3rd Phase of Article 17 Implementation Consultation Concludes

The EU government has concluded it’s third phase of consultations in implementing Article 17. Some worry that copyright cannot be fixed.

Article 17 (formerly Article 13) is continuing the process of implementation. The law was more commonly referred to as the censorship machines. This is because the laws indirectly compel platforms to implement content filtering. Of course, automated censorship is highly flawed thanks in part to the fact that effective filters simply do not exist. Of course, that didn’t stop multinational corporate interests from overruling the will of the European people and getting those laws passed.

With online business, innovation, and free speech now on the ropes, digital rights organizations are forced to hang on to the hope that the laws can be tweaked during the implementation process to mitigate some of the damage the laws would cause. After some scholars have studied the implications of the law, digital rights organizations are proposing an implementation system similar to that of the DMCA notice-and-takedown system. While this American style system already has its flaws, the laws are so bad, that such a system would be a huge improvement over the current presumptive system European’s have now under these new laws. From EDRI:

Can we still fix Article 17?

On 10 February, for the first time, the dialogue gave the opportunity to discuss the central issue of Article 17 (former Article 13): the conflict between platforms’ obligations and users’ rights.

Article 17(4) requires platforms to make best efforts to avoid the availability of copyright protected content, which in practice forces the implementation of upload filters. On the other side, Article 17(7) ensures that the cooperation between rightsholders and platforms does not lead to the blocking or removal of legitimate content, such as copyright exceptions. It has been demonstrated, even during these dialogues, that filters cannot understand context and therefore cannot recognise when users make use of copyright exceptions such as criticisms or parody. Stakeholders discussed how this conflict could be addressed.

Users’ organisations presented concrete scenarios to avoid the automated blocking of content

How could this conflict be solved in practice? EDRi supports a scenario where the content flagged by filters would stay online during the whole process of review, from the moment when being uploaded, until human review, as seen in the image below.

Communia, an NGO promoting policies that expand the public domain, presented a slightly different scenario, based on recommendations from academics. They differentiate between two types of copyright infringement flagged by filters:

  • First, a “prima facie” copyright infringement, an identical or equivalent match to a protected content, which would lead to the content being automatically blocked. However, users would still be able to complain and be entitled to the safeguards of Article 17(9). Because of the potential for abuse, the proposal also includes possible sanctions for rightsholders who repeatedly make wrongful ownership claims.
  • Second, in cases of partial matches to protected content, users would be able to make declarations of lawful use, allowing their content to stay up during the whole process, until the human review.

The European Consumer Organisation BEUC also suggested that users should be educated about copyright to allow them to fully make use of this declaration.

Surprisingly, Studio 71, a global media company owned by broadcasters, presented a similar model based on the same academics paper. The difference with Communia’s scenario is the introduction of a “red button” that rightsholders would be able to use to immediately block content, even after a user makes a declaration of lawful use. Studio 71’s proposal also includes sanctions for both users and rightsholders in case of repeated abuse. They even provided evidence of their own overblocking, saying that they allegedly once wrongfully blocked 50 000 pieces of content.

The European Commission showed interest and kept asking for more details especially regarding the concrete implementation of a prima facie rule. However, it quickly became clear that most rightsholders had no interest in joining such discussion, and instead insisted that their rights should prevail and that the complaint and redress mechanism was the only solution to overblocking.

This is not the first time that stakeholders refuse to meaningfully engage in the dialogue process. On 16 January, most of them refused to provide useful input to help define important concepts of Article 17. Rightsholders have not shown interest in guidelines that would limit their blocking capabilities, and big platforms already manage their own blocking tools.

The reaction from major corporate interests are largely unsurprising. This is largely because they already got what they wanted. They also have no interest in this whole “fostering a healthy Internet” thing. If anything, they have a motive to make sure nothing changes in the laws, so refusing to cooperate in any meaningful dialogue could ultimately mean that nothing changes in the laws. After all, they have a stranglehold on the situation in the first place with the near universally unpopular laws.

Back in 2009, a Sony executive made his own controversial comments about the Internet in general. From my report at the time:

The panel was about the future of filmmaking, but that didn’t mean anyone had to like what they saw. “I’m a guy who doesn’t see anything good having come from the Internet,” said Sony Pictures Entertainment chief executive officer Michael Lynton. “Period.”

Ultimately, we see similar stakeholders refusing to cooperate in the implementation process of Article 17. The attitude expressed in those remarks back in 2009 appear to have largely stayed the same all these years later. For them, innovation, prosperity, and progress are the enemies and, as such, the Internet is something they hope just dies out and goes away. Since it didn’t do that on its own, they will do everything in their power to try and wreck it no matter the cost. Article 17 is the perfect manifestation of this anti-future attitude.

So, the fears of hitting a brick wall to mitigate all the damage these laws are quite justified. Innovative concepts are being put forth to try and temper down this free speech wrecking machine. Unfortunately, it remains to be seen if Europe can continue being a continent open to business and friendly to user rights.

Drew Wilson on Twitter: @icecube85 and Facebook.



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