The latest 'compromise' from the Estonian Presidency on the EU Copyright Directive, cuts right across a fundamental balance in EU law. It seeks to embed hosting intermediaries into copyright law and to impose an onerous and heavy-handed form of prior restraint on Internet users. Moreover, in 10 years' of working on EU policy, I have rarely seen legal drafting as repetitive, wordy and muddled as this. The problematic text is

the Estonian Presidency 'compromise' on Article 13 (see EDRi website ).

As a quick reminder - Article 13 is the provision that seeks to impose an upload filter and stay-down measures. These measures would mean that intermediaries would have to filter all content being uploaded and remove anything that infringed copyright before the user is even able to see it in their feed or on their page. It called for voluntary agreements between rights-holders and hosting platforms to implement these measures. This was considered an onerous provision from the intermediaries' perspective, and was highly controversial .

The latest version of Article 13 in the Estonian Presidency 'compromise' proposal is considerably extended, and has several paragraphs of accompanying guidance. The additions to the text don't make it clearer, they make it less intelligible, and will impose vast amounts of red tape on intermediaries, which will be an intolerable burden for the smaller hosts. The compromise proposal would have the effect of reversing the liability protection enshrined in the E-commerce directive. Here is the first paragraph:

Member States shall provide that an information society service provider whose main or one of the main purposes is to store and give access to the public to large amounts of copyright protected works or other protected subject- matter uploaded by its users is performing an act of communication to the public or an act making available to the public within the meaning of Article 3(1) and (2) of Directive 2001/29/EC when it intervenes in full knowledge of the consequences of its action to give the public access to those copyright protected works or other protected subject matter by organising these works or other subject matter with the aim of obtaining profit from their use. (Compromise Article 13.1)

The effect would be to bring content platforms and some other hosting intermediaries into the fold of copyright law. This is the intention of incorporating the language " performing an act of communication to the public or an act making available to the public within the meaning of Article 3(1) and (2) of Directive 2001/29/EC" . The words "communication to the public" and "making available" have specific meanings under copyright law and it is these legal provisions that are most often used by the music and movie industries when they litigate for copyright infringement online.

The reference to "organising" the works means search facilities, rankings and listings. The suggestion is that any platform or host that provides listings or search functions and includes copyrighted works in them, should be liable.

Hosting intermediaries are being asked to "prevent availability" of copyrighted content. The 'compromise' Article 13 does not state in its text that this means scanning and filtering of copyright material, however, the only way that availability of content can be prevented, especially at scale, is with the use of automated systems. In the accompanying Recitals, there are enough references to 'state of the art technologies' to make it clear what is meant. Indeed, there is a specific reference to 'content recognition technologies'.

The taking down of content would be done at the behest of rights-holders, irrespective of whether or not they have an agreement with those rightsholders. (Article 13.1a). An accompanying Recital calls specifically for content recognition technologies to be implemented. There will be no court order.

The words 'prevent availability' suggest that hosts are being asked to filter uploads. This would seem to be a form of prior restraint. It raises serious questions about the violation of the right to freedom of expression. An upload filter and any form of measures to prevent material being published or re-uploaded provides the raw material for a censorship regime. It is violation of current EU law under Article 15 of the E-commerce directive. Hence, those who describe this as a 'censorship machine' are not wrong. (See also Cyberleagle).

As there is no provision for rights-holders to contribute, it would seem that hosts will have to fund the systems themselves. Hosts will also have to provide rights-holders, at their request, with information on the functioning and deployment of the measures, adding a significant amount of red tape for the host to fund and resource. (Article13.1b)

Users to have the right to "complain" to the host if they believe their content benefits from an exception to copyright. Rightsholders are to make the assessment. (Article 13.2)

Therefore, rights-holders would be able to ask for content to be removed, and kept off the system, and if the user protests, the rights-holder would decide on their appeal. This is unfair because the user might have the right to use the content under for example, the educational use exception, and also because some artists do not agree with the heavy-handed approach to copyright enforcement of their recording companies or publishers.

Under the proposed compromise, Member States would be asked to to facilitate dialogues between hosts and rights holders to define best practices, and they are to define sanctions - in other words, new fines for intermediaries who do not comply.

We have been here before with facilitated dialogues between rights-holders and intermediaries, and they generally do not end happily. ( See Commission slams the lid on EU Hadopi talks ). In this case, there is also a threat to the smaller hosts, who may be liable under the provision but are not represented in the policy dialogue.

There's another very strange element to this proposed 'compromise', which seeks to differentiate between users in their personal capacity, and users in a professional capacity. As EDRi has already higlihgted, how can the intermediary know which capacity is relevant for each individual upload?

There is also uncertainty about exactly which hosting intermediaries are the target of this provision. It indicates hosting providers and platforms that make 'a significant amount of copyrighted content available'. The question then arises 'what is a significant amount?'. The proposed law recognises this problem and provides guidance in Recital 38. The guidance calls for 'a significant amount' to be determined on a case by case basis, taking into account a combination of elements such as the number of files uploaded and the proportion of copyrighted files in the total. It also discusses how to determine the proportionality of the measures, depending on the size of host.

It also says it makes a difference if they 'aim to profit from their use' but the woolly drafting does not make it clear what that language is intended to mean. The reference to a profit motive is problematic. There are tests in copyright law as to whether someone is operating on a commercial basis (and remember the controversy in ACTA over the text 'commercial scale' ACTA: what is commercial scale?).

My interpretation is that this would impose huge amounts of red tape on intermediaries, with no compensation available from the rights-holders who will benefit. We've also been there before with the Digital Economy Act 2010 - rights-holders and network providers could not agree costs and that was one of the reasons why the law was never implemented. (See The 84 million-a-year bill for DE Act.)

I think the best thing that could be done is to scrap it and look at more sensible alternatives. The EU should remind itself that the Digital Single Market comprises more than just copyright and that policy-makers have a duty to reflect the interests of all stakeholders.

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For an analysis of the European Commission's overall approach to "Tackling Illegal Content Online" see Graham Smith's extensive article at Cyberleagle.

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To cite this article or its contents, please attribute Iptegrity.com and Monica Horten as the author. If you want to re-post it, please contact me (see Contact Us page or tweet to me @Iptegrity).

If you liked this article, you may also like my book The Closing of the Net which includes chapters on content restrictions and copyright.

I have also written about EU policy regarding the Internet and copyright in my book A Copyright Masquerade. Both books provide analysis and commentary on the legal framework that supports today's initiatives.

Picture: Estonian Presidency website

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