Today, Communia feedback to the European Commission on its proposal to amend the Directive on the re-use of public sector information. This is the second time the Commission has proposed to update the legal framework for access to and re-use of Public Sector Information (PSI) since the Directive was adopted in 2003. The most important changes from the previous amendment (2013) was the introduction of a genuine right to re-use by making all content that can be accessed under national access to documents laws reusable, and expanding the scope of the Directive to cover libraries, museums, and archives.
This time, the European Commission has proposed to make more research data available, extends the scope to public undertakings (including transportation data), and further limits the scenarios in which public entities may charge for data. This proposal was preceded by public consultations (see COMMUNIA’s response).
We support the proposal to amend Directive, but at the same time we want to draw attention to some issues where the proposal should be improved. Below are our recommendations.
Re-use of research data held by educational and research establishments
We fully support the extension of the scope of the directive to “certain research data, a specific category of documents produced as part of scientific research, namely results of the scientific fact-finding process (experiments, surveys and similar) that are at the basis of the scientific process”. However, the extension of the scope of the directive in this respect should be combined with making them available under permissive open licenses (such as CC BY), or even put into the worldwide public domain using a tool like the CC0 Public Domain Dedication.
At the same time, the proposal excludes publications in scientific journals from its scope. The Horizon 2020 programme Model Grant Agreement already requires that grantees must ensure open access to all peer-reviewed scientific publications — meaning that “any scientific peer-reviewed publications can be read online, downloaded and printed.” It should go further to require that re-use rights be granted to both publications and associated datasets, by requiring that permissive open licenses be applied at the time of publication. For this reason, we urge the Commission to ensure that policy efforts to improve access to publicly funded scientific research (including the upcoming Horizon Europe framework) are complementary — and not in conflict with — each other.
As Member States will be obliged to develop policies for open access to research data resulting from publicly funded research while keeping flexibility in implementation, we urge the Commission to prepare guidelines in this area.
Open licensing as standard mechanism for sharing PSI
Unfortunately, the new proposal doesn’t go far enough in requiring open licensing for PSI. Instead, it only relies on the 2014 guidelines. The 2014 guidelines provided recommendations for standard licences, datasets and charging for re-use of documents, and put a lot of emphasis on the use of standard open licenses. Therefore we recommend the Commission codify their earlier guidelines on recommended standard licences for PSI, and also ensure accurate licensing metadata across PSI and open data portals that reflects these licensing options.
Charging for re-use
COMMUNIA welcomes improved language for clarity on charges and changes in the general rule of charging for PSI, which cannot be more than the marginal costs for dissemination. We are pleased that re-use of research data and the high value data-sets must be free of charge.
In our previous position paper we pointed that “works made available for re-use by cultural heritage institutions that are publicly funded should be available at the costs incurred similar to the public information bodies. It does not make sense that these CHIs can charge fees at a different scale than other PSI bodies seeing that they have similar tasks in providing access to publicly funded resources with minimal restrictions.”
Therefore, we recommend that cultural heritage institutions should only be able to charge marginal cost. The same rule should apply as well to publicly funded undertakings, which are also excepted from ‘marginal costs at most’ principle.
Third party intellectual property rights
In 2014, we noted that Recital 9 of the 2013 Directive introduces some uncertainty to understanding the scope of the Directive because of third party intellectual property rights. The issue of the interpretation of Recital 9 of the Directive was also addressed during a meeting with representatives of member countries under the ‘PSI Group’, which took place on September 10, 2014.
Recital 9 might be interpreted as implying that any document currently held by a library but originally owned by a third party and whose term of protection has not yet expired is a document for which third parties hold an intellectual property right, and therefore is excluded from the scope of the Directive. This reading seems contrary to the provisions established in Article 3 (consolidated version) and contradicts the overall objectives and principles enshrined in the Directive (to open up public knowledge for reuse). With this amendment, the Commission did not take the opportunity to clarify this discrepancy and left Recital 9 without major changes (new Recital 49).
This provision requires further investigation, but in our opinion the situation leads to a lack of harmonization of the scope of cultural heritage resources that are re-used and is not conducive to the creation of international projects, applications, and services that are based on cultural heritage resources.
Yesterday the European Parliament stopped in its tracks the problematic copyright proposal put forth by the Legal Affairs committee based on the EC proposal, and voted to open up debate on the directive to the full Parliament. It’s a remarkable win for everyone advocating for progressive copyright reform in Europe.
MEPs voted 318-278 to deny JURI’s request to enter into direct negotiations with the EU Member States and the European Commission, which would have finalised the directive behind closed doors. Instead, yesterday’s Parliament vote will permit all 751 MEPs to table amendments to improve the copyright proposal, beginning in early September.
The vote unfolded on the heels of a massive outpouring of support from nearly a million people calling for a better copyright reform that upholds freedom of expression and users rights, and doesn’t simply capitulate to the demands of a small cohort of corporate rights holders pushing for Article 13 and Article 11.
The outcome rejects the binary rhetoric (and sometimes outright lies) spread by some MEPs and incumbent rights holders that the fight around Article 13 is simply a fight between Big Content and Big Tech. By denying JURI’s fast track on its committee proposal, the Parliament clearly has recognised the importance of many other stakeholders in the debate around the copyright reform, including the rights of users and the public.
MEP Stihler passionately speaks out against Article 13 - YouTube
MEP and IMCO Vice-chair Catherine Stihler said it best:
There are real concerns about the effect of Article 13 on freedom of expression, raised by experts ranging from the UN special rapporteur David Kaye to the inventor of the World Wide Web, Sir Tim Berners-Lee.
And there are real concern voiced by our citizens. Just yesterday I received a petition signed by almost a million people against the JURI committee mandate.
And although there is consensus about the goals behind this law, huge controversy still exists about the methods proposed. Something’s not right here. We owe it to the experts, stakeholders and citizens to give this directive the full debate necessary to achieve broad support.
Yesterday we won, but the fight is far from over. Now that the full Parliament will get an opportunity to suggest improvements to the copyright proposal, we need to redouble our efforts to fix the most egregious parts of the directive, including the harmful link tax and upload filters. But we can also resurface several other proposed changes for which we’ve been advocating, including important edits to improve Article 4 (education exception), Article 3 (text and data mining exception), and other provisions.
Thank you to the countless individuals, civil society groups, academics, libraries, creators, digital rights organisations, and others who have shown incredible support and resilience in fighting for a balanced copyright proposal. The work to #SaveYourInternet continues, and we’ll be there.
As the members of the European Parliament make their way to Strasbourg for the final plenary before the summer break, here is a reminder of what is at stake when they will vote on the JURI report on the proposed copyright directive this Thursday. Formally they will be voting to approve (or reject) the negotiation mandate the JURI members had given themselves on the 20th of June which, allows MEP Voss to start negotiating the final text of the directive with the Member States and the European Commission. As we wrote earlier the negotiation mandate is highly problematic as it embraces both the publishers right (“link tax”) and a requirement for open platforms to filter all user uploads (“censorship filters”). Both of these articles, which are pushed for by large rightsholders to give them more control over the content that they distribute, undermine important principles of the Internet and will cause significant damage to the much wider online environment.
In other words, the question that MEPs will have to decide this week, is if we accept the fact that fundamental principles of the Internet get thrown overboard at the request of particular industries who stand to benefit from such a move, even if it is clear that everybody else will be worse off as a result. Over the past weeks it has become clear that people are not happy with this prospect. MEPs have been overwhelmed with angry mails from Internet users, online creators have warned about the end of certain forms of creativity, people have taken to the streets in more than 30 places across Europe and more than 145 civil society organisations once again confirmed their opposition to the proposed measures.
In the light of these massive protests, the music industry which is the driving force behind the Article 13 upload filters is in damage control mode trying to downplay the effects of the measures it is calling for. Their fairly ridiculous attempt to position article 13 as “pro memes and mashups” was quickly debunked on social media and by European copyright scholars. The fact that scholarly opinion on the proposed changes, which largely overlaps with the perception by users, has been completely ignored by the members of the JURI committee is one of the driving forces behind the attempt to stop the JURI negotiation mandate this week.
So who is in favour of the measures approved by JURI and who is against them? Who should European lawmakers listen to when it comes to deciding on changes to the copyright regime that will have far-reaching effects for users, creators and businesses alike?
Most of these voices have been ignored by the debate in the JURI committee which has shown a particular disregard for independent expertise throughout the process. It is now up to all members of the European Parliament to decide if the Parliament should enter into negotiations with the Member States and the Commission based on the narrow view taken by the members of the JURI committee or on a view that takes these voices into account.
With the EU and other states looking to modernise copyright law for the digital era, education exceptions in copyright law are a hot topic. Particularly, the second paragraph of Article 4 of the proposed directive on Copyright in the Digital Single Market that gives room to educational licenses is being contested by educators, learners, and educational organisations. Canadian copyright law includes the doctrine of “fair dealing” — a unique version of a common exception. The European approach sees legal concepts determined by rightsholders through license agreements. Anxious to protect their position of power, representatives of rightsholders in Europe have often pointed at the Canadian exception as a dangerous example that has negatively impacted the educational publishing industry in Canada. These statements do not hold any merit. The Canadian doctrine offers both a solution to the legal question of how copyright exceptions can be drafted to the benefit of education and should inspire countries around the world who want to improve education exceptions.
The Canadian fair dealing copyright exception
The fair dealing copyright exception is a users’ right that allows for the use of a material that may infringe copyright, but only if it is “fair”. The Canadian Copyright Act limits fair dealing to the purposes of research, private study, education, parody or satire, criticism, and news reporting. In 2004, the Supreme Court of Canada provided 6 factors to determine “fairness”. Applied on a case by case basis, these factors are the purpose, characteristics, and amount of the dealing, and any available alternatives, the nature of the work, and the dealing’s effect on the work in the market on the copyright owner.
In 2012 the Supreme Court of Canada expanded the application of fair dealing to educational purposes. They ruled that copying short excerpts of copyrighted materials is reasonably necessary to carry out the purpose of research and private study. Even in an educational context, fair dealing allows for no more than 10% of a copyrighted text to be copied. The educational institution must have legal access to the initial copy of the work in order to use the fair dealing exception. However, the Copyright Act includes education exceptions in addition to fair dealing (educators can choose whichever happens to be more advantageous for their purposes).
The fair dealing provision under the Canadian Copyright Act is similar to “fair use” exceptions in other jurisdictions such as the US, Israel, the UK, and South Korea. Canadian fair dealing differs from US fair use in that it has a closed (but flexible) list of purposes to which it applies. Israel allows for up for 20% of a book to be copied under fair use. The Australian Law Reform Commission stated that copyright must leave breathing room for new works and productive uses that use other copyrighted material — a goal that can be achieved through fair use.
The European legal landscape is currently an inharmonious mix of exceptions. EU law gives Member States the option of creating education exceptions or limitations, but each Member State has implemented these differently (or not at all). For example, the Estonian education copyright exception is broad in scope and application, while Austria’s are much more restrictive.
The fair dealing myth
There is a myth going around that fair dealing destroyed the Canadian publishing industry. However, the challenges facing the publishing industry are the result of a complex, changing digital world — not fair dealing. The facts are that educational institutions have increased their spending on copyrighted materials alongside fair dealing, publishers profit margins have increased (even in education divisions), and licensing continues to be the foundation of access between publisher and user.
The Canadian fair dealing doesn’t provide enough rights for educational institutions to fully utilise the materials, meaning licensed materials continue to be necessary. At the University of Guelph, fair dealing accounts for only about one fifth of course e-reserve use. The majority of their use is comprised of site licences, open access, and transactional licences. The University of Guelph’s experience (similar to other universities’) demonstrates that fair dealing does not replace licensing — it only complements the educational experience.
The changes sustained by the publishing industry since 2012 are actually due to evolving use and purchase patterns, not the 2012 inclusion of education in fair dealing. Students and teachers are turning more and more to strictly digital use and libraries are purchasing the bulk of their new materials in digital form. Universities are increasingly opting to buy licences from alternate sources rather than purchase large packages of copyright materials from copyright collectives such as Access Copyright. But these changes are not hurting the industry, only changing it. Canadian publishers are reporting increases in digital revenue. Similarly, fair use has not stopped the US educational publishing industry from thriving.
Lessons to be learned
Provided fair dealing exceptions can keep up with technological changes, they offer a flexible approach to balance users’ and creators’ rights. The Canadian example allows courts to decide what constitutes fair dealing for any material, medium, and method of use while maintaining flexibility. This is much better than having legal concepts determined by rightsholders through license agreements, which is what we have been seeing in Europe. This is what makes Canada’s approach stand out – decisions about the scope and application of the exception are ultimately in the hands of the court, not rightsholders. In the European Union context, giving courts the discretion to make these decisions will lead to increased uniformity in access to education across the EU.
This morning the Legal Affairs Committee of the European Parliament (JURI) voted on the report on the proposed Copyright in the Digital Single Market Directive. You can read a broader analysis here.
JURI gave educators across the EU a gift in the shape of an improved educational exception – with a poison pill inside. The Compromise Amendment (CAM6) proposed by Rapporteur Voss was accepted. We are happy that the Commission’s flawed proposal for an exception that secures digital uses for education purposes has been fixed. Educators are given clarity about uses in digital environments, and the scope of the exception has been increased beyond educational establishments and their premises. There is also improved text that makes a contractual override of the exception impossible.
Yet, the poison pill remains: the Commission’s proposal in article 4(2) to give priority to licenses over the exception was adopted. We managed to secure improvement in the phrasing of this license priority: the licenses have to be tailored to the needs and specificities of the educational establishments. Nevertheless, a Member State can decide to switch off the exception, provided that a licensing scheme is in place in a given country. This means that over the coming years we could benefit from a new exception only to see it disappear – which would leave educators depending on remunerated licensing schemes.
Problems with license priority go beyond education
Licensing priority spells problems, not just for educators. It creates a precedent for overrides to any public interest copyright law exceptions. As such, it is a great victory for rightsholders. This reminds us of the “Licenses of Europe” process, in which the Commission and rightsholders tried to convince everyone that licensing is a much better tool for securing user rights than exceptions to copyright. While they failed to do so then, they seem to have won some ground in the copyright directive.
This dangerous precedent for users’ rights is even more alarming when we consider that it goes against the CJEU ruling on the issue of license priority. The Court of Justice of the European Union knew that giving priority to license offers was indefensible, as it would negate much of the substance and effectiveness of the exception or limitation and it would deny the user the right to benefit from the exception. Thus, the Court decided that the 3-step test did not require them to allow rightsholders to unilaterally force users to stop relying on the copyright exception when those rightsholders offered to conclude a licensing agreement with them. This decision represented a major win for users’ rights, and more so because in the US users may not be able to rely on fair use when reasonable licensing options are available.
If we round up today’s vote for education we are happy about the improvements to the exception but mourn what could have been and fear the consequences of this license priority. The fight is not over yet. There will possibly – likely – be a plenary vote in the Parliament where this article, as well as the other disappointing results on articles 11 & 13, could still be challenged.
This morning the Legal Affairs Committee of the European Parliament voted on the report on the proposed Copyright in the Digital Single Market Directive. The results are in and they are not pretty: MEPs have adopted Article 13 which would force open platforms operating in Europe to install upload filters. They have also adopted the controversial press publishers right (art 11). As a bonus to rightsholders they granted more rights to “sports event organisers” and adopted a provision intended to force image search engines to pay for displaying thumbnail images as search results.
This amounts to a massive power grab by rightsholders who will enjoy much more control over how we use the Internet to communicate, share, create and inform ourselves. It is a big step away from an open Internet towards an Internet that functions as a distribution channel for mainstream culture. It is a huge loss for European cultural diversity and the freedom of expression online.
It is telling that the MEPs in the JURI committee have also voted against all attempts to give users more rights. Proposals to introduce EU wide freedom of panorama and to allow the use of protected works in User Generated Content (both of which would merely bring the law in line with reality) were voted down. The MEPs adopted a number of small improvements for users in the fields of education, access to cultural heritage and with regards to Text and Data Mining but most of these come with significant drawbacks.
The education exception contains a license priority clause that allows rightsholders to turn off the exception and dictate problematic licensing terms to educational users, which creates a dangerous precedent for users’ rights and goes against the CJEU ruling on this issue.
The Text and Data Mining (TDM) exception is limited to scientific research purposes only. The expansion that would open TDM to everyone for every purpose (which is crucial for the development of technologies such as artificial intelligence in the EU) is merely optional and will not apply across the EU as a whole.
Taken as a whole, the JURI committee’s vote shows an utter disregard for the rights of citizens in the digital environment. It is telling that both the Civil Liberties and the Consumer Protection committees have prepared much more balanced reports that have been completely ignored by the members of the Legal Affairs committee.This shows that lawmakers still treat the rights and interests of citizens and creators as spare change in the the fight between big content and big tech.
Today’s round has clearly gone to ‘big content’ in spite of warnings from pretty much anyone other than the rightsholders that this outcome will have disastrous consequences for the open Internet and our freedom of speech. Citizens’ freedom of expression should not be the function of an arrangement between rightsholders and big technology companies. It is a right that needs to be defended on its own merits and it is extremely worrisome that EU lawmakers have effectively decided to give big technology companies – that are based outside of the EU – the responsibility to decide how European citizens can express themselves online.
Tomorrow the Legal Affairs Committee of the European Parliament (JURI) will finally vote on the proposed Copyright in the Digital Single Market proposal. The outcome of this vote will define the European Parliament’s negotiation position as it enters into trilogue negotiations with the European Commission and the Council. Although more than a thousand amendments have been proposed, it is clear that the European Parliament has missed the chance to demand a forward-looking copyright reform that empowers Internet users and creators and improves access to culture and information. With an eye on tomorrow’s votes, these are the three immediate challenges facing the members of the JURI committee:
#1 Save the Internet
For more than a year the discussion in the European Parliament has narrowed down on a number of key topics. The most attention has gone to those areas where the ideas introduced by the European Commission have the potential to break the open Internet and limit freedom of expression and the free access to information. Both Articles 11 and 13 remain hotly contested to this very moment and it is important that you continue to tell the members of the JURI committee to Save Your Internet by voting against the compromise proposals proposed by the Rapporteur, Axel Voss, and support the alternative compromises proposed by the Greens instead.
#2 Expand user rights and protect the Public Domain
On a more positive note there are a number of issues where the JURI MEPs can make a positive difference. The Commission’s proposal was a huge disappointment with regard to empowering users and protecting the Public Domain but members of Parliament have worked hard to put proposals up for vote that would correct this. During tomorrow’s vote the JURI MEPs should vote for the alternative compromise amendments that would introduce Europe-wide exceptions allowing anyone to take and share pictures of artworks located in public spaces (the so-called freedom of panorama) and to use pre-existing works in remixes and other forms of “user generated content”. In addition, MEPs should vote in favor of the compromise amendments on articles 7-9 that strengthen the proposed mechanism that would allow cultural heritage institutions to make available out of commerce works. Lastly, the compromise amendment for article 5 contains a recognition of the principle that reproductions of works in the public domain should stay in the public domain.
#3 Fix the most glaring flaws of the Commission proposal
Finally, there are a number of issues where the Commission’s proposal was severely lacking and where the members of Parliament have not managed to put forward a response that fixes these flaws. As proposed by the European Commission, both the exception for Text and data Mining and the exception for education were at best mixed blessings and, unfortunately, the Parliament has not found a way to fully address their shortcomings.
The proposed optional exception for TDM that applies only if the right has not been reserved does not constitute more than a band-aid on the gaping wound caused by the Commission’s proposal for an limited exception (that, in effect, prevents anyone except researchers from engaging in Text and data mining). Given that there are no more substantial solutions on the table we still encourage MEPs to vote for the compromise amendments on articles 3 and 3a even though we are convinced that the only sensible option is to embrace “the right to read is the right to mine” approach.
With regards to the education exception, the European Parliament’s compromise amendment fails to address the core shortcoming of the Commission’s proposal. The new mandatory exception should improve the very fragmented existing legal framework in the EU and benefit learners and educators alike. Unfortunately, the compromise amendment up for vote tomorrow leaves intact the licensing override that will negate the purpose of having a mandatory exception. We will continue to advocate for limiting reliance on licensing as a method to ensure access to educational materials. It has become clear from our own research that licenses do not benefit education. They impose burdensome obligations on schools and include unfair or even abusive terms.
Time is running out to tell the MEPs in JURI to act. Tell them to back stronger exceptions, safeguard the public domain and save the Internet via saveyourinternet.eu or changecopyright.org now!
Today, we publish joint conclusions on better copyright for higher education and research together with ETUCE / EI federations of teachers’ trade unions and EFEE, the European Federation of Education Employers. This document is an outcome of a joint high level conference organized on 11 April 2018 in Brussels, with the financial support of the European Union Intellectual Property Office (EUIPO).
The event marked for us an important opportunity to discuss with education stakeholders how copyright law can support sound educational policy. This been the goal of our Copyright for Education project, initiated two years ago. Through this project, we have been aiming to strengthen the visibility and position of education stakeholders in the copyright reform debate – in particular with extent to issues like the education exception, which affects them directly.
This joint initiative was coordinated by ETUCE, also with the goal of lobbying for good copyright for education during the vote in the European Parliament on 20 June. The shared conclusions from the conference partners stress that:
#1: A genuine copyright exception
Educators would benefit from an EU-wide education exception – without mandatory remuneration – , which educators can rely upon across the European Union and which defines a minimum standard. Removing copyright restrictions on the digital use of illustrative materials including textbooks for educational purposes would increase legal certainty as this would reduce the financial burdens on education systems and institutions.
#2 Copyright and social dialogue
The European Commission should ensure that social partners are consulted in the national implementation of the EU copyright directive. The selection of works for teaching and learning as well as related quality assurance measures need to take place at national level, as this is an exclusive national competence of Member States.
#3: Balance between the rights of teachers as users and the rights of teachers as creators
The new EU-wide exception should balance the rights of creators and users. Students, teachers, school leaders, researchers and other educational personnel have an interest in fair remuneration and correct attribution as well as in making knowledge accessible for public interest activities including education and research.
#4: Remuneration should not be mandatory
Payments should therefore remain optional and any changes to this model should be subject to consultation with the respective Ministries of Education.
#5: Closed-door policy
An EU-wide exception for non-commercial educational purposes that cannot be sidelined by licenses and that cannot be overridden by a private contract but that at the same time respects successful national Copyright models in certain EU countries is crucial. An EU-wide exception that includes all relevant providers of education, including libraries and other educational establishments, and an exception that permits the diversity of educational uses – both digital and analogue – of copyrighted content is fundamental.
The day after tomorrow, the Legal Affairs (JURI) Committee will vote on Copyright in the Digital Single Market. The educational exception in the Directive is not what we hoped when the copyright reform process started. The European Commission promised – in its DSM strategy – to reduce differences between copyright regimes and to provide greater legal certainty for cross-border use through harmonised exceptions. The Copyright in the DSM Directive furthermore proposed to reduce transaction costs for users, including educators and educational establishments.
These promises have not been met.
This is why we sent a policy letter to all members of the JURI committee asking for a better copyright for education last week. We hope this will help the committee members remember what is at stake for education in this vote, and that they will support an open, broad and flexible exception.
In the current proposal article 4 allows for an override of the exception with licensing mechanisms – which benefits rightsholders, but increases transaction costs, cause legal uncertainty for cross-border use and leads to a lack of harmonisation of copyright law, as it applies to education.
Our recent study of 10 licensing schemes for educational uses (in France, the United Kingdom and Finland) shows that (i) licences restrict the scope of protection of the educational exceptions, (ii) licenses grant questionable rights to rightsholders, and (iii) licenses impose burdensome obligations on schools.
We are concerned that the language of the new education exception will not be able to achieve its purpose of allowing cross-border use because it only allows the use within an educational establishment and within an electronic environment. This will not facilitate cross-border use across institutions and across countries.
In the letter we ask MEPs to support a mandatory exception that is the same in each country, for non-commercial education that facilitates cross-border sharing, without any licenses or compulsory remuneration attached by force of law.
106 million European students, 8.3 million European teachers, and 40% of adults who continue to learn should be supported in their learning efforts. Educational policy should not be endangered to secure narrow interests of educational publishers and other rightsholders.
With the discussion of the EU copyright reform proposal in full swing (see #SaveYourInternet on twitter) ahead of next week’s vote in the European Parliament, more and more experts are coming out to warn about the negative consequences of Article 13 of the proposed directive.
On Tuesday this week a group of more than 70 people who have played important roles in building the internet and developing it into the vibrant cultural space that it is today came out with an open letter addressed to the members of the European Parliament. Tim Berners-Lee, Vincent Cerf, Mitchell Baker, Jimmy Wales and 70 others write:
As creators ourselves, we share the concern that there should be a fair distribution of revenues from the online use of copyright works, that benefits creators, publishers, and platforms alike.
But Article 13 is not the right way to achieve this. 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. […] The damage that this may do to the free and open Internet as we know it is hard to predict, but in our opinions could be substantial.
This leads them to the same conclusion that we had arrived at in our analysis of Article 13. The most sensible way to deal with Article 13 is to delete it entirely:
We cannot support Article 13, which would mandate Internet platforms to embed an automated infrastructure for monitoring and censorship deep into their networks. For the sake of the Internet’s future, we urge you to vote for the deletion of this proposal.
On Wednesday David Kaye, the United Nations Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, followed up with a letter that raises similar concerns with Article 13. Specifically, Kaye is troubled that Article 13 “would establish a regime of active monitoring and prior censorship of user-generated content that is inconsistent with Article 19(3) of the International Covenant on Civil and Political Rights.” The opinion of the Special Rapporteur is an important voice from an organisation that does not have a direct stake in this discussion and should therefore be considered seriously by lawmakers. From the letter:
Article 13 of the proposed Directive appears likely to incentivize content-sharing providers to restrict at the point of upload user-generated content that is perfectly legitimate and lawful […] the restriction of user-generated content before its publication subjects users to restrictions on freedom of expression without prior judicial review of the legality, necessity and proportionality of such restrictions. Exacerbating these concerns is the reality that content filtering technologies are not equipped to perform context-sensitive interpretations of the valid scope of limitations and exceptions to copyright, such as fair comment or reporting, teaching, criticism, satire and parody.
As we have argued before it would be irresponsible of the Parliament to sell out the freedom of expression, education and access to culture and information to the business interests of the publishing and entertainment industries. By now it pretty clear than Article 13 is considered a real danger by pretty much anyone except the entertainment industry which concocted this legislative monstrosity. It’s high time for MEPs to recognize that they are being led into a direction that will do grave harm to freedom of expression, the digital economy in the EU, and the internet as a medium for vibrant cultural exchange.
To help, send your MEPs an email, tweet, or phone call before the June 20 JURI vote (as in RIGHT NOW!) and tell them to delete Article 13 once and for all.