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Article 13 of the EU Copyright Directive

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kat:
Comments (face value) on the amends as presented as final;

-1a. new paragraph suggests that service providers and individuals are to be liable for copyright/licencing ONLY TO THE EXTENT AS DEFINED BY RIGHTS HOLDERS where alleged infringements occur on a service (think YouTube). This is a conditional exemption of sorts – users could be liable if they break an agreement defined by rights holders with a given platform (think YouTube's ContentID system). With that said, Article 13 should not be enforced with “prejudice” towards current copyright legislation. This would make memes and viral content safe in-of-themselves under fair-use principles except to the extent that they are not commercially exploitative (as defined by rights holder/platform agreement) – making a T-Shirt of Pepe can be seen as misappropriation because it’s an act of commercial exploitation of an original image covered by ‘fair-use’ principles – the two acts are separate, creating the image (fair use), exploiting it (not(?) fair use).

1. changes here appear to limit jurisdiction to services where agreements are made – are there services where agreements might not be made? Open-source systems? Rights holders determine whether "measures" of enforcement are "appropriate and proportionate" making services subject to rights holders saying whether service providers are taking enough action to enforce agreements (this obligate service providers place technology to monitor content and take appropriate action to remove infringing material as determined by rights holders).

1. Para 2: new paragraph that the above 'enforcement' "shall" apply regardless as to their being an agreement or not. If no agreement is available service providers are obliged to seek rights holders agreement, potentially making service providers liable for not doing so.

1a. new paragraph reinforcing the above requirements that service providers be the ones to contact rights holders to inform them of enforcement policies rather than the other way around as is currently the case. Again service providers are beholden to rights holders. Paragraph also introduces potential privacy concerns by requiring services provide “relevant information” to rights holders (who determine this).

1b. new paragraph obligates Government copyright enforcement oversight, ensuring its balanced between users, services and rights holders[1].

2. changes here attempt to reinforce dispute systems without defining the terms other than in deference to rights holders – given the amount of content that’s posted or uploaded daily to Twitter, YouTube, Facebook et al, what would be considered “expeditious” treatment of disputes? Do defendants (persons against whom claims are made) see the contents of decisions or argument made justifying a rights holders decision?.

2. Para 2: new paragraph that the above is subject to Directive 95/46/EC, Directive 2002/58/EC, General Data Protection Regulation[2] that protect the privacy of individuals and the data gathered.

2. Para 3: new paragraph appears to limit the individuals rights to counter claims in the Courts to established exceptions and limitations only – this seems to imply defendants are not to be allowed(?) access to the Courts to challenge claims generally, unless/where they might rule on fair-use for example (an establish principle/exemption).

3. changes obligate Government oversight of "dialogue" to establish enforcement criteria.


Footnotes:
[1] subject to Article 15, Directive 2000/31/EC - EU Member States are under no obligation to/that force third-parties monitor their networks for any reason (essentially the EU equivalent of "Safe Harbor" principles);
--- Quote ---"No general obligation to monitor

1. Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.

2. Member States may establish obligations for information society service providers promptly to inform the competent public authorities of alleged illegal activities undertaken or information provided by recipients of their service or obligations to communicate to the competent authorities, at their request, information enabling the identification of recipients of their service with whom they have storage agreements."
--- End quote ---

[2] legislation referenced primarily establishes protections for the individuals privacy, and general obligations regarding data that might be collected and used therein;

- Directive 95/46/EC - "Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data".

- Directive 2002/58/EC – "Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications)".

- General Data Protection Regulation - "Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (Text with EEA relevance)".

ratty redemption:
thanks.

kat:
Can't really say the amendments and changes have made the situation any clearer or better, on one hand the Directive text explicitly state it cannot be used as a means to essentially over-ride more established legislation on copyright, whilst on the other simultaneously using language and terminology that suggests it can. Or that the State is responsible for policing and enforcement instead of rights holders (Civil vs. Criminal), as is the case with current copyright legislation.

The only circumstance under which the State would be lobbied in such a fashion, or placed in such a position, is if the It wanted to monitor for infringement. Which then raises the specter of State-sponsored direct censorship or censure, removal or penalising parties to a claim or content It deems inappropriate loosely based on a copyright misappropriation rationale (State using 'copyright' as a flimsy excuse to pro-actively police, censor and punish).

ratty redemption:
understood. when do you think we might see these bills being put into action?

kat:
Directives are just pits of paper so to speak, so apply immediately (unless otherwise required). Implementing filtering and monitoring systems are another question entirely!

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