October 12, 2018

Green MEP Trüpel argues she didn’t vote in favour of upload filters

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One member of the European Parliament Greens group, Helga Trüpel, responded to the blog “Nine Green MEPs voted in favour of upload filters”. She argues that her vote in favour of article 13 copyright reform proposal is not a vote for upload filters. I am grateful for her reaction, which clarifies some issues. I will highlight some of her arguments.

The discussion below reveals that Trüpel misrepresents article 13 as notice and take down, often disregards that rights holders do not have to grant a licence, and sees filtering by humans as an alternative to automatic filtering.

This blog concludes that Trüpel is unsuccessful in arguing that a vote in favour of article 13 copyright reform proposal is not a vote in favour of upload filters. The earlier blog’s conclusion, that nine Green members of the European Parliament voted in favour of upload filters, stands.

Trüpel:

“No, no upload filters in the text. Art 13 is fighting the value gap. Platforms should license, no so called censorship machine, for a free and fair internet #copyrightdirective”

The earlier blog explained that the text of article 13 copyright reform proposal makes internet platforms liable for users’ uploads, but does not mention upload filters. However, as explained by many, including academics, if platforms are liable, they will have to filter to avoid liability.

Using the Vrijschrift account I responded:

“First, if one party is obliged to take a license (for user uploads) while the other party doesn’t have to grant it, the second party has a dominant position.”

“Second, paragraph 2a explicitly says rights holders do not have to conclude licensing agreements. In that case internet platforms have to “ensure that unauthorised protected works or other subject matter are not available on their services.”

You can find article 13 paragraph 2a here. Trüpel then mentioned an unspecified alternative to upload filters (an argument earlier used by Green member of the European Parliament Reinhard Bütikofer):

“Yes, but not necessarily by using upload filters”

Vrijschrift:

“Could you give an alternative that ensures that unauthorised protected works or other subject matter are not available on their services – that doesn’t have the shortcomings of upload filters?”

Trüpel left the alternative unspecified for a while. Pressed, she described the notice and take down system – which is the current approach – and stated humans can do it. Trüpel:

“You don‘t have to use upload filters, humans can decide to put down unauthorized content”

Taking down content is notice and take down, not article 13. Article 13’s liability for users’ uploads requires avoiding content being uploaded. With massive amounts of protected works, and massive uploads, a human upload filter will not work.

In my opinion, Trüpel admits article 13 is about filtering here:

Vrijschrift:

“You go in circles. We already discussed, and you agreed, that under article 13 par 2a rights holders do not have to grant a license.”

Trüpel:

“But if there is no license, than. there is no permission to let the unauthorized content being uploaded. The aim is to remunerate authors for their work if they want it.”

No permission to let the unauthorized content being uploaded, implies filtering. Unfortunately, later in the thread Trüpel returned to filtering is not mandatory.

Moving beyond filters, Trüpel:

“Don’t you want to pay authors for their work or don’t you want to respect their moral rights?”

On the contrary. In 2013 the FFII proposed human rights-based compulsory licenses with just remuneration (see also here). A solution based on this approach could be considered. Properly designed, it wouldn’t have the issues article 13 has.

At some point, ending the discussion, Trüpel stated:

“Because there is a majority who thinks that this regulation is necessary, minority against. That is democracy!”

The discussion reveals that Trüpel misrepresents article 13 as notice and take down, often disregards article 13 paragraph 2a (rights holders do not have to grant a licence, in that case platforms have to ensure infringing content is not available), and sees filtering by humans as an alternative to automatic filtering.

In my opinion Trüpel is unsuccessful in arguing that a vote in favour of article 13 copyright reform proposal is not a vote in favour of upload filters. The earlier blog’s conclusion, that nine Green members of the European Parliament voted in favour of upload filters, stands.

To be clear: I appreciate the aim to help artists. However, as explained in the earlier blog, the proposal may help some artists somewhat, but harms others, and harms civil rights and the internet. (See also Glyn Moody.) As an alternative a solution based on compulsory licenses with just remuneration could be considered.

Moreover, in order to protect our democracies, we have to regulate internet platforms. By giving media companies leverage over internet platforms – a power grab – media companies get an incentive to protect the internet platforms’ profits. This may harm our ability to regulate internet platforms in order to protect our democracies (also important for fighting climate change).

After closed door negotiations with the Council the proposal will come back to the European Parliament for a yes or no vote.

In my opinion, to help solve the situation they helped to create, the nine Greens have to commit – as soon as possible – to vote against any proposal that includes – de facto! – upload filters.