Hello everyone
On the 23rd of June, Danish MEP Morten Løkkegaard (Danish Liberal Party
/ ALDE) wrote an op-ed in the Danish newspaper /Berlingske Tidende
/defending the copyright proposal. (See
https://www.b.dk/kronikker/regulering-af-internettets-vilde-vesten-er-ikke-en-begraensning-af).
At the WMDK board meeting on the 25th we decided we should try to write
a rebuttal and see if the paper would bring it. I'm hoping to get board
approval and send it to the paper tomorrow so that it might possibly be
printed or posted on their website on the 4th, the day before the vote.
Obviously it's in Danish, but I've created a translation:
On the 23rd of June, Morten Løkkegaard published an op-ed defending
the European Commissions controversial proposal for a new directive
on copyright. His colleague in the ALDE-group, Jens Rohde, was also
arguing for it on Twitter where he characterized opponents who had
contacted him regarding the proposal as hackers, spammers, internet
communists or perhaps all of them at once.
Løkkegaard and other supporters of the proposals have an easy
foundation to argue from: Copyright is not something the average
citizen thinks about in their daily life, and very few people have
the time and interest to read the 33 page long proposal as well as
the relevant amendments, opinions and other relevant material about
the legislation, and even fewer people have the relevant knowledge
to understand what the directive actually does. That makes it
possible for Løkkegaard and co. to frame the debate however they
like, which is why one should be observant of the fact that they
never actually refer to the text of the proposal.
Contrary to Løkkegaard and other proponents of the proposal,
Wikimedia Denmark, along the line of other nonprofit-organizations
such as the Electronic Frontier Foundation, Creative Commons and
European Digital Rights (EDRi), that the proposal is
disproportionate, will strangle innovation and free knowledge
excahnge on the internet, and doesn't adequately consider legal use
of copyrighted material. A long line of experts have also criticized
the proposal for the same reasons. We're opposed to both article 11
and 13 of the proposal, but are choosing to focus on article 13
since that is the most damaging one.
Article 13 fundamentally changes who is liable for copyright
infringing material on the internet, there is no disagreement on
this point. Until now, the "notice and takedown"-method has been
used, where a hosting provider such as YouTube or Flickr are only
liable for infringing material if they are made aware of it and then
refuse to or refrain from removing it, a rational way of doing
things and in line with how we traditionally look at liability. With
the new directive, hosting providers have to actively enter into
agreements with copyright collectives regarding the hosting
providers' users' use of the rightsholders material or otherwise be
directly responsible for copyright infringing material on their
platforms, regardless of intent (art. 13 sec. 1 as amended). As a
part of these agreements, or if the rightsholders refuse to or don't
provide license agreements, the hosting provider has to implement
content recognition filters that let rightsholders scan uploaded
content to check whether it contains infringing content (likewise
section 1).
This is where the proponents of the directive start protesting and
claim that the directive does not mandate that hosting providers use
content recognition filters, they're just mentioned as a possible
solution, and the proponents were so nice as to remove two thirds of
the mentions content recognition filters in the proposal! However,
it doesn't take much consideration to realize that this is the only
way to protect oneself from liability. Regardless of the wording,
article 13 is a de facto mandate to implement content recognition
filters. This is problematic for multiple reasons.
Content recognition filters cannot respect legal use of copyrighted
material, the Danish quotation rule for example. Prior experience
from platforms such as YouTube, which already uses a content
recognition system has shown that when movie or game critics use
short snippets of copyrighted material to contextualize their
critique, something which is allowed under their respective local
laws, they almost always get caught up in content recognition
filters that "claim" the video on behalf of rightsholders. This is
because of the automated nature of content recognition: it is
impossible to manually go through the large amount of content posted
on hosting providers' platforms, so rightsholders automate the
process, and thus context dies. It is completely irrelevant whether
your use of a text excerpt from a copyrighted book is protected
under the right of quotation, an automated proces cannot adequately
adress that. By the way, that's what is meant when article 13 is
criticized for strangling free expression, as opposed to how
Løkkegaard frames it, and it isn't changed by the weasel words
regarding "fundemental rights" that has been added multiple places
in the proposal after it was subject to criticism (such as recital
39 as amended).
Proponents of the proposal will probably point to article 13. sec. 2
which mandate that hosting providers establish a complaint process
for users who feel that they have been incorrectly impacted by
content recognition filters. Remarkably, the proposal does not
further explain what such a complaint process would contain other
than the fact that it should be "without delay", that rightsholders
must "justify" their characterization of the content as infringing,
and that the identity of users should not be revealed to the
rightsholder (art 13. sec. 2). This phrasing is incredibly vague and
could result in widely different protection of user rights in the
individual member states, somewhat ironic for a proposal meant to
harmonize copyright in the EU. Regardless of each states
implementatoin, this proces essentially means that the user is
guilty until proven innocent, something which is contrary to
fundemental EU principle.
As a supporting organization for Wikipedia and Wikimedia, article 13
is harmful to projects like ours that freely let users change the
contents of our platform, a model that doesn't work if content
recognition filters have to check every contribution. Proponents of
the directive have tried to protect themselves against this
criticism through recital 37a which carves out hosting providers
with "non-commercial purposes such as online-encyclopedias […] open
source-software development platforms" or "scientific archives".
This protection is inadequate.
First of all, the phrasing is incredibly vague. Unless you are
literally a non-commercial online-encyclopedia, it's hard to know
whether your fall under the phrasing of the carveout. Furthermore,
the proposal doesn't explain how platforms that are primarily
non-commercial but still have some connection to commercial
enterprises should be treated. Wikimedia Commons, the media platform
that supports Wikipedia, is a non-commercial venture, but the images
hosted on the platform are meant for free use and thus can be used
in a commercial context. GitHub is a platform that is primarily used
for open source-software development and which is primarily free to
use, but the platform also offers commercial solutions for
companies. Are these two examples exempt from the directive?
Secondly, it's worth noting that Wikimedia and Github have spent a
lot of resources making our opinion known in Brussels, so even if
you assume that Wikipedia, Wikimedia Commons and projects like
GitHub are covered by the exemption, it looks like it's been written
specifically to appease us, but doesn't do anything further to
protect smaller actors that don't have the same political impact.
That is unacceptable.
The average reader would probably think that all this is extremely
esoteric and hard to understand, and that is pretty much true.
However, one cannot let complexity make it possible to pass what is
at best good-faith legislative carelessness, at worst a deliberate
limitation on the rights of citizens. Article 13, and other parts of
the proposal for that matter (such as article 11), will affect
anyone who uploads conent to the internet, and it is extremely
important to be watchful of how the Danish members of the European
Parliament vote on the proposal. The parliament votes on the
directive on the 5th of July, and it is imperative that it isn't passed.
I know some of the phrasing is a bit awkward, but that's mostly down to
the translation. Any feedback from the publicpolicy list would be
appreciated.
--
Best Regards,
Matthias Smed Larsen
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