…and the Estonians watched and applauded?

On 26 October, Statewatch leaked 2 new Council documents on the censorship filter in Article 13. Both documents touch upon the notion of a ‘communication to the public’ and the interplay with the e-Commerce Directive.

The 1st document sets-out the questions raised to the Member States during the 17-18 October meeting of the Council Working Party on Intellectual Property, whilst the 2nd document contains the joint proposal from Spain, France and Portugal to amend Article 13 and its accompanying Recitals (37 to 39).

What do these documents show? Spain, France and Portugal are trying hard to push their agenda to (1) reform the concept of ‘communication to the public’ and (2) abolish the intermediary liability exemptions of the e-Commerce Directive (ECD) that protect online platforms (see the 2nd document). To do so, they seem to be getting the help of the Estonian Council Presidency in getting the subject on the agenda (see the 1st document). Remember ‘option B’ they put on the table at the end of August and that they are now claiming is ‘the chosen one’? But after all, isn’t Article 13 largely a French invention, as described yesterday by Professor Sirinelli during a hearing before the Commission des Affaires Culturelles of the Assemblée Nationale: see his description of the intense collaboration between the French and the Copyright Unit of the European Commission (EC) during the drafting process and his admission that the EC went further than the French dared here (after 1:19:24).

More specifically, these delegations are basically trying to rewrite the application of the ECD in the copyright field by:

defining which platforms perform an act of communication to the public and by abolishing the ECD’s intermediary liability exemptions under Article 14 for a broad range of online platforms [Article 13 §1: “(…) information service providers that store works or other subject-matter uploaded by their users and are actively involved in providing access to the public to such contents, (…) perform an act of communication to the public within the meaning of Article 3 of Directive 2001/29/EC and are deemed not to fall under Article 14 of Directive 2000/31/EC.”]

[Article 13 §1: “(…) information service providers that store works or other subject-matter uploaded by their users and are actively involved in providing access to the public to such contents, (…) perform an act of communication to the public within the meaning of Article 3 of Directive 2001/29/EC and are deemed not to fall under Article 14 of Directive 2000/31/EC.”] pushing for an obligation for online platforms to put in place ex-ante content filtering , as proposed by the European Commission (EC), hence bypassing the ECD’s prohibition against general monitoring under Article 15. [Article 13§2: “(…) take measures to prevent the availability on their services of works or other subject-matter identified by rightholders. (…) such as the use of effective content recognition technologies (…).”]

, as proposed by the European Commission (EC), hence bypassing the ECD’s prohibition against general monitoring under Article 15. [Article 13§2: “(…) take measures to prevent the availability on their services of works or other subject-matter identified by rightholders. (…) such as the use of effective content recognition technologies (…).”] requiring even more online platforms to censor content under the pretext of a ‘duty of care’, even when these platforms are not communicating to the public and are eligible for the ECD’s liability exemption under Article 14 [Recital 38: “It is also reasonable to expect a duty of care from information society service providers which, without necessarily being engaged into an act of communication to the public, nonetheless store and give access to significant amounts of protected works uploaded by their users (…) Such obligation should also apply when the information society service providers are eligible for the liability exemption set out in Article 14 of Directive 2000/31 EC (…).”]

Why do these developments worry us? Because, the Estonians framed the Council Working Party meeting agenda in such a way that Member States are being pushed in a corner to discuss something that was never part of the EC’s initial proposal in the first place. Neither Estonia, nor the EC, have called a halt to the discussions to consider more analysis of such an important matter. Instead, they are actually doing everything in their power to expedite the process.

What’s the reaction in Council? Some Member States, large and small ones, are speaking-up against these efforts, as they fear that this tinkering with such important concepts can have profound social and economic repercussions. However, to be heard, someone needs to listen on the other end. This is clearly not the case for now. The fact that the EC is being seen as running the Estonian Presidency on the copyright file, and that the Estonians allow them to do so, does not contribute to a healthy and substantiated policy debate.

What is not happening and should be done? These proposals represent substantial amendments to the EC’s original proposal. Therefore, the impact of these proposals merit to at least be properly assessed before they are taken into consideration. It is not only the case that there is no impact assessment on any changes whatsoever to the notion of a communication to the public, this has also not been the subject of a proper public consultation (even if the results are being ignored anyway). Therefore, Member States must take-up their responsibility and halt these discussions until a proper impact assessment has been conducted, instead of ignoring better regulation principles and evidenced based policy making.

Let’s have a closer look at the concept of ‘communication to the public’ and what these documents further reveal.

A Delicate Balancing Act: What’s a ‘communication to the public’?

There is no actual definition of what a ‘communication to the public’ is. However, there is a lot of jurisprudence from the Court of Justice of the European Union (CJEU) to frame the concept. The result is that this is not a concept one can easily interpet, let stand tinker with because changes to it can have profound social and economic repercussions that touch the core of the Internet as we know it. Otherwise, the CJEU and national courts would not dedicate so much effort in trying to correctly assess this concept on case-by-case basis to ensure that they get it right.

Where does this concept originate from? The concept of communication to the public stems from Article 3 of the InfoSoc Directive, which states that Member States have an obligation to: “provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them” (Article 3(1)). The concept is also referred to in Article 8 (2) of the Rental Directive.

What does the EC’s original copyright proposal say on this? Nothing. The EC’s initial copyright proposal does not propose to change this concept, nor did the EC assess the impact of introducing any changes to it or consult on such a change.

What role do the Courts play in framing this concept? The IP blog IPKat counts almost 20 CJEU cases on it. The result is that, according to 56 respected academics who co-signed a recommendation answering the multiple questions regarding the legality Article 13 that were raised by seven Member States, the CJEU “developed a complex set of conditions for identifying acts of communication to the public” (p. 5), including “additional tests (…) such as the criterion of a ‘new public’, ‘knowledge’ and a ‘profit motive'” (p. 22). Moreover, recent judgements shows that the national Courts also deviate from the CJEU’s interpretation based on the case being handed to them, as they use the margin of interpretation left to them to adapt their decisions to the case before them. In other words: the concept is dynamic and courts continuously adapt it to the reality at hand and the specifics of the case before them.

Based on the above, one can wonder why there is a sudden sense of urgency to discuss possible changes to this concept, seemingly out of the blue (at least, until one reads the France/Spain/Portugal paper)?

The Estonian Council Presidency’s Agenda: An inexplicable sense of urgency to discuss the need to clarify the concept of communication to the public & interplay with the e-Commerce Directive

During the last meeting of the Council Working Party on Intellectual Property, on 17-18 October, the Estonian Council Presidency pressured the other Member States into discussing the need to clarify the act of communication to the public and interplay with the e-Commerce Directive, by putting it on the agenda as one of the key questions to be looked at. In doing so, the Estonian Presidency seems to be (un?)willingly supporting the Spanish, French and Portuguese delegations to push the other Member States into a corner, by forcing them to consider an extremely complexe issue that was not at all on the table. Backed into a corner, it’s harder for them to punch their way out.

How is this being played? In an effort to expedite the discussions on this, the Spanish, French and Portuguese delegations circulated a working paper on 2 October with their joint proposal to amend Article 13 and its accompanying Recitals (37 to 39). Shortly after, on 12 October, the Estonian Presidency circulated the agenda for the 17-18 October meeting. Whilst the agenda talks about the expected continuation of the discussions on the proposal on copyright in the Digital Single Market, and in particular Article 13, the Presidency also suddenly invited the delegations to discuss the need to:

clarify the act of communication to the public for the services targeted by Article 13; clarify the interplay with Article 14 of e-Commerce Directive, if the communication to the public is to be clarified; and, provide for measures to prevent certain content.

Dropping such a set of questions on a Thursday prior to a meeting taking place on the next Tuesday is like entrusting a class of 9th graders with the project ‘find three concrete solutions to stop global warming, you have 5 days including the weekend’: not really a realistic assignment and clearly a result of the Trojan horse technique used by France, Spain and Portugal. Once again, we see a discussion on Article 13 is being forced upon the Member States with no proper assessment or evidence to support it! And this is even more shocking when considering the increasingly louder calls to delete Article 13 , as illustrated by a recent open letter from over 50 NGOs representing human rights and media freedom, including Human Rights Watch and Reporters without Borders.

The Estonian Presidency already used this trick when putting their compromise proposals for Article 13 on the table. Leaving no room for discussion on the actual merit and need of such a censorship filter. Instead, they twisted Member States’ arm into expressing a preference for one of the both proposals (A or B) on the table, which is a choice between bad and worse, with both options being dramatically worse than the EC’s original proposal.

What’s the reaction in Council? Some Member States, large and small ones, are speaking-up against these efforts, as they fear that this tinkering with such important concepts can have profound social and economic repercussions. However, to be heard, someone needs to listen on the other end. This is clearly not the case for now. The fact that the EC is being seen as running the Estonian Presidency on the copyright file, and that the Estonians allow them to do so, does not contribute to a healthy and substantiated policy debate. Or maybe the truth is that a couple of Member States or running the EC who in turn runs the Presidency?

Article 13 served in a special blend of Southern spices

What are the Spanish, French and Portuguese delegations trying to achieve? Their agenda is to (1) reform the concept of ‘communication to the public’ and (2) abolish the intermediary liability exemptions in the Ecommerce Directive that protect online platforms. In their amendments to Recital 37 they clearly set out this intention, as it explains that this proposal ‘clarifies’ (or rather modifies) “the conditions under which such information society service providers can be considered to perform an act of communication to the public and therefore do not fall in the scope of Article 14 of the Directive 2000/31/EC“.

What are these three delegations exactly proposing? In order to achieve this they propose an amended version of Article 13, served in a special blend of Southern spices. Their proposal strips all online platform hosting and giving access to any form of user-uploaded content from their intermediary liability exemption under the e-commerce Directive, by suddenly considering that they engage in a communication to the public. This way a number platforms can be forced to enter into licencing agreements with rightholders.

Those lucky few that could still be covered by the intermediary liability exemption, are then brought into the equation to ensure that they don’t escape the claws of the rightholders. This is done by forcing all platforms to implement effective content recognition technologies, to prevent the availability of any content identified by the rightholders. This is also emphasised in an amended Recital 38, which points out that the ‘duty of care’ of online platforms “should also apply when the information society service providers are eligible for the liability exemption”. As a reminder, that infamous ‘duty of care’ is a reference to Recital 48 of the Ecommerce Directive, and not to any legislative binding article.

Let’s look at the Spanish, French and Portuguese delegations’ Article 13 proposal in more detail. For a reminder of what’s wrong with the EC’s original proposal have a look here.

Text proposed by the Commission Amendment proposed by the

Spanish, French & Portuguese delegations Impact of the proposed changes Article 13 Article 13 Use of protected content by information society service providers storing and giving access to large amounts of works and other subject-matter uploaded by their users Use of protected content by information society service providers storing and giving access to works and other subject-matter uploaded by their users While the distinction of ‘large amounts’ is questionable as a criteria, at least it places some limits to the scope of Article 13. Removing this makes the delegations intention clear to ensure that all platforms, big or small, are covered by this provision. 1. Member States shall provide that information service providers that store works or other subject-matter

uploaded by their users and are actively involved in providing access to the public to such contents, including by optimizing the presentation of the uploaded works or subject-matter or promoting them, perform an act of communication to the public within the meaning of Article 3 of Directive 2001/29/EC and are deemed not to fall under Article 14 of Directive 2000/31/EC. This provision creates the risk for online platform hosting and giving access to any form of user-uploaded content to (1) engage in a communication to the public and (2) lose their intermediary liability exemption under the e-commerce Directive. Only 2 conditions have to be met, namely to: store works or other subject-matter uploaded by their users; and be, actively involved in providing access to the public to such contents. Suddenly Wikimedia is communicating to the public and is no longer protected under the intermediary liability exemption. But, so is a university hosting a repository for its researchers to make their publications available, or a newspaper with a comments section. They should negociate with rightholders and conclude licensing agreements. These agreements might cover the liability of the uploaders when they are not acting in a professional capacity, for such acts falling within Articles 2 and 3 of Directive 2001/29/EC. This imposes a mandatory obligation to conclude licensing agreements. To us that seems contrary to contractual freedom. What if both parties prefer another form of agreement than a license? What if the terms of the only agreement proposed are absurd? 1. Information society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users shall, in cooperation with rightholders, take measures to ensure the functioning of agreements concluded with rightholders for the use of their works or other subject-matter or to prevent the availability on their services of works or other subject-matter identified by rightholders through the cooperation with the service providers. Those measures, such as the use of effective content recognition technologies, shall be appropriate and proportionate. The service providers shall provide rightholders with adequate information on the functioning and the deployment of the measures, as well as, when relevant, adequate reporting on the recognition and use of the works and other subject-matter. 2. Without prejudice to paragraph 1, Member States shall ensure that all information society service providers that store and give access to significant amounts of copyright protected works or other subject-matter uploaded by their users, upon request from rightholders and subject to supply of the necessary data to allow the identification of their content by service providers, take measures to prevent the availability on their services of works or other subject-matter identified by rightholders. Those measures, such as the use of effective content recognition technologies, shall be appropriate and proportionate. This is without prejudice to the possibility for rightholders and information service providers of entering into voluntary agreements allowing for the use of the protected content. This provision then ensures that all online platform storing and giving access to user uploaded content are being pushed into implementing effective content recognition technologies, as they need to prevent the availability of any content identified by the rightholders. The notion of ‘large amounts’ is being turned into ‘significant amounts’. However, this does not solve anything. This continues to be one of these undefined legal concepts that is been criticised by academics, amongst others by the Max Planck Institute. Even if an online platform would conclude voluntary agreements with rightholders for the use of their content, this provision clearly does not safeguard them from being pushed into implementing effective content recognition technologies on their platform. So, as a platform you are going to be bullied in all directions, from bad agreements to even worse filtering measures. Moreover, the logic still remains one of pushing the handling of EU citizens fundamental freedoms outside the rule of law, as the measures taken will be done so under the terms and conditions of the platforms. 3. Member States shall ensure that information society service providers shall provide rightholders with adequate information on the functioning and the deployment of the measures referred to in paragraph 2. Where initially it was up to the online platform to give information about their filtering efforts to the rightholders, Member States are now being dragged in to ensure that they do so. We can imagine that Spain, France and Portugal are keen on taking up this role as ‘whip’ to ensure discipline amongst online platforms. However, it remains to be seen if other Member States are as comfortable with it. 2. Member States shall ensure that the service providers referred to in paragraph 1 put in place complaints and redress mechanisms that are available to users in case of disputes over the application of the measures referred to in paragraph 1. 4. Member States shall ensure that the information service providers referred to in paragraph 1 and paragraph 2 put in place complaints and redress mechanisms that are available to users in case of disputes over the application of the measures referred to in paragraph 2. Any complaint filed by a user under the mechanism shall be processed by the relevant rightholder within a reasonable period of time. The rightholder shall duly justify his/her decision. The recent recommendation of 56 academic already criticised the idea of promoting the rightholders to judge, jury, and executioner. Because the rightholder is “a party with strong incentives to disallow use” (p. 13). Their comment was made in the context of the Estonian Presidency’s compromise proposal, which coincidentally also proposed to do the same. Ensuring that the “rightholder shall duly justify his/her decision” is just putting a band-aid over bad legislation that will severely hamper citizens freedom of expression online. Neither the service providers nor the user will likely be temped to pick a fight with the rightholder over their decision. Oh, and still no courts involved: remember, this is all happening outside the rule of law! 3. Member States shall facilitate, where appropriate, the cooperation between the information society service providers and rightholders through stakeholder dialogues to define best practices, such as appropriate and proportionate content recognition technologies, taking into account, among others, the nature of the services, the availability of the technologies and their effectiveness in light of technological developments. 5. Member States shall facilitate, where appropriate, the cooperation between the service providers and rightholders through stakeholder dialogues to define best practices, such as the use of appropriate and proportionate content recognition technologies, taking into account, among others, the nature of the services, the availability and costs of the technologies and their effectiveness in light of technological developments. Talking about the cost of filtering technologies is the delegations’ attempt at throwing in an artificial sweetener to make it easier to swallow this bitter pill for online platforms. However, doing so neglects the fact that implementing ‘ effective content recognition technologies’ it’s not that easy as throwing a couple of bucks at it, as we have previously explained. Moreover, effective is just another word for ‘when in doubt, block’.

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