WIRED

When the European Parliament approved the Directive on Copyright, in March 2019, internet users worldwide started fretting. Critics argued that the new Directive would ban memes, damage freedom of speech, and destroy the livelihood of YouTubers and other online content-creators.

One article in particular was a source of great concern: Article 13. Article 13 (now officially known as Article 17) makes online platforms that host user-generated content responsible for removing copyrighted material – a requirement that might force platforms to adopt automated filters winnowing out offending materials before they are even uploaded. In the most pessimistic reading of its consequences, the rule might kill the web as we know it. Now, a legal battle started in Poland aims to kill the killer – that is: to get rid of the Directive, and specifically Article 13. Other countries might join the effort.


On May 24, 2019, Poland filed a complaint against the Directive before the European Court of Justice (ECJ). "The Directive does not ensure a balance between the protection of rights holders and the interests of EU citizens and EU enterprises,” read a tweet announcing the move, posted one day earlier by the account of the chancellery of the Polish prime minister, Mateusz Morawiecki. “The directive does not ensure legal clarity, fostering legal uncertainty for stakeholders and endangering the rights of EU citizens. It could have a negative impact on the competitiveness of the European Digital Single Market.”

The text of the complaint hasn’t been published yet, but WIRED has seen a draft of the final version of the Polish government’s case. The complaint’s main target is indeed Article 13 (now Article 17). According to the document, the provision “violates the right to freedom of expression and information, guaranteed by Article 11 of the Charter of Fundamental Rights of the European Union, by imposing new duties on online content-sharing service providers [such as online platforms like Facebook, YouTube, or Twitter], including the prevention of future publication of works and other protected content for which rights holders have made duly justified objections”.

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As many other Article 13-sceptics, Warsaw is wary of automated upload filters. The complaint argues that they would threaten freedom of expression and information.“The provisions contested by this complaint result in general, automated preventive censorship applied by private operators,” the document says. While the Directive doesn’t explicitly prescribe using upload filters, Poland thinks they are inevitable. The document says that if no specific methods to solve this issue are established by the Directive itself, online platforms could err on the side of caution and willfully turn to algorithm-based filters – which might accidentally remove legal content due to technical glitches or algorithmic bias.

Some Polish officials are even starker in their opposition to the law. According to Robert Kroplewski, a solicitor and expert for Poland’s Ministry of Digital Affairs, Article 13 in its current shape could lead to preventive censorship by the hands of foreign publishers and online platform owners. "I would say this can be seen as the rise of industrial censorship, global and automated," he says.


Kroplewski suggests that automated upload filters would result in an unfair “competitive advantage” for the foreign media , which might allege spurious copyright violations against their Polish rivals just to penalise them. The Polish government, led by the right-wing Law and Justice party, has long argued that the country’s media landscape is dominated by foreign – mainly German and American – media groups. According to data from the Polish Press Distribution Control Association, in 2014 foreign media groups owned 138 magazines and newspapers. Domestic publishers controlled just 47 titles on the Polish market.

The rhetoric of free speech and resistance to foreign-sponsored censorship permeates Poland’s public conversation about Article 13 to a surprising degree. Polish government officials imply that upload filters could threaten democracy itself.

“Article 13 deteriorates the freedom of expression on the internet, because content providers will be inclined to do much more than they should be doing in order to stay compliant and avoid possible fines, under this article,” says Paweł Jabłoński, deputy director of the International Project Coordination Department at the chancellery of the Polish prime minister.

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“This creates an environment where copyright breach might be used as a pretext to suppress certain ways of expression, for example political. When you cannot solve something politically, you can always use the copyright infringement argument in order to get the content removed,” Jabłoński says.


According to Dr Lukasz Olejnik, a research associate at the Centre for Technology and Global Affairs at the University of Oxford, Warsaw’s complaint was meant primarily for domestic political purposes. Specifically, it was intended to position the government as a defender of internet freedoms. “You may be surprised with that. Digital freedoms were never really seriously present at the centre of [the government’s] interest, and it is far from clear if this stance will be maintained in the long run,” Olejnik says. The government's challenge to the Copyright Directive highlights how the internet is quickly becoming a battleground in Polish politics.

“The problem with the Directive is real and the threat [of abuses] exists,” says Michał Boni, an outgoing MEP from Poland and a former Minister of Digital Affairs, in opposition since the Law and Justice party came to power in 2015.

To Boni, Poland's complaint should be treated as a weapon in an ongoing domestic political conflict. He thinks that the conservative government is fighting this battle to win over younger, internet-savvy voters ahead of the parliamentary elections in October 2019.

"[The people running the government] have authoritarian inclinations, but they choose a rhetoric of freedom to build their advantage on the internet and social media, where they still feel more powerful than their opponents in the means of communication and relationship with voters,” Boni says.

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Several organisations, including Freedom House and Reporters Without Borders (RSF), have reported that Poland’s freedom of speech and freedom of the press have been deteriorating in recent years. As RSF points out, after coming to power in 2015, the conservative government renamed public media “national media” and transformed them into “propaganda mouthpieces.”

Jabłoński says that the timing of the complaint – filed in the midst of the electoral campaign for the EU parliamentary elections – was not dictated by political reasons. “That was the earliest possible date to file the case,” he says “The Directive was officially published in the Official Journal of the European Union just a week before we filed the documents”.

The case before the court has been opened, and it will take some time before we see its conclusion. Jabłoński thinks the case will probably be resolved in late 2020. “It all depends on one factor: whether two or more countries will join the case. This is possible because during the process within the Council and the Parliament six countries were against the Directive and three abstained from the vote” - Jabłoński says. In addition to Poland, several other EU member states have spoken against the Directive, including the Netherlands, Luxembourg, Italy and Finland.

"Such a complaint filed immediately following the vote is a pretty significant move and it can help to shed light on the actual implications [of the Directive],”Olejnik says. According to Jabłoński, Poland wants Article 13 to be amended or abolished. “We cannot ask the Court to amend the Directive one way or another. If ECJ decides to abolish Article 13, most probably we will go back to the Council and European Parliament with new legislation proposals,” Jabłoński says.

If the Court rules that the whole Directive is invalid, the decision applies from the day when the legislation came into force, practically cancelling the entire Directive. It is worth noting that the Directive has not yet been implemented by the member states – the deadline for the implementation is set to June 7, 2021. One exception is France, where the Directive could come into effect already by the end of 2020. Whether that will include Article 13 only time will tell.

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