Last year there were fierce protests against the new EU Copyright Directive which, according to opponents, would result in broad upload filters on the web.
Despite this pushback, the directive passed, and individual EU member states began work to implement the text into local law.
This includes Article 17 (formerly known as Article 13), which requires many online services to license content from copyright holders. If that is not possible, these companies should ensure that infringing content is taken down and not re-uploaded to their services.
After last year’s media storm the upload filter news died down. However, behind the scenes, there is still a lot of work being done. In recent months there have been several stakeholder meetings discussing how the EU Directive can be best implemented by individual states.
Article 17 Guidance Consultation
To help things move forward, the European Commission launched a public consultation at the end of July. The Commission is working on an official guidance document for member states to help them implement Article 17 and has asked stakeholders for input.
The proposed guidance still keeps the door wide open for upload filtering but is also mindful of all the caveats that come with it. For example, it mentions that, when automated filters are used, online services should ensure that content isn’t removed without a good reason.
Specifically, it suggests that simply restoring inaccurately removed content after the fact isn’t good enough. Instead, “legitimate uses should also be considered at the upload of content.”
The public consultation officially ended last week. It has attracted dozens of submissions from key stakeholders many of which go into great detail. While it is impossible to summarize them all, it’s clear that the upload filter battle is far from over.
Copyright Groups are Very Concerned
Late last week a group of major copyright holder groups including IFPI, the MPA, ACT, and Eurocinema, sent a letter to EU Commissioner Thierry Breton, criticizing the drafted guidance document. They fear that the carefully constructed text of the directive will be watered down.
“We are very concerned that, in its Consultation Paper, the Commission is going against its original objective of providing a high level of protection for rightsholders and creators and to create a level playing field in the online Digital Single Market,” the groups write.
“It interprets essential aspects of Article 17 of the Directive in a manner that is incompatible with the wording and the objective of the Article, thus jeopardizing the balance of interests achieved by the EU legislature in Article 17,” their letter adds.
‘Likely Legitimate’ Content Should be Removed Until Further Order
The copyright holder groups identify several specific concerns. One refers to the suggestion that online services should keep content online when it’s “likely legitimate.”
This goes against the text of the agreed Copyright Directive which is highly problematic and creates legal uncertainty, they note. The copyright holders would prefer everything to be removed immediately and put back when content turns out to be legitimate.
“In particular, the possibility for ‘likely legitimate’ content to ‘stay up’ – while the possible application of exceptions and limitation is assessed – is inconsistent with this provision, as interpreted in light of its context and purpose.”
Upload Filter Opponents are Deeply Concerned
A few days after the copyright holder groups shared their concerns, Commissioner Breton also received a letter from several civil society and user rights organizations. These have been very critical of Article 17 and still protest automated upload filters.
“We remain deeply concerned that the guidance endorses the use of automated content blocking by online services even though it is clear that this will lead to the violation of fundamental rights,” the civil rights groups warn.
The organizations, including EFF, Communia, Creative Commons, and EDRi also note some positive changes. This includes the aforementioned suggestion that legal uses should be considered at the upload stage, which is the issue copyright holders are not happy with.
Human Review is Often Required
However, according to the user rights advocates, the public requires even broader protection. They want all content that’s not “manifestly infringing” to be reviewed by human eyes.
“Article 17 requires that all legal uses remain online, not only those that are ‘likely legitimate’ according to a superficial screening that is unlikely to reflect the complexity of copyright law. At minimum, the standard for the deletion of content should be ‘manifestly infringing’.
“In this context, it is essential that uploads that are not manifestly infringing remain available until the human review has been concluded,” the groups add.
It is now up to the European Commission to review all the submissions and come up with a final guidance document, which is expected to be published later this year. In addition to all the public commentary, there will likely be various lobbying efforts behind the scenes as well.