The EU copyright directive has caused controversy than any other proposal in recent EU history – and for good reason. In abandoning traditional legal mechanisms to tackle copyright infringement online, Article 17 (formerly Article 13) of the directive introduced a new liability regime for online platforms, supposedly in order to support creative industries, that will have disastrous consequences for users. In a nutshell: To avoid being held responsible for illegal content on their services, online platforms must act as copyright cops, bending over backwards to ensure infringing content is not available on their platforms. As a practical matter (as EFF and other user rights advocates have repeatedly explained) this means Article 17 is a filtering mandate.
But all was not lost – the EU Commission had an opportunity to stand up for users and independent creators by mitigating Article 17’s threat to free expression. Unfortunately, it has chosen instead to stand up for a small but powerful group of copyright maximalists.
The EU Commission’s Guidance Document: Civil Society Concerns Take a Backseat
EU “Directives” are not automatically applicable laws. Once a directive is passed, EU member states must “transpose” them into national law. These transpositions are now the center of the fight against copyright upload filters. In several meetings of an EU Commission’s Stakeholder Dialogue and through consultations developing guidelines for the application of Article 17 (which must be implemented in national laws by June 7, 2021) EFF and other civil society groups stressed that users’ rights to free speech are not negotiable and must apply when they upload content, not during a later complaint stage.
The first draft of the guidance document seemed to recognize those concerns and prioritize user rights. But the final result, issued today, is disappointing. On the plus side, the EU Commission stresses that Article 17 does not mandate the use of specific technology to demonstrate “best efforts” to ensure users don’t improperly upload copyright-protected content on platforms. However, the guidance document failed to state clearly that mandated upload filters undermine the fundamental rights protection of users. The EU Commission differentiates “manifestly” infringing uploads from other user uploads, but stresses the importance of rightsholders’ blocking instructions, and the need to ensure they do not suffer “economic harm.” And rather than focusing on how to ensure legitimate uses such as quotations or parodies, the Commission advises that platforms must give heightened attention to “earmarked” content. As a practical matter, that “heightened attention” is likely to require using filters to prevent users from uploading such content.
We appreciate that digital rights organizations had a seat at the stakeholder dialogue-table, even though outnumbered by rightsholders from the music and film industries and representatives of big tech companies. And the guidance document contains a number of EFF suggestions for implementation, such as to clarify that specific technological solutions are not mandated, to ensure that smaller platforms have a lower standard of “best efforts”, and to respect data protection law when interpreting Article 17. However, on the most crucial element – the risk of over-blocking of legitimate user content – the Commission simply describes “current market practices,” including the use of content recognition technologies that inevitably over-block. Once again, user rights and exceptions take a backseat.
This battle to protect freedom of expression is far from over. Guidance documents are non-binding and the EU Court of Justice will have the last say on whether Article 17 will lead to censorship and limit freedom of expression rights. Until then, national governments do not have a discretion to transpose the requirements under Article 17 as they see fit, but an obligation to use the legislative leeway available to implement them in line with fundamental rights.