Film Industry Abandons Support of Article 13

An open letter says that the film industry has abandoned support of Europe’s Article 13 – because it supports tech companies too much.

While millions have now signed onto the petition condemning article 11 and article 13, a new opponent to Article 13 has emerged. It is certainly not from an expected source, but it appears that the film industry is joining the widespread opposition to what has been dubbed as the censorship machines.

Some might wonder if it is because they realize what a nightmare the proposed copyright legislation is for everyone. After all, even a former executive from Universal music knew that such restrictive copyright laws would set the industry back. Unfortunately, the film industry’s opposition to the copyright laws is for very different reasons than the ones an overwhelming majority of European’s feel.

In an open letter (PDF), major players in the film industry say that they are no longer supportive of the copyright legislation. From their letter:

As representatives of the audio-visual and sports sectors active across the European markets, we are extremely concerned about the direction of ongoing trilogue discussions on Article 13 (the so-called Value Gap provision) of the proposed Directive on Copyright in the Digital Single Market.

Recent proposals would undermine current case law of the Court of Justice of the European Union (CJEU) which already makes it clear that online content sharing service providers (OCSSPs) communicate to the public1 and are not eligible for the liability privilege of Article 14 E-Commerce Directive2. In addition, the proposal would further muddy the waters of jurisprudence in this area in light of the German Federal Court of Justice (Bundesgerichtshof) referral to the CJEU in a case involving YouTube/Google and certain rightholders, addressing this very issue. The referral took place by a recent decision of 13 September 2018.

Recall that the initial goal of Article 13 was to codify the existing case-law in a way that would enable right holders to better control the exploitation of their content vis a vis certain OCSSPs which currently wrongfully claim they benefit from the liability privilege of Article 14 E-Commerce Directive.

However, unfortunately, the Value Gap provision has mutated in such a way that it now strengthens even further the role of OCSSPs to the direct detriment of right holders and completely undermines the status quo in terms of the EU liability regime. Some of the options proposed for discussion at trilogue level indeed wrongfully undermine current law and weaken right holders’ exclusive rights by, among others: creating a new liability privilege for certain platforms that have taken specific steps to avoid the availability of infringing copyright content on their services (but have failed to do so
effectively), and conditioning protection of copyright online on right holders bearing the full burden of identifying and notifying copyright infringing content to platforms. These would constitute gifts to already powerful platforms, and would de facto constitute the only real change to the current status quo in legal terms, thus improving the position of platforms, but not of right holders.

Now, obviously, the industry has proven once again that there is little to no concern about how such laws would impact others. As has been made clear by many including YouTube, the proposed laws would actually be a detriment to content creators. They stand to see not only their works silenced, but also the very platforms so many use to reach an audience effectively shut down, ensuring the failure of millions of creators of both today and tomorrow.

The major corporate interests here are finding themselves condemning the laws simply because the censorship doesn’t go far enough. This does leave the door open for people to figure that no law is sufficiently protecting copyright law until the Internet is shut down entirely. That, in turn, feeds into the belief held by many that major corporate content entities continue to oppose innovation to this very day even though it has largely been to the industry’s benefit to support innovation.

For it’s part, the Electronic Frontier Foundation (EFF) took this as a further sign that support for the proposed legislation is evaporating:

Support for Article 13 is evaporating. EU Member States have come out against it. Nearly 4,000,000 Europeans have signed a petition opposing it, and independent scholars and experts have objected to it from the start.

If you’re European and you agree, you can join 4,000,000 others in calling for an end to this ridiculous, dangerous exercise.

That petition is certainly still available and European’s can still do their part to save the Internet.

At this point, since so many are opposed to the laws, then it does make the possibilities of scrapping them much more probable. If the laws are so bad that even the film industry has abandoned support for it, why should European lawmakers even proceed any further with it in the first place?

Drew Wilson on Twitter: @icecube85 and Google+.

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