Earlier this week we explained how the tide is turning against the European Commission's proposal for Internet platforms to adopt new compulsory copyright filters as part of its upcoming Directive on Copyright in the Digital Single Market.
As we explained, users and even the European Parliament's Committee on the Internal Market and Consumer Protection (IMCO) have criticized the Commission's proposal, which could stifle online expression, hinder competition, and suppress legal uses
of copyrighted content, like creating and sharing Internet memes .
Since then, a leaked report has revealed that one of the European Parliament's most influential committees
has also come out against the proposal . As
the IMCO committee's report had done, the report of the European Parliament's Legal Affairs (JURI) Committee not only criticizes the upload filtering proposal (aka. Article 13, or the #censorshipmachine), but renders even harsher judgment on
a separate proposal to require online news aggregators to pay copyright-like licensing fees to the publishers they link to (aka. Article 11, or the
link tax ). We'll take these one at a time.
JURI Committee Scales Back the EU's Censorship Machine
The JURI committee would maintain the requirement for copyright holders to "take appropriate and proportionate measures to ensure the functioning of agreements concluded with rightsholders for the use of their works." But the committee
rejects the proposed requirement for automatic blocking or deletion of uploaded content, because it fails to take account of the limitations and exceptions to copyright that Europe recognizes, such as the right of quotation. The committee writes
in an Explanatory Statement:
The process cannot underestimate the effects of the identification of user uploaded content which falls within an exception or limitation to copyright. To ensure the continued use of such exceptions and limitations, which are based on public
interest concerns, communication between users and rightsholders also needs to be efficient.
The committee also affirms that the agreements between rightsholders and platforms don't detract from the safe harbor protection for platforms that Europe's E-Commerce Directive already provides (which is analogous to the DMCA safe harbor in the
U.S.). This means that if user-uploaded content appears on a platform without a license from the copyright holder, the platform's only obligation is to remove that content on receipt of a request by the copyright holder.
We would have liked to see a stronger denunciation of the mandate for Internet platforms to enter into licensing agreements with copyright holders, and we maintain that the provision is better deleted altogether. Nonetheless, the committee's
report, if reflected in the final text, should rule out the worst-case scenario of platforms being required to automatically flag and censor copyright material as it is uploaded.Â
European Link Tax Faces its Toughest Odds Ever
The leaked report goes further in its response to the link tax, recommending that it be dropped from the new copyright directive altogether. Given the failure of smaller scale link tax schemes in Germany and Spain , this was the only sensible
position for the committee to take. The Explanatory Statement to the report correctly distinguishes between two separate aspects of the use of news reporting online that the Commission's original proposal incorrectly conflates:
Digitalisation makes it easier for content found in press publications to be copied or taken. Digitalisation also facilitates access to news and press by providing digital users a referencing or indexing system that leads them to a wide range of
news and press. Both processes need to be recognised as separate processes.
Instead of introducing new monopoly rights for publishers, the JURI committee suggests simplifying the process by which publishers can take copyright infringement action in the names of the journalists whose work is appropriated. This would
address the core problem of full news reports being republished without permission, but without creating new rights over mere snippets of news that accompany links to their original sources. Far from being a problem, this use is actually
beneficial for news organizations.
The JURI committee report is just a recommendation for the amendment of the European Commission proposal, and it will still be some months before we learn whether these recommendations will be reflected in the final compromise text. Nonetheless,
it is heartening to see the extreme proposals of the Commission getting chiseled away by one of the Parliament's most influential committees.
The importance of this shouldn't be underestimated. Although the above proposals are limited to Europe at present, there is the very real prospect that, if they succeed, they will pop up in the United States as well. In fact, U.S. content
industry groups are already advocating for the adoption of an upload filtering proposal stateside. That's why it's vital not only for Europeans to speak out against these dangerous proposals, but also for Internet users around the world to stand
on guard, and to be ready to fight back.
The Premier League has secured a court order to help tackle rights-infringing video streams of football matches via Kodi set-top boxes. The order gives the league the means to have computer servers used to power the streams blocked.
Until now, it could only go after individual video streams which were relatively easy to re-establish at different links.
There have been several arrests of people selling set-top boxes pre-installed with both Kodi software and additional third-party add-ons that make it possible to watch copyright-infringing film and TV streams.
According to a recent survey commissioned by the security firm Irdeto, Kodi boxes are particularly prevalent in the UK.
It reported that 11% of Brits that admitted to watching pirated streams in a survey said they did so via a Kodi box. Doing so is not thought to be illegal. Derbyshire County Council trading standards officers recently explained:
Accessing premium paid-for content without a subscription is considered by the industry as unlawful access, although streaming something online, rather than downloading a file, is likely to be exempt from copyright laws,
That might seem a surprising position for an enforcement department to take, but support for it comes from an authoritative quarter. The European Commission doesn't believe that consumers who watch pirate streams are infringing. From the user's
perspective they equate streaming to watching, which is legitimate. The European Commission gave its view during the hearing of an important case currently before Europe's highest court involving the Dutch anti-piracy group BREIN, which wrote in
its summary of the hearing:
The case concerns the sale of a mediaplayer on which the trader has loaded add-ons that link to evidently illegal websites that link to content. For a user such a player is plug & play . This king of pre-programmed player usually are
offered with slogans like never pay again for the newest films and series and completely legal, downloading from illegal sources is prohibited but streaming is allowed . In summary the pre-judicial questions concern whether the
seller of such a mediaplayer infringes copyright and whether streaming from an illegal source is legitimate use.
It has also been reported that the UK government is considering new laws against streaming pirated content, but discussions are at an early stage
The Motion Picture Association of America will stand cheek by jowl with those European film and TV industries fighting to preserve territorial licensing monopolies in Europe.
In an interview with Variety, MPAA chairman Christopher Dodd said he would be playing a supportive role in the European industry's efforts to air its objections to a proposal for borderless access in Europe to movies and TV online. The
chief concern appears to be the European Commission's wish to extend the so-called country of origin principle to cover digital services, meaning that E.U. broadcasters could carry their online programming in other countries if they have
cleared the rights in their own home country.
Although rights-holders would be allowed to opt out of such arrangements and retain their rights in other E.U. countries, entertainment execs fear that most European producers won't have the bargaining power to insist on that in their
negotiations with the big broadcasters they rely on to finance their work.
Opposition to the commission's proposal for pan-EU digital licensing of broadcaster programming is led by France and Germany. France's Ministry of Culture had openly expressed its opposition. The upper house of Germany's parliament has also
expressed concern over whether the commission sufficiently takes into account rights-holders' interests.
The European Union agreed Tuesday on new rules allowing subscribers of online services in one E.U. country access to them while traveling in another.
The new portability ruling is the first step of regulation under a drive by the European Commission to introduce a single digital market in Europe.
Announced in May 2015, the proposed Digital Single Market was met with full-throated opposition from Hollywood and Europe's movie and TV industry, which viewed it as a threat to its territory-by-territory licensing of movies and TV shows.
The European Commission, the European Parliament and the E.U.'s Council of Ministers all agreed to new laws which will allow consumers to fully use their online subscriptions to films, sports events, e-books, video games or music services when
traveling within the E.U.
The online service providers will have nine months to adapt to the new rules, which means will come into force by the beginning of 2018.
Representatives Blake Farenthold and Jared Polis just
re-introduced their You Own Devices Act (YODA), a bill that aims to help you reclaim some of your ownership rights in the software-enabled devices you buy.
We first wrote about YODA when it was
originally introduced back in 2014 . The bill would go a ways toward curbing abusive End User License Agreements (EULAs) by making sure companies can't use restrictions on the software within your device to keep you from selling, leasing, or
giving away the device when you're done with it by. The bill would override EULAs that purport to limit your ability to transfer ownership of the device (and its software) and would make sure that whoever ends up with your device has the same
access to security and bug fixes that you would have had.