Voices have been raised with regard to the proposed EU Directive on Copyright in the Digital Single Market Article 13, which imposes a new obligation on service providers that is seen by many as a copyright filtering technique for user-created content. Aphaia Blog editor Vasiliki Antoniadou explores what it entails.
The proposed measure intends to address the so called “value gap” appearing to affect the right holders. However, online campaigns criticise it, calling the measure #CensorshipMachine and at the same time urging European citizens to “save the meme” by influencing their MEPs to vote against Article 13. Since the procedures and lobbying is in process in the EU bodies, it remains to be seen how the new copyright reform will be formed.
Whom does the new obligation concern?
According to the proposed Directive, the new obligation refers to “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”. The definition leaves it particularly ambiguous especially with respect to the “large amounts of works” requirement. In other words EU policy makers do not mean to extend the obligation to small providers who may not be able to adopt such tools, but the article is pointing at large service providers, such as YouTube.
What does Article 13 specifically stipulate?
The proposal requires that: “The … service providers take measures to … prevent the availability on their services of works or other subject-matter identified by rightholders through the cooperation with the service providers.” It is evident that such preventive measure could only be feasible via a general filtering tool, which may scan the new user created content and either permit or reject its making available to the public.
However, a general filtering technique contravenes the current EU law and case law. Specifically, the intermediary liability of the E-Commerce Directive is ruled by the safe harbour principle, which establishes a notice and take down system for copyright protection, unless the provider is involved in that extend that the content becomes its own.
Another and more alarming consideration involves the human right of freedom of speech and data protection. The new filtering tool is feared to diminish the freedom of expression which nowadays is exercised widely via platforms such as YouTube. Some examples that might not pass the automatic test of the new filtering tool may constitute secondary works of parody and critique, which constitute an exception of copyright protection in most EU countries.
