Content filtering, bots scanning for copyrighted content and then blocking what they find, will seriously harm creativity in Europe. That’s why artists are joining together to speak out against it.

Continuing our coverage of the European Parliament’s heinous proposition for filtering uploaded content, Ruth Coustick-Deal consults with the artistic community. Republished from OpenMedia.org.

Ruth Coustick-Deal: Last week we asked our community to let us know how people in their profession will be harmed by content filtering (Article 13) and the link tax (Article 11).^[1]We’ve heard from more than 1000 people already, and more responses are still coming in every day.

Now it’s time to take the message to the person at the front of this decision. Axel Voss MEP is both in charge of the key committee and a leader in his party.

Axel Voss MEP today published his “compromise” (in name only) today. Essentially he kept Oettinger’s original flawed proposal. Despite public voices. Despite tens of thousands of people speaking up against. Despite robust academic critique. We are still faced with unaccountable censorship machines.

Axel Voss MEP needs to directly hear why the public are so opposed to automated censorship machines. He has the most influence on this law. He has all this power, and is still clinging on to broken, unpopular proposals.^[2]

If MEPs like Voss want to the web to work for artists, they need to start listening to the individuals, not just the big industry groups.

They try to tell us that automated content filtering, bots scanning for copyrighted content and then blocking what they find, will help creativity flourish. We know that it won’t. Consider Adam Neely.^[3] A YouTube-based jazz teacher couldn’t play short snippets of music to analyse them. Because the music was owned by Universal Music Group; they got it blocked and taken down. We will see more and more of this kind of censorship, which will take place across Europe, if these filters are legally demanded.

That’s why we are working with the Create/Refresh coalition.^[4] They are a network of artists from across Europe who are opposed to Article 13. These creators produced a video which illustrates all of their talents, and their unity against these rules. Watch the video to find out more.

We need Axel Voss to see this! Let’s make sure he can’t ignore it, and knows that the very people he claims to be speaking for, oppose him.

This is just a small sample of art made possible because we don’t have these excessive restrictions that do nothing for creators.

Please give them a voice. Share the video with Axel Voss on Facebook and Twitter demanding he rejects content blocking and the link tax.

We know that tweeting at MEPs can be hugely effective if we raise a chorus too loud to ignore – MEPs pay attention to what people are saying on social media. Lets show Axel Voss that artists are not asking for his “protection”, what they want is freedom to create.

Footnotes

[1] Help our censorship impact research AND speak to your MEPs. Source: OpenMedia
[2] Green light for upload filters: EU Parliament’s copyright rapporteur has learned nothing from year-long debate. Source: Julia Reda
[3] When I want to teach but can’t, thanks to Universal Music Group. Source: Adam Neely
[4] Create Refresh Coalition website.

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Julia Reda: Ever since the European Commission presented its hugely controversial proposal to force internet platforms to employ censorship machines, the copyright world has been eagerly awaiting the position of the European Parliament. Today, the person tasked with steering the copyright reform through Parliament, rapporteur Axel Voss, has finally issued the text he wants the Parliament to go forward with.

It’s a green light for censorship machines: Mr. Voss has kept the proposal originally penned by his German party colleague, former Digital Commissioner Günther Oettinger, almost completely intact.

In doing so, he is dismissing calls from across the political spectrum to stop the censorship machines. He is ignoring one and a half years of intense academic and political debate pointing out the proposal’s many glaring flaws. He is discarding the work of several committees of the Parliament which came out against upload filters, and of his predecessor and party colleague MEP Comodini, who had correctly identified the problems almost a year ago. He is brushing off the concerns about the proposal’s legality several national governments have voiced in Council. And he is going against the recently published coalition agreement of the new German government – which is going to include Voss’ own Christian Democratic Party – where filtering obligations are rejected as disproportionate.

Photo © European Union (used with permission)

[Read Axel Voss’ compromise proposal PDF]

This is a “compromise” in name only. Mr. Voss’ proposal contains all the problematic elements of the original censorship machines idea, and adds several new ones. Here’s the proposal in detail:

1. Obligatory impossible-to-get licenses

The proposal says: All apps and websites where users can upload and publish media are required to get copyright licenses for all content. These platforms are considered to “communicate to the public” all those user uploads, which means that the platforms would be directly responsible for copyright infringements committed by their users, as if it were the platform’s employees themselves uploading these works.

This is a bizarre addition to the Commission proposal, which would be impossible to implement in practice: Who exactly are the platforms supposed to get those license agreements from? While there may be collecting societies representing professional authors in a few areas such as music or film, which may be able to issue a license covering the works of many individual authors, other sectors do not have collecting societies at all.

Imagine a platform dedicated to hosting software, such as GitHub. There is no collecting society for software developers and nobody has so far seen the need to found one. So where will GitHub, which undoubtedly hosts and gives access to (copyright-protected) software uploaded by users, get their copyright license from? They can’t enter into license negotiations with every single software developer out there, just because somebody might someday upload their software to GitHub without permission. And without that impossible-to-get license, this law says they will be directly liable as soon as somebody does upload copyrighted works. That’s a sure-fire way to kill the platforms economy in Europe.

And these impossible-to-get licenses cover only non-commercial use: If the platform acquires a license as prescribed, then non-commercial uploaders won’t be liable. Uploaders acting for commercial purposes however, such as companies with social media accounts, can still be sued by rightsholders.

2. The censorship machine is here to stay

The proposal says: All platforms hosting and providing public access to “significant amounts” of user-uploaded content have to prevent copyrighted content that rightsholders have identified from being uploaded in the first place.

There are only two ways to do this: (a) hire an army of trained monkeys to look at every individual user upload and compare it manually to the rightsholder information or (b) install upload filters. The article that creates this obligation no longer mentions content recognition technologies explicitly, but they are still mentioned in other parts of the text, making it clear that filters are what Voss has in mind.

There is no definition what “significant amounts” are supposed to be. The Commission was widely criticised for requiring censorship machines on platforms with “large amounts” of content, following the misguided idea that only large companies with significant resources available to dedicate to the development of upload filters host large amounts of content, completely ignoring the wide diversity of popular specialised platforms out there: Community-run platforms like Wikipedia, niche platforms like MuseScore (for sheet music) and many startups host millions of uploads, but would struggle to implement or license expensive filtering technology.

Why Voss believes replacing the word “large” with the potentially even broader “significant” is supposed to improve anything remains completely unclear.

3. A tiny problem with fundamental rights

The proposal says: The filtering measures must not entail any processing of personal data, in order to protect users’ privacy

The only indication that Mr. Voss has paid attention to any of the public criticism at all is that he acknowledges there may a tiny problem with fundamental rights. Indeed, the European Court of Justice has in the past ruled that an obligation to filter all user uploads violates the fundamental rights to privacy, freedom of expression, freedom of information and freedom to conduct a business. Voss picks one of those fundamental rights seemingly at random and adds a provision aimed at protecting it. Admirable as this may be, it is also in direct contradiction to what comes next:

Because filters will invariably delete content that is legal, for example under a copyright exception, users are supposed to have access to a redress mechanism to complain about overblocking. But how exactly is the platform supposed to offer the user that redress if it is not allowed to process any personal data? Simply recording which user’s uploads have fallen victim to the filter already requires processing of personal data. How can a user complain about a wrongful takedown if the platform is not allowed to keep records of what the filter deleted in the first place?

It gets better: Guess who should decide about what happens with the users’ complaints about wrongful takedowns? The rightsholders who asked for the content to be blocked in the first place. Surely they will turn out to be an impartial arbiter.

At least, users are supposed to be able to go to a court if the redress mechanism fails. However, this may end up being ineffective, because copyright exceptions do not constitute legal rights against the rightsholders, so a court may decide not to require a platform to reinstate previously deleted uploads, even if they were legal under a copyright exception.

What users need is a clear legal rule that the copyright exceptions constitute users’ rights – just like the previous copyright rapporteur Therese Comodini had suggested.

4. Very specific general monitoring

The proposal says: Checking all user uploads for whether they are identical to a particular rightsholder’s copyrighted work does not constitute forbidden “general“ monitoring, but is “specific“.

EU law forbids any laws that force hosting providers to do “general monitoring”, such as checking every single file uploaded by every user all of the time. Voss simply postulates that upload filters would not break that rule and writes that only “abstract monitoring” should be forbidden, which presumably means randomly looking at uploaded files without looking for anything in particular.

This argument has already been dismissed by the European Court of Justice: The European Commission tried making it in defense of upload filters in the past – and lost (Paragraph 58 of this French-language Commission contribution to the European Court of Justice case Scarlet vs. SABAM).

5. Few exceptions

The proposal says: The filtering obligation should not apply to Internet access services, online marketplaces such as ebay, research repositories where rightsholders mainly upload their own works such as arXiv, or cloud service providers where the uploads cannot be accessed publicly, such as Dropbox.

In a last-ditch attempt to redeem himself, Voss provides a welcome clarification that the obligation to filter does not extend to certain businesses. But this exception, not legally binding since it is in a recital rather than an article, does not apply to the obligation to license.

The listed platforms would still have to get licenses from rightsholders provided that the user uploads are publicly accessible, because they would still be considered to be communicating to the public. But how are these platforms supposed to shield themselves from lawsuits by rightsholders if they can’t get a license for all possible content that may be uploaded? They will have to resort to a filter anyway.

6. Critical parts remain unchanged

Large parts of the most widely criticised elements of the Commission proposal were left completely unchanged by rapporteur Voss, such as the infamous Recital 38 (2), where the Commission misrepresents the limited liability regime of the e-commerce directive, essentially stating that any platform that so much as uses an algorithm to sort the uploaded works alphabetically or provides a search function should be considered as “active” and therefore liable for its users’ actions. The only change that Mr. Voss has made to this section is cosmetic in nature.

* * *

It’s not too late to stop the Censorship Machines!

Fortunately, Axel Voss does not get to decide the Parliament position on his own. He will need to secure a majority in the Legal Affairs (JURI) committee, which will vote in late March or April. Two other committees have already come out strongly against filtering obligations, and several JURI members have tabled amendments to delete or significantly improve the Article.

Now it’s time to call upon your MEPs to reject Mr. Voss’ proposal! You can use tools such as SaveTheMeme.net by Digital Rights NGO Bits of Freedom or ChangeCopyright.org by Mozilla to call the Members of the Legal Affairs Committee free of charge. Or look for MEPs from your country and send them an email.

But most importantly, spread the word! Ask you local media to report on this law.

To the extent possible under law, the creator has waived all copyright and related or neighboring rights to this work.

Photo by Thomas Hawk

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Julia Reda: For months now I’ve been raising the alarm about the plan to limit the freedom to link that has been slowly but surely making its way through the EU legislative process.

The European Commission and the publishing lobby have accused those of us fighting to save the link of exaggerating the danger that the planned extra copyright for news sites poses.

The link wasn’t under attack, they assured us. But it has now become undeniable that it is.

Breaking the web

Today, a new lobby joined the fray – but apparently didn’t get the memo about sugar-coating the game plan. In an open letter published in Le Monde – but, fittingly, behind a paywall – large news agencies including Germany’s DPA und France’s AFP call for the extra copyright to also extend to their products. They mince no words describing what they demand politicians crack down on:

They offer internet users the work done by others, the news media, by freely publishing hypertext links to their stories. […] Solutions must be found. […] We strongly urge our governments, the European parliament and the commission to proceed with this directive.

There it is, black on white: They fully expect and intend for this law to break the core functionality of the web. They want to outlaw pointing to their articles without their permission. They want to charge for incoming links.

The letter suggests their concern is primarily with links from two particular sources: Facebook users and Google. But the law doesn’t discriminate – all links to news websites on the web would be affected by it in the same catastrophic way.

Killing innovation

Prof. Höppner, a professor of commercial law and IT law, and the lawyer for German publishers in a case against Facebook and Google, was similarly forthright at a hearing at the European Parliament last week:

This is a prohibition right. It is a right that makes sure there are not platforms coming up everywhere and anywhere that take advantage of content that has been published and make their business out of it. The first and foremost goal is to prevent these exploiting businesses – simply not have them.
(Watch the video recording )

This exposes the other goal the big publishing conglomerates hope to achieve: Killing off competition in the news sector. They don’t even want to give innovative startups the chance to pay their link ransom – they want to stamp them out.

Big publishers want to turn back time to an era in which people were loyal to a single newspaper they had a subscription to. They want visiting the front pages of their brands’ websites to be the only way we can find out what’s happening in the world. That requires eliminating apps and sites that provide what many readers prefer: A selection of links to news from multiple sources tailored to one’s personal interests.

Big publishers vs. everyone else

The fault line here does not run between journalism and online platforms, as lobbyists like to paint it: It’s between a few giant publishing houses and everyone else. Aggregators and social networks have created a level playing field that has allowed smaller, independent and special-interest news sources to grow. These sites reach the majority of their readership via links on social media and search engines, rather than through direct visits to their websites.

Unsurprisingly, innovative publishers and startups are up in arms, warning that the planned law, promoted as ensuring media diversity, would end up achieving the exact opposite: media concentration.

Requiring permission for links and suppressing new ways to stay informed: The extra copyright for news sites is nothing short of an attack on the open and decentralized web – in concert with the plan to force online platforms to install censorship machines.

It’s true that the news industry is in financial trouble. We need to think creatively about how uncompromising, in-depth journalism can be funded in the future – we certainly need it more than ever. But breaking the web and killing innovation is unacceptable, and would actually backfire on quality journalism and reduce media pluralism.

There is an alternative

The European Parliament and the Council will make a decision soon – between this law and a sensible alternative. Called the “presumption rule”, it would help publishers enforce existing copyrights without restricting linking.

The presumption rule fulfills what the European Commission has all along claimed to be the purpose of the law. Now that no doubt remains that the publishing lobby’s intentions go much further, the Commission needs to put its cards on the table: If it continues to push for the neighbouring right, it confirms that it too wants a “link tax”. If the goal is merely to allow publishers to enforce copyright, like they say, they should support the presumption rule.

The crucial vote is coming up in the Legal Affairs Committee (see the schedule here). In that committee, the conservative EPP group, the spokesperson for the liberal ALDE group and French S&D group members support the extra copyright. In the Council, the governments of France, Germany, Spain and Portugal are pushing for it.

If you are against this plan, the SaveTheLink campaign has a tool to contact your representatives – and spreading this article via links is and will stay free.

To the extent possible under law, the creator has waived all copyright and related or neighboring rights to this work.

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