Last year there were fierce protests against the 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 are now working on implementing the text into local law.
This includes Article 17 (formerly 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.
These new requirements are welcomed by rightsholders but many tech companies see them as a threat. This week, several industry groups issued a warning about the negative consequences in their submissions for the US Trade Representative’s Special 301 Report.
The Computer & Communications Industry Association (CCIA), which includes Amazon, Cloudflare, Facebook, and Google as members, is one of the concerned groups. According to the CCIA, Article 17 will have significant consequences for both online services and users.
“Online services must implement filtering technologies in order to comply with the requirements under Article 17. While Article 17 avoids the word ‘filter’, practically speaking content-based filtering will be required if a service is to have any hope of achieving compliance,” the group writes.
CCIA notes that Article 17 will result in a ‘notice-and-staydown’ obligation. This goes against the current global standards that provide online services with a safe harbor against copyright infringements committed by users.
As a result, tech companies fear that they will no longer be able to operate freely in the EU. In some cases, that could mean that they can’t operate there at all. Contrary to claims from EU officials, CCIA believes that lawful activities carried out by users will be severely restricted.
Technically speaking, fair use including memes and parodies will still be allowed. However, since these copyright exceptions can’t be determined by automatic filters, services may choose to remove more content than they have to.
“Because algorithms used to monitor content on platforms cannot contextualize to determine whether the content was lawfully uploaded under one of the exceptions listed, the law requires platforms to err on the side of removing content,” CCIA writes.
This is exacerbated by the concern that copyright exceptions apply to users, but not to the platforms, the tech companies argue. This means that online services can still be held liable for content users have posted lawfully.
While it’s too late to stop the legislation now, CCIA urges the US Government to make EU member states aware of these concerns. Ideally, EU member states should ensure that the fallout from the new requirements is limited. For example, by requiring rightsholders to notify online services before they have to take action.
This criticism is shared by the Internet Association (IA), which includes many of the same tech companies as members.
“The EU Directive effectively requires internet services of all sizes to implement comprehensive content filtering systems, without regard for the inevitable consequences of such filtering,” IA writes.
In addition to the critique on Article 17, both industry groups also flagged various European website blocking schemes and orders as problematic. In particular, those that take place without any oversight from courts.
The IA and CCIA both mention Italy’s site-blocking efforts as well. This is administered by the Italian Communications Authority (AGCOM) which can require ISPs to block sites without a judicial process.
Finally, Russian piracy blocking efforts are mentioned too. These affect some of the tech companies directly, as it requires search engines to remove all links to
allegedly infringing websites within 24 hours.
“In practice, this law has resulted in overbroad removal and delisting requests for general-purpose websites that would not be subject to removal under Section 512 of the Copyright Act or other parts of U.S. copyright law,” IA writes.
The tech companies hope that the US Government will take its concerns into account. Aside from the EU-focused issues, the full requests of both CCIA and IA highlight a variety of concerns in other regions as well.