A project tackling issues concerning the public domain in the digital environment has called on the European Commission to abandon its proposals for mandatory service provider filtering of user-uploaded content. Communia, which has Creative Commons as a founder member, says such filters will violate users' fundamental rights.

Last September, during his State of the Union address, EU Commission President Jean-Claude Juncker announced plans to modernize copyright law in Europe.

The proposals (pdf) are part of the Digital Single Market reforms, which have been developed over the past several years.

While the proposals cover a broad range of copyright-related issues, Article 13 is one of the most controversial. The proposal requires online service providers to proactively police copyrighted content using “appropriate and proportionate measures.” User-generated content sites, for example, would be required to install fingerprinting and filtering systems to block copyright-infringing files.

The proposals quickly caused concern, with early criticism coming from Digital rights group EDRi and Julia Reda of the Pirate Party, among others. Now, an influential group founded to protect the public domain has aired its concerns.

Founded in 2007 by groups including Creative Commons and Wikimedia, Communia has a mission to protect and expand the range of content freely available to the public by limiting the scope of exclusive copyright. Until 2011 it was actually funded by the European Commission but now finds itself criticizing the EC’s proposals.

In its fifth paper published on the Commission’s proposals for reform, Communia is clear. In an effort to address the much-discussed “value gap,” any introduction of Article 13 has the potential to serve as a “censorship machine” and will violate users’ fundamental rights while distorting the existing legal framework.

“The measures proposed in the Commission’s proposal stem from an unbalanced vision of copyright as an issue between rightsholders and ‘infringers.’ The proposal chooses to ignore limitations and exceptions to copyright, fundamental freedoms, and existing users’ practices,” Communia says.

“In addition, the proposal fails to establish clear rules with regard to how citizens can use protected works in transformative ways — such as remixes and other forms of so-called ‘user-generated content’ (UGC). As a result, a system of this kind would greatly restrict the way Europeans create, share, and communicate online.”

Communia also puts emphasis on the legal uncertainty the measures in Article 13 would create. Users’ rights are completely omitted from the proposal while a lack of proportionality would “pose a dangerous precedent” in European law.

From its report it’s clear that Communia is concerned over the totality of such a filtering system. By its very nature, all user-generated content would have to be passed through it for approval, resulting in a censorship mechanism that exists “just in case” there is an infringement.

“As a result, users’ activity will be constrained before any infringement happens. This approach goes against both fundamental rights and the European law,” the project writes.

Communia also highlights an imbalance over who has access to information concerning the operation of the mechanisms proposed by Article 13. While service providers will be required to report to rightsholders on how the system is functioning, users having their content filtered (and potentially censored) will enjoy no such luxury.

“The proposed requirements for the filtering system do not include any obligation to inform users on how the system functions, or to make rights claims transparent to end users. This leaves users without information necessary to defend themselves in case their use fits one of the exceptions or limitations,” Communia warns.

Of course, not all uses of copyrighted content actually constitute copyright infringement. However, it’s unlikely that any filtering system will be sufficiently technologically advanced to determine a parody or news report from a genuine infringement of copyright, for example.

“This type of a system, combined with an ineffective redress mechanism, will create a chilling effect that will thwart users’ rights online,” Communia notes.

Also of interest is Communia’s stance that filtering of user-uploaded content could actually be contrary to EU law. In the Sabam v Netlog case the European Court of Justice ruled that hosting sites can’t be forced to filter copyrighted content. That would violate the privacy of users and hinder freedom of information, the Court said. If the Commission’s proposals extend to hosting providers, this would raise problems.

Furthermore, Communia says that the proposals contained in Article 13 also contradict the E-Commerce Directive. Service providers are not liable for information stored by their users but the group says the proposals introduces liability for hosting services that currently enjoy safe harbor.

“If the Commission’s proposal is adopted, safe harbor may be at risk because the scope of ISSPs covered by the Directive is not clear. In this way, the proposal challenges the established practice under the E-Commerce Directive, and as such is detrimental to the EU rule of law,” Communia adds.

In conclusion, the group has a simple request – that Article 13 be completely removed from the European Commission’s proposals. Failing that, Communia would like the EU legislator to clearly define how existing content may be used.

“This can be achieved by introducing in the proposal a new, mandatory exception to copyright that allows noncommercial transformative uses of copyrighted works by private individuals, and their dissemination via online platforms. Rightsholders must not be granted any authority to remove or block user uploads that fall within the scope of such an exception, or any other exception,” Communia says.

In a final demand (pdf), the group says that users should also be granted access to transparent information regarding the functioning of any filter and be able to contest any removal actions carried out by it.

Creative Commons has a run-down of issues raised by other reform proposals.