Topic: Article 13 of the EU Copyright Directive

[kat]

[UPDATE 12 Sept 2018] Copyright Directive has been passed. The exact version still to be clarified (some clauses/amendments rejected, others accepted).

[UPDATE 5th July 2018] EU Parliament rejected the Copyright Reform bill in its current form, putting it up for review in September. This means the legislation will likely be amended to make it less contentious, especially in regards to Article 11 and 13.

Parliament’s plenary voted by 318 votes to 278, with 31 abstentions to reject the negotiating mandate, proposed by the Legal Affairs Committee on 20 June. As a result, Parliament’s position will now be up for debate, amendment, and a vote during the next plenary session, in September.

TL:DR. In short the European Directive on Copyright reform essentially places the legal rights of corporations above those of sovereign Nations, the individual and those afforded through due process. In other words, the Directive grants Rights Holders supranational authority to make claims of infringement and have service providers and EU Member States act on their behalf to ensure those claims are properly prosecuted instead petition member States through their legal systems - supranational legislation in service of corporations rather than corporations subject to National legislation.


Generally speaking the use of "shall" in the following is indicative of an order or mandate (an enforceable requirement), not a request, optional obligation or other type of voluntary action.

CHAPTER 2
Certain uses of protected content by online services

Article 13
Use of protected content by information society service providers storing and giving access to large amounts of works and other subject-matter uploaded by their users

1.Information society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users shall, in cooperation with rightholders, take measures to ensure the functioning of agreements concluded with rightholders for the use of their works or other subject-matter or to prevent the availability on their services of works or other subject-matter identified by rightholders through the cooperation with the service providers. Those measures, such as the use of effective content recognition technologies, shall be appropriate and proportionate. The service providers shall provide rightholders with adequate information on the functioning and the deployment of the measures, as well as, when relevant, adequate reporting on the recognition and use of the works and other subject-matter.

2.Member States shall ensure that the service providers referred to in paragraph 1 put in place complaints and redress mechanisms that are available to users in case of disputes over the application of the measures referred to in paragraph 1.

3.Member States shall facilitate, where appropriate, the cooperation between the information society service providers and rightholders through stakeholder dialogues to define best practices, such as appropriate and proportionate content recognition technologies, taking into account, among others, the nature of the services, the availability of the technologies and their effectiveness in light of technological developments.

[source for the above | alt]

Comment;
Para. 1. In a nutshell paragraph "1" obligates content providers, that's any party or entity providing access to their own, or the content of others, enable monitoring mechanisms that filter content for suspected Infringements or Rights Holders material based on their criteria and to their satisfaction, "adequate and proportionate". The legislation does not provide remedy from inadequate or disproportionate monitoring except as outlined in Para 2 (see below). In other words Para 1. defines a playing field where rights holders are able to force service providers into actively monitoring their networks for infringements based on what may be ever-changing rules, and in ways that may subject Users to increased privacy violation risks as a consequence - the Directive effectively creates an ecosystem in which Rights Holders fish or trawl for infringements, requiring services provide 'actionable data', rather than Rights Holders prosecuting specific instances of infringement, which raise additional due-process concerns.

Para. 2. Service providers and EU member States are liable for consequences arising from monitoring, policing and prosecuting claims not Rights Holders. Remedy i.e., refuting or disputing a claim is the responsibility of service providers and member States. In other words, Rights Holders are in a position to make claims but not be held to account for false, incorrect or otherwise improper prosecution.

Para. 3. Grants Rights Holders the ability to coerce other businesses/services into compliance - essentially Rights Holders are able, through legislatively authority, to engage in anti-competitive behaviours, dictating compliance from other companies and corporations, in pursuit of their rights - their rights supersede those of others.

Additional Reading
- EU considers hyperlink Copyright
- EU Commission & Restricting YouTube for the Public Good
- MarkMonitor, AWS and site scanning abuse
- Illegal Hate Speech, the EU and Tech
- "Net Neutrality" has been hoodwinked, yet again!
- Two tier Internet - Net Neutrality has been hoodwinked
- Draft Investigatory Powers Bill (as passed "Investigatory Powers Act 2016")

Footnotes:
[1] the original, and much longer draft version (8 sub-paragraphs rather then 3) of the above can be found here "Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on copyright in the Digital Single Market - Mandate for negotiations with the European Parliament".

[ratty redemption]

damn, that sounds even more draconian than i'd previously heard. what do you think are the chances of them getting this through?

[kat]

Don't know to be honest. It's likely it will pass simply because the EU bureaucracy needs to regain ground its loosing/recoup its authority and power after #Brexit and increasing rise of "alt-right" politics favouring national sovereignty - it's not possible to have a supranational Governmental body claiming authority over Nation States unless those States agree to it, the rise of nominal nationalism (whatever its flavour) threatens that.

[ratty redemption]

interesting, so this is a lot more than a copyright protection law.

[kat]

Article 13 as amended and passed - content marked below in bold and underlined indicate amendments to the original text (full text/source);

Article 13
Use of protected content by online content sharing service providers

-1a. Without prejudice of Art. 3 (1) and (2) of the Directive 2001/29/EC online content sharing service providers perform an act of communication to the public and shall conclude fair and appropriate licensing agreements with rightholders, unless the rightholder does not wish to grant a license or licenses are not available. Licensing agreements concluded by the online content sharing service providers with rights holders shall cover the liability for works uploaded by the users of their services in line with terms and conditions set out in the licensing agreement, provided that these users do not act for commercial purposes or are not the rightholder or his representative.

1. Online content sharing service providers referred to in paragraph -1a shall, in cooperation with rightholders, take appropriate and proportionate measures to ensure the functioning of licensing agreements where concluded with rightholders for the use of their works or other subject-matter on those services.

In the absence of licensing agreements with rightsholders online content sharing  service providers shall take, in cooperation with rightholders, appropriate and proportionate measures leading to the non-availability of copyright or related-right infringing works or other subject-matter on those services, while non-infringing works and other subject matter shall remain available.

1a. Member States shall ensure that the online content sharing service providers referred to in the previous sub-paragraphs shall apply the above mentioned measures based on the relevant information provided by rightholders. The online content sharing service providers shall be transparent towards rightholders and shall inform rightholders of the measures employed, their implementation, as well as when relevant, shall periodically report on the use of the works and other subject-matter.

1.b Members States shall ensure that the implementation of such measures shall be proportionate and strike a balance between the fundamental rights of users and rightholders and shall in accordance with Article 15 of Directive 2000/31/EC, where applicable not impose a general obligation on online content sharing service providers to monitor the information which they transmit or store.

2. To prevent misuses or limitations in the exercise of exceptions and limitations to copyright law, Member States shall ensure that the service providers referred to in paragraph 1 put in place effective and expeditious complaints and redress mechanisms that are available to users in case of disputes over  the application of the measures referred to in paragraph 1. Any complaint filed under such mechanisms  shall be processed without undue delay. The rightholders should reasonably justify their decisions to  avoid arbitrary dismissal of complaints.

Moreover, in accordance with Directive 95/46/EC, Directive 2002/58/EC and the General Data Protection Regulation, the measures referred to in paragraph 1 should not require the identification of individual users and the processing of their personal data.

Member States shall also ensure that, in the context of the application of the measures referred to above, users have access to a court or other relevant judicial authority to assert the use of an exception or limitation to copyright rules.

3. Member States shall facilitate, where appropriate, the cooperation between the online content sharing service providers information society service providers, users and rightholders through stakeholder dialogues to define best practices for the implementation of the measures referred to in paragraph 1 in a manner that is proportionate and efficient, taking into account, among others, the nature of the services, the availability of technologies and their effectiveness in light of technological developments.

[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);

"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."

[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!

[ratty redemption]

yeah, it was the latter i was wondering about. do you think that would be similar tech to yt's content id matching?

[kat]

In principle YouTube's ContentID system is likely what we'll start seeing more broadly across the big platforms but the details will depend on what service providers offer to the public/Users, how its accessed, and what rights holders require of service for complacence.

What we may actually find is that the costs associated with doing this kind of filtering being so prohibitive for many, small services and start-ups in particular, they will likely just block European IPs from accessing their services than deal with the issue, especially if they're located outside the EU - even inside the EU it's going to cost a lot in R&D to develop and keep up with the ever-changing demands from rights holders who have their own platforms and networks over which content can be distributed.

[ratty redemption]

understood.

[kat]

EU Parliament rejected the Copyright Reform bill in its current form, putting it up for review in September. This means the legislation will likely be amended to make it less contentious, especially in regards to Article 11 and 13.

Parliament’s plenary voted by 318 votes to 278, with 31 abstentions to reject the negotiating mandate, proposed by the Legal Affairs Committee on 20 June. As a result, Parliament’s position will now be up for debate, amendment, and a vote during the next plenary session, in September.

[kat]

The amendment vote is tomorrow (Wednesday). Latest version of the legislation here (original proposed version).

To be clear, the vote isn't so much about establishing a protection of copy Rights, but granting the authority to oversee European wide enforcement to EU legislators, the legislation is a move by the EU to solidify the European Union using copyright issues as a 'issue' cover towards this aim.

The proposal is based on Article 114 TFEU. This Article confers on the EU the power to adopt measures which have as their object the establishment and functioning of the internal market. Since exceptions and  limitations to copyright and related rights are harmonised at EU level, the margin of manoeuver of Member States in creating or adapting them is limited. In addition, intervention at national level would not be sufficient in view of the cross-border nature of the identified issues. EU intervention is therefore needed to achieve full legal certainty as regards cross-border uses in the fields of research, education and cultural heritage.

What this does in a general sense is establish final authority over Copyright in the EU and its legal systems rather than the Courts and jurisdictions of member States; essentially the European Parliament/Union claims a superior jurisdiction over member states (member States and their Citizens are/would be subservient to the European Parliament [in matters of Copyright]) - an infringement claim argued between two countries, say the UK and France, would be determined in Brussels rather than the primary jurisdiction of the claimants (as is the case now).

In other words, the legislative proposals don't necessarily define mechanisms of arbitration rather they establish and authoritative jurisdiction - it's possible to cede non-legislative, non-formalised, authority to third parties through good-faith agreement between all concerned, what arbitration is in es essence. Ceding such legal authority is troubling.

In a nut shell it doesn't matter what the fineries of the Bill are because the issue actually being discussed is not about Copyright per se, rather the European Parliament claiming jurisdiction over copyright Europe-wide in a way that it supersedes individual State Sovereignty.