October 7, 2018

Nine Green MEPs voted in favour of upload filters

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The European Parliament has voted in favour of article 13 of the copyright reform proposal. The text of article 13, as adopted by the Parliament, 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.

General mandatory upload filters are not allowed in the EU; they interfere too much with our freedom of expression. With its vote, the Parliament voted in favour of upload filters without mentioning them.

Among those in favour were nine members of the Greens group: Bové, Bütikofer, Cramer, Harms, Häusling, Heubuch, Staes, Tarand, and Trüpel. 1 This is remarkable as the Greens were united against the Anti-Counterfeiting Trade Agreement.

In a tweet Reinhard Bütikofer denied having voted in favour of upload filters:

“The report does not provide for upload filters. Show, where it does.”

The tweet does not convince. As explained above, by making platforms liable, they will have to filter to avoid liability.

In a later tweet Bütikofer mentions a change and an unsubstantiated alternative. Rapporteur Axel Voss indeed made some changes. However, the new text still contains the liability of platforms for users’ uploads. Academics concluded:

“Removing the references to filters while requiring cooperation from service providers so that infringing works uploaded by users “are not available on their services” may amount to a filtering requirement, with fundamental rights implications. The potential negative effects for new entrants, and the inconsistency with the language of the e-commerce directive also remain.”

Bütikofer’s unsubstantiated alternative would amount to the same, as the fundamental issue is the liability of platforms for users’ uploads. His later tweet doesn’t convince either.

Making the platforms liable for users’ uploads distorts the balance of responsibility found in the e-Commerce directive. This balance of responsibility greatly contributed to the growth of the internet. The Parliament’s vote damages the internet beyond interfering with our freedom of expression.

No victory for artists

Automatic filters can not identify legitimate uses under (already limited) exceptions and limitations to copyright, for example satire and criticism; this has negative effects also on artists. Cory Doctorow notes the filters may work for creators who align themselves with large entertainment corporations, but not for independents.

French music industry insider Pascal Nègre explains why article 13 is not in the interest of the music industry:

“Rather than building on embracing the way the internet allows musicians and fans to more easily engage with one another, it would erect new barriers for the creators and artists who depend on and thrive thanks to online platforms.

I care deeply about artists getting paid.

Our industry is not rigid, and I understand that some supporters of Article 13 are well-intentioned. But Article 13 doesn’t move things forward; it turns back the clock.”

In sum, it would seem, article 13 may give some artists some gain, but hurts the infrastructure for others. 2

A deeper truth?

Article 13 gives media companies leverage over internet platforms, this may be understood as a power grab. The power grab was successful while piracy is declining. 3

Despite warnings of academics, 70+ internet luminaries, the UN rapporteur on freedom of expression, civil society, lots and lots of citizens, despite having a very well informed spokesperson on this in their group, Julia Reda, nine Greens voted in favour of upload filters, in practice, and in favour of damaging the internet.

In the discussions something seems off. Could a “deeper truth”, an unspoken sentiment, play a role? Like, is the internet still worth fighting for? These American platforms squander our privacy, demolish our democracy; they deserve a good hit?

In so far such sentiments play a role: by all means, do whatever it takes to protect our personal data and democracy. Adopt strong measures, abolish targeted advertising (in political campaigns), and / or split up some platforms. But do it for the right reasons, and in a targeted way.

However, giving media corporations leverage over internet platforms is no solution for such issues. Breaking the internet doesn’t repair it.

Moreover, giving media corporations leverage over internet platforms creates a wrong dynamic. It gives media companies a reason to defend the platforms’ profits, while it is crucial to properly regulate the platforms in order to protect our personal data and democracy.

Noblesse oblige

Mike Godwin tweeted:

“The EU’s new copyright directive is the #Brexit of the internet.”

It would seem, that’s not the side of history you want to be on.

Reinhard Bütikofer’s repeated denials suggests that he is against upload filters – a positive aspect. Yet, something went wrong.

After secret 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.

Footnotes:

1

amendments 156-161, page 34 and 35; note Hautala corrected her vote.

2

Disclosure: I’m a painter. I do not make money on copyright. Limitations and exceptions to copyright, however, may be important for me.

3

A study finds that despite the decline in physical sales, the increase in digital sales led to net growth for total recorded music, audio-visual content, books and games between 2014 and 2017; expenditures on live concerts and cinema visits are growing; and finds a decreasing number of music pirates in Europe.