The controversial upload filter in Europe, also referred to as the “censorship machine” is at the centre of fresh criticism.
We’ve been documenting a number of attacks on the open Internet for the last few months in North America. There’s the network neutrality repeal happening in the US. Meanwhile, in Canada, a coalition of corporate Interests including ISPs are proposing a highly controversial censorship regime which calls on Canadian regulators to censor websites outright. While these attacks on the Internet are certainly noteworthy, North America is far from the only place where attacks on the open Internet are taking place.
In Europe, there is a controversial proposal that some are referring to the “Upload Filter”. The proposal has been around since at least 2016 and continues to make headlines today. The proposal itself would mandate website platforms that accept user generated content to create filters that detect content that could contain copyrighted material.
That proposal has been catching a lot of flack for some time because few companies have the technical capabilities to even create and implement such filters. As such, only the larger players like YouTube or Facebook could implement something like that. Meanwhile, any new website could potentially be shut out of the marketplace entirely. As such, any new innovative user generated platform would get killed off before it even starts up in the first place.
Another problem with the proposal is the ramifications it could have on copyright exceptions. If, for instance, you are creating a video lecture and you happen to use a short clip from something that is copyrighted, then you would normally be qualified for fair use because you are using a piece of content for educational or critical purposes. Under the proposed upload filter rule, fair use or similar rules would not apply. As such, you would be subject to the filter anyway even if your use is perfectly legal.
More recently, there has been a proposal for a compromise on the filter. That proposal is being met with sharp criticism from digital rights organizations including EDRI:
Voss suggests that platforms that allow users to upload content are not obliged to install any pre-filtering technology, if they obtained a licensing agreement with rightsholders. Big platforms like YouTube or Facebook are already concluding such licence agreements. Facebook, for instance, recently announced the signing of a licensing agreement with Sony/ATV Music Publishing which oversees a catalogue of more than three million songs. Thanks to Voss’ proposal, the big platforms could easily avoid the obligation to implement upload filters.
Platforms like Wikipedia or also open source hosting providers like Github, however, do not have such licensing agreement. For good reasons: Their service exists to allow collaborative creation and recombination of open-licensed contents. Forcing these platforms to pay license fees or to install upload filters like Voss’ proposal foresees would be a grave interference in their freedom to conduct a business. To sum up, Voss’ “compromise” would leave most websites the choice between the devil and the deep blue sea.
In line with the original extreme position of the Commission, Voss proposes that these rules should apply to platforms where users upload “significant amounts” of content. What makes the proposal so malicious is the alleged possibility to eliminate dangers for the freedom of expression through licensing agreements. Yet, the reality is that these licensing agreements are only a realistic option for the biggest platforms.
The organization went on to levy several other complaints about the alleged compromise, saying that there is no mechanism for users to seek recourse whenever anything they legally uploaded gets deleted. They also say that the proposal violates the Charter of Fundamental Rights of the European Union.
We’ll continue to monitor the situation as events unfold.