After more than a year of discussions MEP Axel Voss has finally come forward with his ideas about one of the most controversial aspects of the EU copyright reform proposal. On Wednesday he shared his compromise proposals for Article 13 of the proposed copyright in the DSM directive, that deals with filtering measures aimed at online platforms. The “compromises” drafted by MEP Voss make it clear that with regards to article 13 he has chosen to do the bidding of the music industry at the expense of users, open platforms and pretty much the rest of the internet.
Let’s focus on two main aspects of the approach that Voss is backing (for a more comprehensive analysis of his compromise see Felix Reda’s excellent write-up here). What would the new rules mean for users sharing materials via platforms, and what would the new rules mean for online platforms?
Online platforms: License or cease to exist!
In the version supported by MEP Voss, article 13 establishes two different obligations for online platforms that allow user uploads. In a first step, all platforms are required to obtain licenses from rightsholders. Those platforms that hold “significant amounts” of content also need to take “appropriate and proportionate measures to ensure the functioning of these agreements”. In the case that platforms do not have licensing agreements with rightsholders they need to take “appropriate and proportionate measures to prevent the availability on their services of works or other subject-matter”.
These rules would effectively end the current situation in which online platforms are not directly responsible for content that their users upload. The new rules would mean that all online platforms “that store and provide access to the public to copyright protected works or other subject-matter uploaded by their users” (which means pretty much all platforms) will be directly responsible for the content uploaded by their users and must obtain licenses from (unspecified) rightsholders. If they don’t (which is a strange condition given that all platforms must do so) they must implement filtering rules that prevent all copyrighted works from becoming available on their services. In other words, platforms must obtain licenses from rightsholders or they must cease to exist (as it is somewhat hard to make a business case for a platform on which nothing is available).
While it is easy to dismiss the these conditions as excessive and inconsistent it is important to realise that a scenario in which unlicensed open platforms cease to exist is exactly what the music industry has set out to achieve. In his eagerness to deliver to his music industry friends MEP Voss is throwing willing to throw large parts of the internet under the bus. As we and many others have argued before, the approach embodied in article 13 (to weaken the protections for internet intermediaries in order to give rightsholders more leverage against commercial platforms) is irresponsible and needs to be abandoned before it causes irrevocable harm to large parts of the internet.
Sharing content online? Guilty until proven innocent!
For the users of the few platforms that will survive this assault (ironically this will be the big established players, who are the intended targets of article 13) the consequences will be equally drastic and MEP Voss couldn’t care less about them. Article 13 as promoted by him would establish a “guilty until proven innocent” principle when it comes to sharing creative works online. The language proposed by Voss would require all platforms to implement censorship filters (either to ensure the “functioning of agreements” or to outright prevent the availability of content).
Instead of requiring such filters to respect the rights of users to make use of copyright protected works if such uses fall under the scope of an exception (something which experts agree is not possible with the current state of technology), Voss simply wants to require the platforms to put into place “effective and expeditious complaints and redress mechanisms” for users. In other words, users must be provided with the ability to complain after their uploads have been deleted. Under such an regime the right to freedom of (creative) expression is devalued to the meager right to complain about the inevitable censorship after the fact.
For MEP Voss this seems to be an acceptable price to pay in order to please the big rightsholders. Over the next couple of weeks it will be crucial to make it clear to him (and more importantly the other members of the legal affairs committee who will have a say in this) that curtailing fundamental rights and undermining the underpinnings of large parts of the internet are not acceptable to all of us. Copyright laws that are are designed to benefit a cartel of big rightsholders at the detriment of everybody else lack any legitimacy and are completely unsuited to ensure that Europe can play a role in designing the future.
Now is the time to call upon the MEPs in the Legal Affairs committee to reject Mr. Voss’ proposal. You can do so with calling tools provided by SaveTheMeme.net and ChangeCopyright.org. Another way to make your voice heard is by joining Open Media’s twitter campaign aimed at MEP Voss.