Control Freaks

The EU is considering a copyright proposal that would require code-sharing platforms to monitor all content that users upload for potential copyright infringement (see the EU Commission's proposed Article 13 of the Copyright Directive ). The proposal is aimed at music and videos on streaming platforms, based on a theory of a "value gap" between the profits those platforms make from uploaded works and what copyright holders of some uploaded works receive. However, the way it's written captures many other types of content, including code.

We'd like to make sure developers in the EU who understand that automated filtering of code would make software less reliable and more expensive--and can explain this to EU policymakers--participate in the conversation.

Why you should care about upload filters

Upload filters (" censorship machines ") are one of the most controversial elements of the copyright proposal, raising a number of concerns, including:

• Privacy : Upload filters are a form of surveillance, effectively a "general monitoring obligation" prohibited by EU law
• Free speech : Requiring platforms to monitor content contradicts intermediary liability protections in EU law and creates incentives to remove content
• Ineffectiveness : Content detection tools are flawed (generate false positives, don't fit all kinds of content) and overly burdensome, especially for small and medium-sized businesses that might not be able to afford them or the resulting litigation

Upload filters are especially concerning for software developers given that:

• Software developers create copyrightable works--their code--and those who choose an open source license want to allow that code to be shared
• False positives (and negatives) are especially likely for software code because code often has many contributors and layers, often with different licensing for different components
• Requiring code-hosting platforms to scan and automatically remove content could drastically impact software developers when their dependencies are removed due to false positives

A German law requiring social media companies like Facebook and Twitter to remove reported hate speech without enough time to consider the merits of the report is set to be revised following criticism that too much online content is being blocked.

The law, called NetzDG for short, is an international test case and how it plays out is being closely watched by other countries considering similar measures.

German politicians forming a new government told Reuters they want to add an amendment to help web users get incorrectly deleted material restored online.

The lawmakers are also pushing for social media firms to set up an independent body to review and respond to reports of offensive content from the public, rather than leaving to the social media companies who by definition care more about profits than supporting free speech.

Such a system, similar to how video games are policed in Germany, could allow a more considered approach to complex decisions about whether to block content, legal experts say.

Facebook, which says it has 1,200 people in Germany working on reviewing posts out of 14,000 globally responsible for moderating content and account security, said it was not pursuing a strategy to delete more than necessary. Richard Allan, Facebook's vice president for EMEA public policy said:

People think deleting illegal content is easy but it's not. Facebook reviews every NetzDG report carefully and with legal expertise, where appropriate. When our legal experts advise us, we follow their assessment so we can meet our obligations under the law.

Johannes Ferchner, spokesman on justice and consumer protection for the Social Democrats and one of the architects of the law said:

We will add a provision so that users have a legal possibility to have unjustly deleted content restored.

Thomas Jarzombek, a Christian Democrat who helped refine the law, said the separate body to review complaints should be established, adding that social media companies were deleting too much online content. NetzDG already allows for such a self-regulatory body, but companies have chosen to go their own way instead. According to the coalition agreement, both parties want to develop the law to encourage the establishment of such a body.

Last week, the European Parliament's MEP in charge of overhauling the EU's copyright laws did a U-turn on his predecessor's position. Axel Voss is charged with making the EU's copyright laws fit for the Internet Age, yet in a staggering disregard for advice from all quarters, he decided to include a obligation on websites to automatically filter content.

Article 13 sets out how online platforms should manage user-uploaded content appears to have the most dangerous implications for fundamental rights. Never mind that the new Article 13 proposal runs directly contrary to an existing EU law -- the eCommerce Directive - which prohibits member states from imposing general monitoring obligations on hosting providers.

Six countries -- Belgium, the Czech Republic, Finland, Hungary, Ireland, and the Netherlands -- sought advice from the Council's Legal Service last July, asked specifically if the standalone measure/obligation as currently proposed under Article 13 [would] be compatible with the Charter of Human Rights and queried are the proposed measures justified and proportionate? But this does not seem to have been addressed.

The aim of the rule, which is in line with the European Commission's proposals more than a year ago, is to strengthen the music industry in negotiations with the likes of YouTube, Dailymotion, etc. Under Voss' revised Article 13, websites and apps that allow users to upload content must acquire copyright licenses for EVERYTHING, something that is in practice impossible. If they cannot, those platforms must filter all user-uploaded content.

The truth is that this latest copyright law proposal favors the rights-holders above anyone else. And we though MEPs represented the people.

Google has tweaked its Google's image search to make it slightly more difficult to view images in full size before downloading them. Google has also added a more prominent copyright warning.

Google acted as part of a peace deal with photo library Getty Images.  In 2017, Getty Images complained to the European Commission, accusing Google of anti-competitive practices.

Google said it had removed some features from image search, including the view image button. Images can still be viewed in full size from the right click menu, at least on my Windows version of Firefox. Google also removed the search by image button, which was an easy way of finding larger copies of photographs. Perhaps the tweaks are more about restricting the finding of high resolution version of image rather than worrying about standard sized images.

Getty Images is a photo library that sells the work of photographers and illustrators to businesses, newspapers and broadcasters. It complained that Google's image search made it easy for people to find Getty Images pictures and take them, without the appropriate permission or licence.

In a statement, Getty Images said:

We are pleased to announce that after working cooperatively with Google over the past months, our concerns are being recognised and we have withdrawn our complaint.

Two broadband providers, BT and EE, have gone to the Supreme Court in London to appeal two key aspects of an earlier ruling, which forced major UK ISPs to start blocking websites that were found to sell counterfeit goods.

Previously major ISPs could only be forced, via a court order, to block websites if they were found to facilitate internet copyright infringement. But in 2014 the High Court extended this to include sites that sell counterfeit goods and thus abuse company trademarks.

The providers initially appealed this decision, not least by stating that Cartier and Montblanc (they raised the original case) had provided no evidence that their networks were being abused to infringe Trade Marks and that the UK Trade Mark Act did not include a provision for website blocking. Not to mention the risk that such a law could be applied in an overzealous way, eg requiring the blocking of eBay because of one seller.

The ISPs also noted that trademark infringing sites weren't heavily used, and thus they felt as if it would not be proportionate for them to suffer the costs involved.

In April 2016 this case went to the Court of Appeal (London) and the ISPs lost and so the appeal to the Supreme Court.

In a new campaign video, several Members of the European Parliament warn that the EU's proposed mandatory upload filters pose a threat to freedom of speech. The new filters would function as censorship machines which are "completely disproportionate," they say. The MEPs encourage the public to speak up, while they still can.

Through a series of new proposals, the European Commission is working hard to modernize EU copyright law. Among other things, it will require online services to do more to fight piracy.  

These proposals have not been without controversy. Article 13 of the proposed Copyright Directive, for example, has been widely criticized as it would require online services to monitor and filter uploaded content.

This means that online services, which deal with large volumes of user-uploaded content, must use fingerprinting or other detection mechanisms -- similar to YouTube's Content-ID system -- to block copyright infringing files.

The Commission believes that more stringent control is needed to support copyright holders. However, many legal scholars , digital activists , and members of the public worry that they will violate the rights of regular Internet users.

In the European Parliament, there is fierce opposition as well. Today, six Members of Parliament (MEPs) from across the political spectrum released a new campaign video warning their fellow colleagues and the public at large.

The MEPs warn that such upload filters would act as censorship machines, something they've made clear to the Council's working group on intellectual property, where the controversial proposal was discussed today.

Imagine if every time you opened your mouth, computers controlled by big companies would check what you were about to say, and have the power to prevent you from saying it, Greens/EFA MEP Julia Reda says.

A new legal proposal would make this a reality when it comes to expressing yourself online: Every clip and every photo would have to be pre-screened by some automated 'robocop' before it could be uploaded and seen online, ALDE MEP Marietje Schaake adds.

Stop censorship machines!

Schaake notes that she has dealt with the consequences of upload filters herself. When she uploaded a recording of a political speech to YouTube, the site took it down without explanation. Until this day, the MEP still doesn't know on what grounds it was removed.

These broad upload filters are completely disproportionate and a danger for freedom of speech, the MEPs warn. The automated systems make mistakes and can't properly detect whether something's fair use, for example.

Another problem is that the measures will be relatively costly for smaller companies ,which puts them at a competitive disadvantage. "Only the biggest platforms can afford them -- European competitors and small businesses will struggle," ECR MEP Dan Dalton says.

The plans can still be stopped, the MEPs say. They are currently scheduled for a vote in the Legal Affairs Committee at the end of March, and the video encourages members of the public to raise their voices.

Speak out ...while you can still do so unfiltered! S&D MEP Catherine Stihler says.

The MPA is the international wing of the Motion Picture Association of America, a trade group representing the major Hollywood studios. MPA president Stan McCoy has written an open letter to new culture secretary Matt Hancock reminding how important it is to protect the US film industry.

He needn't have bothered, the culture secretary is currently well busy suffocating the UK porn industry and handing everything over to Mindgeek, which is set to become the Facebook/Google/Amazon of the porn world.

Stan McCoy writes:

For Matt Hancock, as for any new leader, the first weeks on the job offer a unique opportunity to write the screenplay for a successful tenure.

Here are seven humble suggestions that the Culture Secretary may wish to consider as he crafts his new role...

Be a passionate ambassador for the creative industries

We are one of the country's most valuable economic and cultural assets -- worth almost £92bn, growing at twice the rate of the economy, and making a positive contribution to the UK's balance of payments. Britain's status as a center of excellence for the audiovisual sector in particular is no accident: It results from the hard work and genius of our creative workforce, complemented by the support of governments that have guided their policies toward enabling continued excellence and growth.

Support a responsible online environment

The new Secretary of State should make platform responsibility a priority. A joined-up strategy to curb proliferation of illegal, often age-inappropriate and malware-laden content online must include addressing the websites, environments and apps that host and facilitate piracy.

In addition to hurting one of Britain's most important industries, they are overwhelmingly likely to harm children and adult consumers through nasty ads, links to adult content with no age verification, scams, fraud and other unpleasantness.

Building on last year's voluntary deal with search engines, the Government should stay at the cutting edge of ensuring that everyone in the ecosystem -- including search engines, platforms and social media companies -- takes a fair share of responsibility.

Banish dodgy streaming devices from lawful commerce

Illegal streaming devices loaded with piracy apps and malware -- not to mention the occasional electrical failure -- are proliferating across the UK, to the detriment of consumers and industry.

The sector is still waiting for the Intellectual Property Office to publish the report on its Call for Views on this subject. This will be one of several opportunities, along with the promised Digital Charter, to make clear that these devices and the apps and content they supply are unacceptable, dangerous to consumers, and harmful to the creative industry.

Embrace a creative sector-friendly approach to skills

More flexibility in the Apprenticeship Levy would help, but the Government must also ensure there are no unintended consequences from its targets, and that these do not undermine existing voluntary sector-specific skills levies and other similar programmes that are putting Britons to work in film and television. Likewise, embrace the industry's efforts to educate people of all diversity profiles about career opportunities.

Brexit

Of course, the elephant in every room is Brexit. It was worrying to read that almost 27,000 creative sector jobs could be under threat from a 'no deal' hard Brexit, according to analysis commissioned by London's mayor. In fact, audiences and workers on both sides will benefit from preserving two-way trade -- whether in the form of licensing audiovisual services, welcoming creative workers, or preserving the ease of cross-border collaboration in film and television production.

Pursue export growth

Britain's audiovisual sector is a dual cultural and commercial success story, and could be a leader in showing how high-value export and investment-driven industries can make the most of the opportunities of new relationships inside and outside Europe.

The Government has the opportunity to capitalise on its strong creative export sectors -- in particular by working with the industry to explore the potential of further developing non-EU markets for UK audiovisual exports, while sustaining our large and mutually beneficial trade with the EU.

Don't forget the DSM

The UK still has a vote and a responsibility to work with EU Member States to shape the EU's Digital Single Market agenda in 2018. Most important is to oppose the "buy one Member State, get the rest thrown in" approach to licensing broadcaster online services. This is a point where the UK can work constructively with other member states trying to make sure the Commission does not inadvertently undermine the system of financing productions and thus limit the content available for consumers.