Trilogue: don’t give up on fundamental rights!

We have argued again and again that copyright reform is also fundamental rights matter – therefore we co-signed an open letter to the European decision-makers asking them to add human rights safeguards to Article 13 of the proposed Copyright Directive on the Digital Single Market throughout the negotiation process.

The fundamental rights safeguards crucial for ensuring compliance of the new Directive with the Charter of Fundamental Rights are in accordance with our four principles for minimising harm to users, creators and the internet. The letter signed by 27 fundamental and digital rights organizations raises concerns about the current state of play for Article 13 and calls for:

a) Transparency

Platforms control all information available on the internet and they are empowered to rank and take down content at their discretion. These platforms serve “the internet” as we know it now. Internet platforms are able to make decisions about freedom of expression with no transparency or accountability and the proposed Directive does not change that. In cases where content is blocked or taken down, it is critical that they properly justify their decisions; decisions that should be subject to proper redress mechanisms to ensure free speech and freedom of information. Besides providing an alternative dispute resolution, the EU could provide, for free, legal mechanisms across the EU to settle disputes between users, copyright holders and internet platforms.

b) Avoid automated filtering and blocking of content

We call on EU decision-makers to avoid introducing a mandatory monitoring obligation. Automated filtering software is notoriously inaccurate and is likely to catch lawful materials that do not breach copyright and that are essential for societal and political debate and comment, such as parody or quotation. Finally, a general obligation to monitor everything a user uploads to the internet is likely to cause a chilling effect on free speech, as users will be more likely to self-censor any content that could risk triggering (inaccurate) filtering software.

c) Sanctions

Article 13 covers changing the liability regime. The upshot of this is that platforms will be sanctioned if they let copyrighted content through their system without a licencing agreement. The proposed solution would create an incentive for platforms to be overly cautious and take down anything that presents even the slightest risk of legal exposure for the company. On the other hand, it is important to ensure that there are legal repercussions that disincentive platforms from removing content that does not violate copyright. The EU should create a rebalancing incentive. It is important that both rightsholders and platforms are liable for deleting lawful, user-generated content under the guise of copyright protection. This responsibility will positively change the attitude of the platforms and will also more effectively protect user content.

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