The Closing of the Net  "original and valuable"  Times Higher Education

EU Copyright directive draft 2016




In what can only be called a policy bombshell, proposed new EU copyright rules will force social media sites to police content. A leaked version of a proposed new copyright directive seeks to impose draconian monitoring obligations any sites that support content uploaded by  users. If the leaked draft to be believed, content platforms will have to install content scanning systems to monitor and remove copyrighted material. In addition, they will have to  report back to rightsholders.

The leaked draft has been circulating online today. The draft also containts further measures are being designed to remove payment facilities from any sites that host free or user uploaded content. Such measures could hit social media and content platforms as well as bit torrent and streaming media sites. Additionally, newspaper publishers will be legally allowed to claim licence fees for links to newsarticles, with a 20-year copyright protection period. This is the so-called 'Google tax' that the large news organisations have been lobbying for.

With the exception of the so-called 'follow the money' approach, the European Commission has kept these proposals very quiet. A previous leak of the accompanying Communication, gave no hint of the social media policing bombshell. This suggests the possibility of internal rifts in the Commission, possibly right at the very top. It is deja vue of the 2009 Telecoms Package (see the full story in my book  The Copyright Enforcement Enigma ).

The bombshell proposal is in Article 13 of the leaked draft directive. It calls for social media platforms to work 'in co-operation' with rightsholders. In particular, it calls for them to prevent the availability of copyrighted content on their sites. This means they will be expected to monitor content on a permanent basis, and to continuously implement take-downs.

Information society services that store and provide to the public access to large amounts of works or other subject matter uploaded by their users shall, in co-operation with rightsholders, take appropriate and proportionate measures to ensure the functioning of agreements concluded with rightsholders and to prevent the availabiity on their services of works or other subject matter not covered by such agreements, including through the use of effective content identification technologies.

The use of the word 'co-operation' is significant. This signals that the social media platforms are to work in conjunction with rights holders, and to form their own agreements with them. They are to be supervised by Member State governments, who are also to put in place procedures for users complaints and redress. Such agreements are highly problematic, and historially, they do not work – noting the French failed Hadopi law and the UK's disastrous Digital Economy Act that never even got off the ground. (See A Copyright Masquerade: How Corporate Lobbying Threatens Online Freedoms )

The draft's targeting of sites infringing on a commercial scale is also problematic, since the definition of commercial scale – or lack of it – was one reason why the European Parliament rejected ACTA in 2012.

From a policy perspective, these proposals cannot comply with existing EU law, nor would they be compatible with freedom of expression rights.

The other proposals are similarly problematic. The Google tax has been proven to be of little benefit, and follow the money can be error prone, targeting innocent people.

However, the draft directive  will have to go through the scrutiny of  the European Parliament, which  does not have to accept it. There is now a history of the Parliament rejecting online copyright proposals, in the 2009 Telecoms Package and in the ACTA of 2012. Likewise, the Parliament fought back and won on net neutrality only last year. It remains to be seen what will happen to this  latest attempt by the Commission to impose Internet restrictions for the benefit of copyright holders.

 

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For more on copyright policy see my new book The Closing of the Net  which discusses copyright policy, including the 2009 Telecoms Package and court blocking orders.

I will speaking on intermediary liability policy in Brussels next Tuesday at this event hosted by CDTIntermediary Liability & Content Responsibility: A Cloud of Uncertainty for Internet Intermediaries

For more information and comment, see Jennifer Baker 20-year ancillary copyright term, new YouTube rule mulled in draft EU law in Ars Technica 

This is an original article from Iptegrity.com and reflects research that I have carried out. If you refer to it, please cite my name as the author, and provide a link back to iptegrity.com. Media and Academics – please cite as Monica Horten, 2016, EU copyright bombshell: social media sites to police content,  in Iptegrity.com, 1 September  2016. Commercial users - please contact me.

 

If you like this article, you might also like my latest book The Closing of the Net which discusses corporate influences over EU policy. It has three chapters on copyright including coverage of web blocking litigation, and the intriguing case of Megaupload.

 

 

 

 

 

 

The Copyright Enforcement Enigma tells the story of the 2009 Telecoms Package and how the copyright industries tried to hijack it.

'accurate and absorbing account of the story of the Telecoms Package' -Journal of International Commercial Law and Technology

'...a must read for those interested in knowing in depth about copyright enforcement and Internet.' -Journal of Intellectual Property Rights.  

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Copyright Enforcement Enigma launch, March 2012

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Iptegrity.com is the website of Dr Monica Horten, European expert on Internet policy and Visiting Fellow at the London School of Economics & Political Science. She is an independent expert on the Council of Europe Committee on Cross-border flow of Internet traffic and Internet freedom (MSI-INT). She was shortlisted for The Guardian Open Internet Poll 2012. Iptegrity  offers expert insights into Internet policy. Iptegrity has a core readership in the Brussels policy community, and has been cited in the media. Please acknowledge Iptegrity when you cite or link.  For more, see IP politics with integrity

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