Disaster In The Making: Article 13 Puts User Rights At A Disadvantage To Corporate Greed

from the don't-let-it-happen dept

Supporters of Article 13 in the EU Copyright Directive love to insist that all of the harms and concerns that many of us raise about how it will impact user rights are wrong, because the text of Article 13 says that user rights won't be harmed. This is only sort of true. It does say that... but gives no instructions on how to make it a reality. Indeed, abiding by the rest of the law makes it impossible. In other words, it's the equivalent of a law mandating everyone flies into the Sun, and when some of us point out that we'll all burn up and die, the legislators tack onto the end of the bill "... and don't let anyone burn up and die" without any further instruction.

Specifically, in the text, it says things like the following:

The cooperation between online content service providers and rightholders shall not result in the prevention of the availability of works or other subject matter uploaded by users which do not infringe copyright and related rights, including where such works or subject matter are covered by an exception or limitation. Member States shall ensure that users in all Member States are able to rely on the following existing exceptions and limitations when uploading and making available content generated by users on online content sharing services: a) quotation, criticism, review,

b) use for the purpose of caricature, parody or pastiche.

And also they insist that this shouldn't require mandatory filters, while providing no explanation for how to abide by the law otherwise:

The application of the provisions in this article shall not lead to any general monitoring obligation as defined in Article 15 of Directive 2000/31/EC.

And, perhaps my favorite, the "and don't let this impact anything it shouldn't" clause:

This Directive shall in no way affect legitimate uses, such as uses under exceptions and limitations provided for in Union law, and shall not lead to any identification of individual users nor to the processing of their personal data, in accordance with Directive 95/46/EC, Directive 2002/58/EC and the General Data Protection Regulation.

Of course, all of that is nonsense, because before you get to that part in the Directive, you have everything else that clearly requires automated filters. Section 4 of the text says that if you haven't paid off EVERY SINGLE COPYRIGHT HOLDER, then you're liable for any infringement "unless" you make:

"best efforts to ensure the unavailability of specific works"

And, if told about certain works:

"made best efforts to prevent their future uploads"

How the hell do you "prevent their future uploads" if you're not filtering everything uploaded? And, how does an automated system determine if those future uploads are actually parody, or fair dealing, or some other exception. The general response from supporters of Article 13 is a giant shrug. As Communia notes, there is literally no way to abide by the law without filters, and it is literally impossible to comply with the section about protecting user rights:

We have taken another close look at the final version of #article13 & what we found is not pretty: For platforms #uploadfilters will be the only way to escape #copyright liability. Protecting users rights at the same time will be an impossible for them https://t.co/TwLsJvOzNh pic.twitter.com/Nf0XNp2fcd — communia (@communia_eu) March 5, 2019

If you can't see that full chart, it's reproduced here as well:

If you look at that full chart, you see something pretty important. The ordering of the obligations here is key, as pointed out by Kristofer Erickson. First up, you need to try to license all works. Second, if you fail to license all works in existence, you need to employ expensive and faulty filters to keep down anything that you've received a notice over. Only after all of that are you able to consider user rights.

To be more explicit about this, Article 13 puts user rights at the very end of the line, way past the massive corporate handout the law gives to record labels, movie studios and book publishers. Then, at the very, very end, where it doesn't even matter, it says "don't let all the bad stuff that everyone knows will happen actually happen." But it does not explain how that's possible, because it's not. The law has all sorts of problems, but trying to shove in "user rights" as subordinate to the special privileges of a few giant industries is especially disgusting and corrupt.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community. Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis. While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: article 13, corporations, filters, user rights