The Copyright Directive was passed in the European Parliament butthere is still one final hurdle before it becomes law. It must be adopted by the Council of Ministers. This article issues a reminder to Member State governments of the reasons why it is problematic.

A controversial provision being inserted into EU copyright law is causing consternation after the European Parliament voted last week to accept it. This is the so-called upload filter - a proposal to check all content uploaded by users for copyright compliance. However, it's not yet final and there is a small group of Member States who have said they will withold their consent when the law goes to the Council of Ministers. They may not yet have the numbers, but it's an interesting move.

The Council of Ministers - comprised of the governments of the 28 Member States including the UK - has the final say. The Member States who may vote against the Copyright Directive say that it fails to strike the right balance between the interests of right-holders and the interests of citizens and technology businesses. It could jeopardise citizens' rights and will result in uncertainty, negatively impacting on competition in the Digital Single Market.

With EU elections looming, there are also political reasons why Member States might wish to reconsider. Young people, especially in countries like Germany have become politicised over the Directive and they are opposed to the upload filter. Shelving it for a while might be an attractive option.

Here are 10 points the Council could consider:

1/ Article 17 (Ex-Article13) is a carve-out of the E-commerce directive that destroys a long-standing pact between the Internet industries and the content industries formulated in 2000. Of course, the Internet has changed dramatically since then - it was a time before Facebook, Twitter, file-sharing and the world of apps - and there are good reasons to re-consider it. But this is not the way to do it.

It has been done this way precisely in order to avoid opening up the E-commerce directive, which would result in many more attacks on the way the Internet works. However, while this technically leaves the E-commerce directive intact, it will have the effect of carving out the liability provisions without resolving any of the wider issues. In particular, it will serve to entrench the monopolies of the big global platforms, which will control not only the means of content distribution but the means of enforcement as well. There will be negative consequences for innovation, as expressed in this open letter from leading copyright academics.

2/ Article 17 (Ex-Article13) says that it does not impose a general monitoring obligation (S.8) - a reference to the E-commerce directive Article 15 - and yet it inherently requires a permanent, blanket filtering of all content uploaded by users, in order to identify any that my infringe copyright and remove it. In other words, it requires a general monitoring of all users, all of the time, for an indefinite period. There is no other way to achieve the aim. The imposition of such systems, where filtering applied indiscriminately to all its customers, as a preventive measure, exclusively at its expense, and for an unlimited period was declared unlawful in the ECJ ruling Scarlet Extended of 24 November 2011. This is therefore an inherent contradiction in the text that should be addressed before it becomes law.

3/ Section 4 (b) calls for Internet intermediaries to use 'best efforts to ensure the unavailability' of content and section 4 (c) calls for them to 'act expeditiously to disable or remove'. What should intermediaries do? How is "best efforts" defined? How does 'ensuring unavailability' differ from 'act expeditiously to disable'. These contradictions in the text need to be addressed before it should become law.

4/ The text correctly issues a reminder that in implementing the filters intermediaries must respect GDPR (S.9). However, the academic expert Dr Malte Engeler has highlighted ways in which the filters would be unable to both comply with GDPR and with this directive.

5/ Costs are loaded onto Internet intermediaries (S.5(b)). (See EU Copyright Directive - who pays the bill for the upload filter? ). The global platforms are best positioned to absorb this cost, and have almost certainly agreed to do it because they understand how it protects their position. If they run the enforcement mechanism, governments will have to go to them for anything they need. That makes them enormously powerful. It's interesting to contemplate whether it will be possible to break up these companies given that they will control global enforcement systems.

6/ The exception for intermediaries that are SMEs (S.6) is highly problematic. This is the so-called 'compromise' agreed before the European Parliament vote. It is splitting hairs to say that it would limit their liability under this Directive. They still have to seek licences for content uploaded and can be asked to 'act expeditiously' to remove content or disable access to it. On that basis, they will still face a cost and administrative burden.

7/ The Directive mentions 'determining whether a service provider has complied' (S.5) but does not prescribe any mechanism for doing so. How should Member States approach this? It begs the question about the need for oversight by the State. The Directive as it stands provides for a private system of copyright enforcement and we know from previous attempts to bring in legislation for online copyright enforcement, that leaving it to the two industries to work it ot between themselves. This is the language of 'co-operation' (S.10) (See "Co-operation" amendment WAS designed to support 3-strikes ) and history shows that it does not work.) Previous experience, for example with the Digital Economy Act 2010 in the UK, show that this is unworkable. ( See The 84 million-a-year bill for DE Act).

8/ Processes for user complaints and redress are loaded onto Internet intermediaries, whereas rights-holders are only asked to 'duly justify' their requests (S.9). How is the intermediary going to deal with complaints that fundamentally concern two third parties? An 'out-of-court redress mechanism' is mentioned, without specifying any detail as to what it could be. It would seem that this problem is thrown back onto the Member States. Have we forgotten the agonising debates of 2008-10 ? (See for example, Telecoms Package: the verdict ).

9/ The major beneficiaries from Article 17 (ex-13) are the vendors of filtering systems, such as Audible Magic, who have been extensively lobbying the EU for this law. This thread from US law professor Anne-Marie Bridy explains in detail how they have lobbied. Every platform and app provider will need filtering systems.

10/ Stakeholder dialogues (S.10) rarely work. Previous attempts by the European Commission to facilitate dialogue between Internet and content industries failed miserably. (see Commission slams the lid on EU Hadopi talks ). There is every reason to expect to the same outcome in this context. There are in fact, three groups of stakeholders in this policy area - Internet (technology) industries, content (entertainment) industries, and the citizens who use the Internet and the platforms. All three must be consulted in order to reach a new pact. It will take time to get it right.

Overall, this is an ill-considered piece of legal drafting on such an important matter. The best place for Article 17 (ex-13) is on the shelf.

IF YOU WOULD LIKE TO READ MORE ABOUT THE ONLINE COPYRIGHT ENFORCEMENT IN THE EUROPEAN UNION, PLEASE CHECK MY BOOKS, IN PARTICULAR 'A COPYRIGHT MASQUERADE'

Further analysis of EU Copyright Directive Article 13:

EDRi's verdict on the European Parliament vote on the Copyright Directive: Censorship machine takes over EU internet

Innocenzo Genna: Art.13 of thenew Copyright Directive and the censorship machine, for dummies

Joe McNamee : ENDitorial: The Commission's new filtering adventure

EDRi: Deconstructing Article 13

Felipe Romero-Moreno : 'Notice and staydown' and social media: amending Article 13 of the Proposed Directive on Copyright

ABOUT ME:

Contact me if you would like to discuss any of the issues raised (Via Contact Us page or Twitter @Iptegrity).

For new Iptegrity readers, I have been analysing EU policy for over 10 years ( see 10 years of Internet wars ), and have considerable experience of interpreting EU documents, which are sometimes quite opaque.

In the current political climate of Brexit, I would like to avoid any mis-understanding about my position on the EU. Over the past 10 years as an analyst of EU policy, I have come to value its openness to critical commentary and citizen access at multiple levels. The EU is imperfect, like any political insitution, but relative to others, it has a system that enshrines democratic values and facilitates robust scrutiny of policy proposals. I believe in working with Europe, not against it.

If you cite this article or its contents, please attribute Iptegrity.com and Monica Horten as the author.

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