España lidera una gravísima amenaza para las libertades, el emprendimiento y el acceso a la información y al conocimiento en Internet

While the distinction of ‘large amounts’ is questionable as a criteria, at least it places some limits to the scope of Article 13. Removing this means  that all platforms, big or small, are covered by this provision. There is text implementing a form of size limit introduced in the paragraphs of the article (see below). The text also suggests that platforms ‘use’ content that is upload by third parties.

Both proposals are redefining when online platforms engage in a communication to the public. However, the Estonian proposal introduces many subtleties by, amongst other things:

• categorising platforms according to their main purpose or one of their main purposes (who’s going to judge this?); and,
• punishing service providers for organising content in a findable manner.

The result is a bonanza of legal uncertainty.

The FR, ES, PT proposal

This provision creates the risk for online platform hosting and giving access to any form of user-uploaded content to (1) engage in a communication to the public and (2) lose their intermediary liability exemption under the e-commerce Directive. Only 2 conditions have to be met, namely to:

1. store works or other subject-matter uploaded by their users; and be,
2. actively involved in providing access to the public to such contents.

Suddenly Wikimedia is communicating to the public and is no longer protected under the intermediary liability exemption. But, so is a university hosting a repository for its researchers to make their publications available, or a newspaper with a comments section.

This imposes a mandatory obligation to conclude licensing agreements. To us that seems contrary to contractual freedom. What if both parties prefer another form of agreement than a license? What if the terms of the only agreement proposed are absurd?

Those measures, such as the use of effective content recognition technologies, shall be appropriate and proportionate. This is without prejudice to the possibility for rightholders and information service providers of entering into voluntary agreements allowing for the use of the protected content.

a) to ensure the functioning of agreements concluded with rightholders for the use of their works or other subject-matter; or

b) in the absence of an agreement, to prevent the availability on their services of works or other subject-matter identified by rightholders through the cooperation with.

The measures shall be applied by the information society service providers. Those measures, such as at the use of effective content recognition technologies, request of rightholders to specific works and other subject-matter as identified by them. The measures shall be appropriate and proportionate, taking into account, among others, the nature of the services, the type of works or other protected subject-matter uploaded by the users of the services, the availability and costs of relevant technologies and their effectiveness in light of technological developments.

The notion of ‘large amounts’ is being turned into ‘significant amounts’. However, this does not solve anything, as this remains an undefined legal concept that has been criticised by academics, such as the Max Planck Institute.

The Estonian proposal

The Estonians are trying to obfuscate the fact that Article 13 remains a censorship filter by removing the reference to the use of effective content recognition technologies. However, online platforms still need to take ‘effective‘ measures to uphold their agreements with rightholders (which could contain requirements for platforms to use effective content recognition technologies), or in the absence of an agreement they still need to prevent the availability on their services of works or other subject-matter identified by rightholders. The latter will be very hard to achieve for online platform without the use of effective content recognition technologies! The fact that the paragraph keeps referring to the use technologies leaves no doubt about this.

Here again the Estonians try to add lots of words (e.g. availability, costs, effectiveness, etc.) that in their view seems to ease the pain at first sight. However, these criteria do not acknowledge that the market for filtering technologies only has a limited number of players and even less who provide ‘effective’ solutions. It also forgets that the discussions on implementing these measures will start at a level of ‘rightholder threatens to sue platform’, where the platform is likely to pretty much do anything to avoid liability and court cases in general.

The FR, ES, PT proposal

This provision then ensures that all online platform storing and giving access to user uploaded content are being pushed into implementing  effective content recognition technologies, as they need to prevent the availability of any content identified by the rightholders.

Even if an online platform would conclude voluntary agreements with rightholders for the use of their content, this provision clearly does not safeguard them from being pushed into implementing effective content recognition technologies on their platform. So, as a platform you are going to be bullied in all directions, from bad agreements to even worse filtering measures.

Moreover, the logic still remains one of pushing the handling of EU citizens fundamental freedoms outside the rule of law, as the measures taken will be done so under the terms and conditions of the platforms.

The Estonians are adding some burden on the rightholders, as they now have to request online platforms to give information them about their filtering efforts.

The provision also removes the reference to information on the recognition of works, but still remains more detailed than the vague provision put forward by the French, Spanish and Portuguese Troika.

The FR, ES, PT proposal

Where initially it was up to the online platform to give information about their filtering efforts to the rightholders, Member States are now being dragged in to ensure that they do so. We can imagine that Spain, France and Portugal are keen on taking up this role as ‘whip’ to ensure discipline amongst online platforms. However, it remains to be seen if other Member States are as comfortable with it.

The recent recommendation of 56 academic already  criticised the idea of promoting the rightholders to judge, jury, and executioner. Because the rightholder is “a party with strong incentives to disallow use” (p. 13). Their comment was made in the context of the Estonian Presidency’s compromise proposal, which coincidentally also proposed to do the same.

Ensuring that the “rightholder shall duly justify his/her decision” is just putting a band-aid over bad legislation that will severely hamper citizens freedom of expression online. Neither the service providers nor the user will likely be tempted to pick a fight with the rightholder over their decision.

Oh, and still no courts involved: remember, this is all happening outside the rule of law!

The Estonians want to remind everyone that there is no escape to this legislation by establishing one’s business outside of the EU. However, we have serious doubts about the enforcement of this provision against rogue websites based in 3rd countries. Therefore, we fear that this provision will remain toothless against the real infringing websites, whilst breaking the Internet for all users and for law abiding online platforms.

Just as in paragraph 1 the Estonians think they can alleviate a lot of the concerns surrounding the proposal by no longer explicitly talking about content recognition. This makes us wonder which ‘appropriate and proportionate technologies’ Estonian companies have invented that will magically do everything required by this Article without applying content recognition? The explicit reference to ‘technologies’ leaves very little room for alternative measures .

The FR, ES, PT proposal

Talking about the cost of filtering technologies is the delegations’ attempt at throwing in an artificial sweetener to make it easier to swallow this bitter pill for online platforms. However, doing so neglects the fact that implementing ‘effective content recognition technologies’ it’s not that easy as throwing a couple of bucks at it, as we have previously explained.

Moreover, effective is just another word for ‘when in doubt, block’.

The reform claims to harmonise copyright in the digital single market, but instead this provision encourages the creation of 27 different sets of sanctions.  Talk about missing the boat entirely!

This notion of ‘professional capacity’ is very difficult for online platforms to assess. Should they start asking all their users to provide their VAT or company number if they have one in order to define who’s ‘acting in a professional capacity’?