Spanish-language cartoon Tiranía (Tyranny). Superstition sits on the throne, advised by a priest and a devil by Claudio Linati, 1826. Wikicommons. Public domain.

Xnet (https://xnet-x.net/en/), an activist group working for civil rights in the Internet, is the founder member in Spain of the #SaveYourInternet coalition, which has among its participants groups such as the Electronic Frontier Foundation (EFF), European Digital Rights (EDRi) and others. We have come together to organise a campaign to inform the public about the hidden dangers of the new European Copyright Directive.

With the approval in the European Parliament of the final text of the Copyright Directive, which will be definitely put to the vote in a very few months’, the European Union has lost a historic opportunity to produce copyright legislation adapted for the Internet in the twenty-first century. What the European Parliament will finally vote on is a technophobic text, tailor-made for the interests of the copyright monopolies which, moreover, doesn’t guarantee the right of authors to have a reasonable standard of living as a result of their work.

If the law is eventually passed, it will be used for wholesale curtailment of freedoms and more censorship, in keeping with the bizarre idea that anything that doesn’t produce hard cash for the major players – which doesn’t mean authors! – has to be prohibited and eliminated.The amount of money the real authors receive in the end is zero or almost zero.

This is a tragedy for workers in the domain of culture who (with a few, brave, and praiseworthy exceptions) have once again been frivolously incapable of informing themselves about the real state of affairs. They have passively swallowed the version fed to them by their masters and, avidly playing the victim, have become the chief mouthpiece of freedom-killing propaganda without the slightest understanding that this is not going to enhance their rights but will do away with the rights of everyone.

Alarm bells started ringing almost two years ago when we discovered that, rather than being a proposal for an obsolete copyright law, the directive is being used as a Trojan horse to introduce surveillance, automatic data processing, government by opaque algorithms, and censorship without court orders, etc.

This threat to such basic rights as freedom of expression and access to culture and information lurks in ruses which are mainly hidden in two articles of the Directive:

Article 11: no link without a licence

Article 11, otherwise known as the “Linktax” article, has created a new economic “right” for magnates of the written press. This ‘right’, moreover, implies indefinitely restricting the possibility of citing the press online.

If this seems absurd, arbitrary and counterproductive, we invite you to read the proposal itself. This is an ambiguous text, described by the jurist Andrej Savin as “One of the worst texts I have ever seen in my 23-year-long career as a law scholar.” Given its muzzy formulation, the safest response for any platform will be not to link to any media publication without explicit permission.“One of the worst texts I have ever seen in my 23-year-long career as a law scholar.”

This perverse measure will be the equivalent, on a European scale, to the “Google tax”, which is already in force in Spain and Germany. Even its promoters were soon to regret it, when Google shut down Google News in Spain after it was approved. The Google tax is paradoxical and those responsible for initiating it know very well it won’t work in Europe. For example, Xnet revealed that the big German publishing company Alex Springer was paying itself – having linked up to pay itself – in an outlandish pretence that “everything’s fine”.

Where are they trying to go with this? What sense is there in this move by the press barons to push laws which prevent you from linking up to their content, disseminating it, and commenting on them? Is this just a mix of ignorance and greed, or something like shooting yourself in the foot?

There is certainly something of this involved, but we believe that this is a mix of ignorance and greed which, in the end, means cutting off your nose to spite your face (when you’re trying to damage someone else’s face). With laws like this, the press barons can engage in legal harassment to the point of closing down social aggregators and communities like Meneame or Reddit, eliminating any new competitor, consolidating their monopoly, and thus becoming the lone voice on the Internet, the only ones who speak. In short, they are aspiring to become a new kind of television.

Article 13: no uploading content without a licence

Platforms – from medium-sized providers of services storing subject material through to the giants of the Internet – will be considered responsible for any copyright infringement committed by their users, and they are bulldozed into taking preventive measures. In other words, this isn’t a matter of eliminating content but directly preventing people from uploading it.

Of course, nobody is forcing them to do anything. They are simply being made responsible for material uploaded by their users. It’s like a car salesman being held responsible for crimes committed by people who buy his cars. This can only end up with algorithmic upload filters being applied to absolutely everything or, in other words, prior, automatic, and massive Internet censorship.This can only end up with algorithmic upload filters being applied to absolutely everything or, in other words, prior, automatic, and massive Internet censorship.

Recently, YouTube prevented the pianist James Rhodes from uploading one of his own videos in which he is playing Bach. This kind of “error”, which always favours privatisation of the public domain, is the everyday reality for all authors who use YouTube.

And this isn’t just about the “errors” that lead to the privatisation of the public domain. It is about the difficulty or impossibility of uploading on the Internet any kind of derivative work: parodies, memes, remixes, fandom, satires, and so on or, in other words, the very essence of culture, political freedom and freedom of expression.

Repeating the medieval experience of the invention of the printing press

This whole setup, which looks like a science-fiction dystopia, an impossible attempt to lock the doors when the horse has bolted, or an exaggeratedly grim prophecy being spread by concerned activists, is already being implemented today on big platforms.

At present, there are two options:

The Spotify model

 In this case, the platform would acquire all national and international licences and then make all contents available unidirectionally in such a way that users can’t upload content. Even so, in the case of Spotify, one of the few giants with the resources to do this today, paying the copyright monopolies has raised its overheads so much that, despite its commercial success, its medium-term sustainability isn’t guaranteed. If this is the situation of Spotify, it’s not difficult to imagine what will happen to medium-sized Internet companies.

This model has another defect which is obvious to most artists. The amount of money the real authors receive in the end is zero or almost zero.

The Facebook/Google model

These new Internet monopolies refuse to share the cake with the old copyright monopolies and therefore opt for large-scale, automatic filtering of all content. They will find it easier to adapt to Article 13 since now they will only need to apply the filtering mechanisms before uploading takes place.

This technology, besides being opaque and exclusive, is very expensive. Since it will be obligatory, it will also mean that these giants are very unlikely to have competitors that have any chance of prospering.

Google has spent approximately 100 million dollars to create the technology that has so far enabled it to respond to copyright claims coming in from only 1% of its users.

The effect which these arbitrary regulations will have on free Internet conversation, on diffusion of culture and information, and access to them will be devastating.

Whose rights are at stake?

Authors’ rights (Droits des auteurs→ copyright) are important. But what are these rights? And which authors have them?

Any democratic proposal seeking widespread consensus and aspiring to guarantee the decent employment of authors without jeopardising the basic rights of citizens would need, finally, to take a bold stand against the copyright monopolies and management entities which are suspected of abuse when not directly investigated, tried, and condemned, as we succeeding in doing with SGAE (the Spanish Society of Authors and Publishers).

It should also take as given the fact that the concept of the author or medium has changed in the last twenty years. Since the earliest days of Web 2.0, the content generated by users has evolved from being an interesting social experiment to the digital reality in which we are immersed day in day out.

In a society like that of Spain, for example, content generated by entities which were once “big” media now account for less than 5% of Internet traffic. The EU must respect citizens as content generators and not regard them simply as people who steal content generated by the elite.The EU must respect citizens as content generators and not regard them simply as people who steal content generated by the elite.

No single company, medium, or author has written Wikipedia, or turned the Web into the repository of gazillions of videos, or generated hundreds of millions of tweets per day. We – the people – did this. The Internet doesn’t belong to them.

The threats skulking behind the Copyright Directive are part of an attempt to stuff the genie back into the bottle and embark on an inquisition that would allow the oligarchs to take control of the Internet. Our politicians and big company bosses are envious of the Chinese model.

Open architecture

The initial idea of the fathers and mothers of the World Wide Web and the Internet, as we know it, this idea of an open architecture for sharing links without restriction, was crucial to its success. And it would be radically undermined if the directive is approved.

Now the EU wants to create an Internet with a licence. And since we are a civilised society, they can’t call it censorship so they say “copyright”.

In the final vote, all the power and wealth will be on one side. We, the people, who are on the other side ­– in favour of freedom of expression, an open Internet, and copyright laws adapted to the twenty-first century, which will enable authors to make a decent living and not have to scrabble for crumbs dropped from the table of the Internet moguls ­ – will be vilified, slandered as thieves, hackers and pirates, and absurd allegations will be made against us.

This situation has happened before. And what it most clearly evokes is the relationship between the invention of the printing press and the censorship of the Holy Inquisition.

Inscribed in pen and ink. “Spanish Inquisition” by Thomas Rowlandson (1756 – 1827). Wikicommons/ Google Cultural Institute. Some rights reserved.

What is the responsibility of artists and (left) political parties?

The vote has not yet been cast. We have a few months to get everyone to understand the magnitude of the danger. We can win this battle. We have already won in extremis in other situations like the fight for net neutrality and ACTA, and we can do it again.

What would help:

• –  Artists who will step forward and say, “NOT in my name”.

• –  A clear, effective, and non-opportunist stance from the left in favour of an open Internet and freedom of expression.

The left instead tends all too often to cultivate a technophobic position which contributes towards censoring narratives. The case of Spain is paradigmatic. The PP (right-wing party) and PSOE (“socialist” party) voted and will vote in block for whatever the Copyright Monopolies and the SGAE tells them to vote for, which is to say what most favours control and censorship.

But the example of the left-wing electoral alliance Unidos Podemos is also instructive. They joined the SaveYourInternet campaign at the last moment in order to coopt these citizen-activists. The next day, one Anova and two Izquierda Unida members of parliament abstained from voting and nobody in either party as much as batted an eyelid. It would seem that none of our politicians take these basic rights very seriously.

We citizens who are active in battling for civil rights on the Internet will meet our obligation and fight the good fight. We’ll stop this attack on the Internet and democracy sooner or later, with or without the help of the “artists” or the “parliamentary left”, but not without bitterly calling attention to the dangerous future that is looming for freedom of expression and information, and our other freedoms in the new context of the digital age in which, again and again, the tool is being destroyed and the messenger killed in order to preserve a status quo that must not continue.

Heretics brought before the tribunal of the Inquisition, Seville by F.Moyse, 1870. Wikicommons. Public domain.

Photo by Madame Etepetete

The post The EU call it copyright, but it is massive Internet censorship and must be stopped appeared first on P2P Foundation.

A prominent French whistleblower and Spanish anti-corruption activists who triggered an investigation of a former International Monetary Fund chief announced Thursday they are designing a digital payment system aimed at excluding middlemen companies that make money from online purchases.

Herve Falciani and the Xnet group said their peer-to-peer payment system would work like PayPal on a local basis within European cities for citizen payments to participating businesses and governments.

Falciani and Xnet said it will be nonprofit, with a pilot program in Italy starting in March. They said excluding online payment companies would mean savings for local consumers and businesses.

Following a worldwide wave of ongoing corruption probes sparked by his document leaks from the HSBC bank, Falciani said he next wants to prevent online payment companies from profiting so much and transform the transactions to “keep money local.”

“There was a time for leaks, there was a time for politics, and now it is time for business.”

Read more on the Associated Press website.

Connect with the author on twitter @guyjames23

Photo by Backbone Campaign

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Xnet launches a video campaign at European level, in collaboration with numerous civil society organizations such as Corporate Europe Observatory, EDRi, la Quadrature du Net, Health Action International, P2P Foundation, Initiative für Netzfreiheit, Commons Network, to expose the threats of the new legal doctrine on Trade Secrets for whistleblowers, freedom of press and information, workers and consumers, health and the public interest.

From Xnet’s point of view and analysis, the approval of the current Trade Secrets directive text and development of this new legal doctrine would lead to very serious threats for citizens who undercover corporate abuses:

• A situation of unfair asymmetry between citizens and institutions with regard to the protections they have when reporting corporate misconducts and illegal behaviours. It leaves individual citizens and whistleblowers unprotected even though most denounces against corporate abuses are driven by them.
• It takes for granted the legal persecution of any person who reveals trade secrets, despite in the end the courts rule in their favor.
• Whistleblower protection is framed as an exception to trade secret protection, rather than being treated as a legal norm.
• The uncertainty about the legal actions that they may suffer and its outcome has a chilling effect that would prevent people in possession of information revealing corporate misconduct or wrongdoing from reporting it.
• The burden of proving that the disclosure was in the public interest lies on the whistleblower who have to convince the legal and administrative authorities.
• The long and expensive procedures will lead to costs that corporations can easily face but whistleblowers can not afford.
• Precautionary measures would allow private companies to prohibit the disclosure of documents and proofs during the legal procedure, hiding them from public opinion.
• Private companies can overuse legal measures to their advantage for the legal harassment of whistleblowers, former employees or competitors unless proven bad faith.
• This Directive only sets minimum standards, allowing Member States to even further protect Trade Secrets, with opportunities for companies to use the most favorable national regime for legal action in the EU.

Only the Greens voted against the directive in the recent vote of the Legal Affairs Committee. Neither GUE nor ALDE, S&D or the EPP opposed it.

# What is this legal doctrine?

Corporate lobbyists are using the context of the “economic crisis” as a justification to ensure that their commercial interests are given priority over the public interest.

The crisis as a perfect excuse for establishing corporate impunity and privileges that would otherwise be deemed unacceptable in democratic states under the rule of law.

A new doctrine that provides private companies with superpowers such as tools and legal guarantees to protect companies investments far beyond what is reasonable and that corporations can use to hide abusive practices, arguing the need to protect their trade secrets.

In fact, European corporations already possess protections, that are already excessive in many cases, through patent laws, other intellectual property laws and unfair competition laws.

This legal approach, in which the benefits of “trade” transcend all other social and political criteria, is what lobbyists have attempting to ensure through free trade agreements such as TTIP, CETA and TiSA. With the justification of promoting “trade”, these agreements are negotiated behind closed doors and outside the sphere of democratically elected parliaments.

We cannot allow this vision to become further entrenched as the predominant logic in a world where corporate and financial interests already dominate all others. It is important to stay vigilant and prevent legislation from developing in this direction.

# The Trade Secrets Directive

When on November 28, 2013 the European Commission’s proposal for a “Trade Secrets” directive was published all the alarms went off.

The directive contains disproportionate protection for “trade secrets” that creates a categorical security shield from access to all information, communications and data held by a company, covering data as preposterous as the type of skills that company employees have acquired.

This new offensive use of trade secrets would allow multinational companies to legally hinder the access to data relating to criminal activities and malpractices, extending it even to the realm of justice.

A clear recent example to show how dangerous this disproportionate protection of trade secrets concept is, can be found in France. A man died during clinical trials. Scientists are asking for transparency and access to all clinical trial data to find our what happened. The company is opposing it, claiming trade secret protection.

By arguing that investment protections require a level of protection of trade secrets that is absolute, these interests would become invulnerable to public scrutiny.

After more than two years of pressing, organizations defending freedom of expression and journalism (with the sizeable participation of journalist associations from France and Sweden) managed to reduce some of the most dangerous points for freedom of press that where present in the initial text of the European Commission.

However, whistleblowers remain very unprotected in the current version of the proposed Directive. Individual citizens who publicly denounce corporate abuses would be legally persecuted and harassed even if the safeguards and exceptions currently provided by the directive are fulfilled.

For this reason we are launching a campaign to expose the dangers and corporate interests behind the narrative according to which trade is considered a be-all and end-all to social and economic challenges.

It is essential to prevent that the argument of trade secret become a superpower used by corporations to crush public interest, transparency and the disclosure of relevant information.
Help us to spread the word by reaching out to as many people as possible.

Help us to spread the word by reaching out to as many people as possible.
 

# More protection for whistleblowers is needed

Whistleblower vulnerability is rooted in the fact that explicit legal protections are absent in the legal framework of the European Union. We must urge legislators to introduce legislation to protect the activity of anonymous citizens who, having experienced abusive practices or witnessed corruption, decide to act by publicly disclosing information to denounce it.

Xnet and the Anticorruption Group of the Spanish State drafted a Decalogue on the Protection of Whistleblowers:
http://xnet-x.net/en/decalogue-protection-whistleblowers/
 

# TTIP – Inclusion of Trade Secrets in Trade Agreements

The new legal regime of the trade Secrets directive would be closer to the USA’s, where new federal legislation is also being passed. The rush for approving these new laws on both sides of the Atlantic is due to their intentions to include Trade Secrets in the TTIP where, if the treaty is approved, not only would it become irrevocable but also its combination with the ISDS mechanism would be devastating.
 ——————
 
# Excerpts from articles to which we refer:

Article 4: Exceptions

Member States shall ensure that the application for the measures, procedures and remedies provided for in this Directive is dismissed when the alleged acquisition, use or disclosure of the trade secret was carried out in any of the following cases:

(…)
b. for revealing a misconduct, wrongdoing or illegal activity, provided that the respondent acted for the purpose of protecting the general public interest;
(…)

• The scope of what is considered to be wrongdoing / misconduct / illegal activity should be clarified with a non-exhaustive list of examples to prevent the chilling effect on whistleblowing activity.

 
Adoption by the Member States

Article 1: Subject matter and scope
This Directive lays down rules on the protection against the unlawful acquisition, use and
disclosure of trade secrets.
Member States may provide, in compliance with the provisions of the Treaty, for more far-reaching protection against the unlawful acquisition, use or disclosure of trade secrets than that required in this Directive, provided that compliance with Articles 2a, 4, 5, Article 6(1), Article 7, the second sub-paragraph of Article 8(1), Articles 8(3), 8(4), 9(2), Articles 10, 12 and Article 14(3) is ensured.

• This Directive only sets minimum standards, allowing Member States to even further protect Trade Secrets.

The scandalous criminal measures foreseen by the French government in January 2015, when it tried to introduce key elements of this Directive into French law, could be re-introduced at Member State level with this text, with opportunities for companies to use the most favorable national regime for legal action in the EU.
 

Precautionary measures

Article 9: Provisional and Precautionary Measures

1.Member States shall ensure that the competent judicial authorities may, at the request of the trade secret holder, order any of the following provisional and precautionary measures against the alleged infringer:

(a) the cessation of or, as the case may be, the prohibition of the use or disclosure of the trade secret on an provisional basis;

 
Trade Secrets Directive’s current text:
http://www.europarl.europa.eu/meetdocs/2014_2019/plmrep/COMMITTEES/JURI/DV/2016/01-28/sn01019_EN.pdf

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