shall take, in cooperation with rightholders, appropriate and proportionate measures leading to the non-availability on those services of works or other subject matter infringing copyright or related-rights, while non-infringing works and other subject matter shall remain available.”

This is obviously an imposition of technical filters. This proposal is being attacked by critics as a European ban on memes, as filtering robots would remove and/or block content even if it is something as basic as the latest meme. While I disagree that it may ban all memes, it is true that the system will make it more difficult for small intermediaries to operate, and it could also legitimate affect content.

The proponents of the idea state that this is not too bad because the proposal has a built-in balance mechanism that reads:

“1b. Members States shall ensure that the implementation of such measures shall be proportionate and strike a balance between the fundamental rights of users and rightholders and shall in accordance with Article 15 of Directive 2000/31/EC, where applicable, not impose a general obligation on online content sharing service providers to monitor the information which they transmit or store.”

This is meaningless as it simply kicks the question of what is proportionate and about balance back to the courts. Moreover, the proposal tries to remove concerns by allowing for some redress mechanism for users:

“2. To prevent misuses or limitations in the exercise of exceptions and limitations to copyright, Member States shall ensure that the service providers referred to in paragraph 1 put in place effective and expeditious complaints and redress mechanisms that are available to users in case of disputes over the application of the measures referred to in paragraph 1. Any complaint filed under such mechanisms shall be processed without undue delay. The rightholders shall reasonably justify their decisions to avoid arbitrary dismissal of complaints.”

So don’t worry if your content is removed from the Internet maliciously, our amazing complaints system will sort it all out. The rest is window dressing to try to eliminate some of the many concerns that experts, intermediaries, and the general public have.

The first effect of Article 13 is that it will affect the balance that has been prevalent for the last twenty years in the name of giving copyright holders a bit more money in licensing fees. That in itself is not bad, but the real problem is the imposition of automated enforcement mechanisms that will not be able to tell a parody from an infringing work.

What will end up happening is that the big players such as Facebook and Google will be able to comply as they already have pretty sophisticated mechanism in place, such as YouTube’s Content ID. But the real victims will be users and small intermediaries, who will not be able to compete with the large providers because they will not only have to provide filters, they will also have to provide the expeditious complaint mechanism that will bring back content if something goes wrong. This would make it prohibitive for small services, but most importantly for non-profit and other content providers to operate.

What is likely to happen is that more than a few small and medium providers will refuse to operate in Europe, furthering the balkanisation of the Internet. Then we will witness thousands of unwarranted content removals, and then we’ll continue an arms race of changes to content that try to fool the AI, with little or no result for content owners.

Contact your MEP and let them know that this is a bad idea!

Update:

Arts 11 and 13 have been defeated! At least for now, we need to continue with the pressure until the worst elements of the articles have been removed or edited to comply with existing case law that respects the balance of rights.