Torrentfreak commented on a draft document indicating some rather censorial legislation is being considered
by the EU Commission. Torrentfreak explains:
A leaked document has revealed the EU Commission's plans for copyright in 2016. In addition to tackling the issue of content portability in the spring, the draft suggests the Commission will explore a follow-the-money approach to
enforcement, clarify rules for identifying infringers, and examine the crosss-border application of injunctions.
Noting that creative rights have little value if they cannot be enforced, the Commission calls for a balanced civil enforcement system to enable copyright holders to fight infringement more cheaply and across borders.
A 'follow-the-money' approach, which sees the involvement of different types of intermediary service providers, seems to be a particularly promising method that the Commission and Member States have started to apply in certain areas, the
It can deprive those engaging in commercial infringements of the revenue streams (for example from consumer payments and advertising) emanating from their illegal activities, and therefore act as a deterrent.
On this front the Commission says it intends to take immediate action to set up a self-regulatory mechanism with a view to reaching agreement next spring. While voluntary, the EU says the mechanism can be backed up by force if necessary.
The document also highlights a need to address the (cross-border) application of provisional and precautionary measures and injunctions . Clarification is needed, but this appears to be a reference to EU-wide site blocking.
Furthermore, the EU indicates it will examine the rules for copyright takedowns and the potential for illicit content to be taken down and remain down.
The Commission is also carrying out a comprehensive assessment and a public consultation on online platforms, which also covers 'notice and action' mechanisms and the issue of action remaining effective over time (the 'take down and stay down'
principle), the draft reads.
Finally, Julia Reda MEP is raising alarms over the Commission's intent to clarify the legal definition of communication to the public and of making available .
The Commission is considering putting the simple act of linking to content under copyright protection, Reda writes.
This idea flies in the face of both existing interpretation and spirit of the law as well as common sense. Each weblink would become a legal landmine and would allow press publishers to hold every single actor on the Internet liable.
Update: EU claims that it is not seeking a hyperlink tax or EU harmonised website blocking
Linx is a trade group of UK ISPs so has a keen interest on issues being discussed by the EU. Linx reports:
EU Commissioner Andrus Ansip has confirmed that forthcoming European copyright proposals will not include introduce ancillary copyright rules, and will not attempt to harmonise web-blocking laws across the EU.
In an interview with Politico, the European Commission Vice President for the Digital Single Market said that there were no plans to require news aggregators and pay publishers for the right to link to their content.
Ansip said that it was too early to tell what lessons would be learned from ancillary copyright laws recently passed in Spain and Germany.
Leaked EU Copyright Directive ignores ordinary internet users, presents limited reforms to support creators, researchers, teachers and librarians; while providing a sledgehammer of protectionist measures for the incumbent news, music and film industries.
Several documents have been leaked from the European Commission providing a clear picture of the proposed reforms to copyright that will be presented later in the year. The picture is quite negative as the proposals range from the timid to the openly
regressive, such as the introduction of a new ancillary right for news publishers. Several key initiatives have been dropped, including changes to the current exceptions for "freedom of panorama" that allow taking pictures of public art and
The new directive will complement and not replace current legislation such as the Infosoc Directive, although there are some minor technical modifications. Existing directives will not be reopened for discussion, thus limiting the possibilities for
reform in key areas such as Digital Rights Management. The directive applies to the European Economic Area (EEA) and will probably be relevant to the UK whatever shape Brexit eventually takes.
These leaks make the past two years of pre legislative discussions about comprehensive copyright reform feel like a waste of everyone's time, except of course for a few industry lobbyists. The EU is about to throw away the first chance in over a decade
to adapt copyright to the digital world, instead choosing classic protectionism for incumbent industries. These measures will not promote the creation of a vibrant digital industry in Europe capable of standing to Silicon Valley - as EU policymakers
Below we summarise the main contents of the leaked Directive. There are other initiatives in the wider package, including: a Regulation for online broadcasting, implementation of the Marrakesh treaty on accessibility for the visually impaired, a broad
package on copyright enforcement and more provisions to promote European works.
The contents of the Directive are a potpourri of initiatives that include some mandatory limited exceptions for culture and education and measures to help improve remunerations for creators, but in the main are openly about supporting right holders and
Protectionist measures Publishers ancillary right
This is the most controversial "reform": the creation of a completely new intellectual property right that lasts for 20 years specific for news publishers, which adds a new layer of complexity to internet regulation. The new right has the same
scope as rights of reproduction and making available and it's covered by the same exceptions, including criticism or review. The EU is open in aiming to support the financial sustainability of news publishers, and the right does not cover scientific or
academic publishers. We are not completely clear on the situation of blogs, but the right is meant to cover only publications by a "service provider".
This right is meant to stop internet news aggregators to simply copy a portion of the news article and stopping revenues flowing to the original site. Similar initiatives in Germany and Spain had a disastrous effect on media access, but we will need more
time to fully understand how bad this one is. The first analyses
are extremely negative as the new right seems even less constrained than previous initiatives.
User uploaded content: Youtube Law
Another major concession to industry aiming to address the "value gap"
created by the disparity between the number of people watching content in platforms - basically Youtube - and the revenues received. The Directive forces relevant online platforms to seek licenses from rightsholders. While there may a case for Google to
share some of its profits with rightsholders it is unclear that copyright law is the best way to do it. This law will extend beyond Youtube with unpredictable effects on internet activities, as clever lawyers cotton up to the new powers given to
This new power goes to the heart of internet regulation: the (lack of) liability of intermediaries that enables content to be hosted and linked around, expressed in the E-commerce Directive. In principle the new power covers services that go beyond
providing "mere physical facilities" and perform and "act of communication to the public" by taking an active role in curating or promoting content, but this is not always clear cut.
The Directive does not include an obligation to monitor preemptively - which would contravene other laws - but it forces the implementation of technological protection measures to protect works, such as
- with transparency obligations towards rightsholders.
Fair remuneration for authors and performers
There are some positive measures to protect creators that include transparency over online media sales, powers to renegotiate contracts and alternative dispute resolution mechanisms. Overall they seem positive albeit a bit weak, when compared with the
sledgehammers given to news publishers and the music industry.
New mandatory exceptions
These exceptions are positive but in all case limited when compared to the initial demands of libraries, educators and cultural institutions. They do not include many of the more far fetching reforms proposed by civil society and even the European
The call for a mandatory exception for "freedom of panorama" campaigned for by many civil society groups including ORG fell on deaf ears. The Commission has simply stated in their documents that the status quo works fine, while politely asking
all countries to implement the exception.
Text and Data Mining exception
This exception allows the making of copies to perform analysis for scientific research by non-profit or public interest organisations. There is no compensation for rights holders and an explicit ban on contractual clauses overriding the exception.
Technical measures to restrict access or copying are allowed but should not affect the exception.
This is a positive move, although many research organisations and libraries had been asking for a broader scope as they feared that much important research may be excluded.
Online Teaching exception
The rationale for this exception is the lack of clarity on whether existing exceptions in Infosoc and Database Directive apply to online education, particularly cross border access . The exception covers only "educational establishments," which
must control access to the resources, and will likely exclude many online educational initiatives. The exception allows for licensing schemes to take precedence over the exception and this could be used to weaken the provisions.
Libraries, archives and similar cultural heritage institutions will be allowed to make necessary copies of works for preservation, but only of works in their permanent collections. The exception is only for internal copies and not for online libraries.
Supporting the digital market
A couple of fairly minor initiatives that are positive but of limited impact in the context of the once-in-twenty-years reform of copyright.
Out of commerce works
Libraries have been lobbying for a long time to be allowed to engage in collective licensing deals to digitise and distribute out of commerce works. They see this as both an extension of their mission and an opportunity to generate funds, although in
principle this is framed as non-commercial cost recovery of the costs of mass digitisation. The exception only applies to works first published in the EU. This is not a full free copying exception, but the option to enter extended collective licensing
deals without the need to get approval from every author. There is a six month compulsory notice in case authors are around and object.
Video on demand
The directive forces member states to create a voluntary "negotiation mechanism" with the support of and impartial body to help parties license work for VoD services.
In summary, a disappointing culmination of a two year discussion that started with high hopes of seeing Europe take bold moves to really modernise copyright. The legislative process starts now however and while the UK is in the EU ORG will continue to
try to influence the shape of these laws as they go through the European Parliament. We must also remember that this is all based on leaked documents and the European Commission may still make some changes.
Open Rights Group has criticised the European Commission's proposals for the Directive on Copyright in the Single Market, published today.
Executive Director Jim Killock said:
Thousands of EU citizens responded to the consultation on copyright, only for the Commission to ignore their concerns in favour of industry. The Commission's proposals would fail to harmonise copyright law and create a fair system for Internet users,
creators and rights holders. Instead we could see new regressive rights that compel private companies to police the Internet on behalf of rights holders.
Failure to introduce EU wide freedom of panorama exception
The failure to introduce a harmonised exception for freedom of panorama is both a lost opportunity and a direct snub to the thousands of people who responded to the Commission's consultation on this. It appears that the Commission has simply ignored
their opinions and made no mention of freedom of panorama in its proposals. Freedom of panorama is a copyright exception that allows members of the public to share pictures they've taken of public buildings and art. While this right exists in the UK,
many European countries do not have this exception, which means that innocuous holiday snaps can infringe copyright.
Compelling intermediaries to filter content
The proposals aim to compel intermediaries, such as YouTube, to prevent works that infringe copyright from appearing on their services through content identification technologies . This is effect would force sites to police their platforms on behalf of
rights holders through filters and other technologies that are a blunt instrument.
Such proposals could place unreasonable burdens on smaller operators and reduce innovation among EU tech companies. They will certainly lead to a greater number of incorrect takedowns, as "Robocopy" takedowns cannot take account of fair
quotation, parody, or even use of public domain material.
These plans could undermine the UK's hard-won right to parody copyright works. Folk songs and classical performances by amateurs are often misidentified and removed as infringing 'copies' of performances of professional musicians for instance.
New ancillary copyright for news publishers
The proposals suggest a new right for news publishers, designed to prevent search engines and news aggregators from reproducing snippets at the expense of publishers. Although, this is designed to protect the media industry, it had a disastrous impact on
news websites when similar proposals were introduced in Spain and Germany. It is also disproportionate that the proposed right would last 20 years, given that it applies to news.
Open Rights Group is the UK's leading grass roots digital rights organisation, campaigning for the right to privacy and free speech.
ORG's FAQs document on freedom of panorama is available here
Meanwhile TorrentFreak has been speaking to Pirate Party MEP Julia Reda about the impossibility of the proposals for anyone except for US media giants. TorrentFreak reports:
Today, the European Commission published its long-awaited proposal to modernize the EU's copyright law. Among other things, it will require online services to install mandatory piracy filters. While the Commission intends to strengthen the position of
copyright holders, opponents warn that it will do more harm than good.
Despite earlier suggestions that geo-blocking would be banned for streaming portals such as Netflix, these ideas haven't made it into the final text. Instead, it introduces a wide range of reforms that improve the position of rights holders.
One of the suggestions that has a lot of people worried is Article 13, which requires online services to police pirated content. This means that online services, which deal with large volumes of user-uploaded content, must use fingerprinting and
filtering mechanisms to block copyright infringing files. The Commission demands:
The Commission proposal obliges such service providers to take appropriate and proportionate measures to ensure the protection of user-uploaded works, for example by putting in place content recognition technologies.
This could, for example, be similar to the Content-ID system YouTube has in place, which hasn't been without controversy itself. While the Commission stresses that small content platforms won't be subject to the requirement, the proposal doesn't define
what small means. It also fails to define what appropriate or effective content recognition systems are, creating a fair bit of uncertainty.
The Commission, however, notes that the changes are needed to reinforce the negotiating position of copyright holders, so they can sign licensing agreements with services that provide access to user uploaded content.
Perhaps not surprisingly, this language is directly aligned with recent calls from various music industry organizations. Just a few month ago the BPI asked for new legislation to prevent platforms like YouTube abusing safe harbor protections in order to
create royalty havens . With the current proposal, this wish has been partly granted.
TorrentFreak spoke with Pirate Party Member of Parliament Julia Reda who is fiercely against mandatory piracy filters.
There are countless problems with this approach. First of all, Google spent upwards of $60 million on the development of ContentID. Asking every startup or community project to make the same kind of investment is ludicrous.
Most services that deal with user-uploaded content can't invest millions into content recognition technologies so they would have to license it from others such as YouTube. This will only increase the already dominant positions of the major players.
In addition, she points out that automated systems often lead to overt mistakes and are poorly equipped to deal with the finer nuances of copyright.
Just because part of a copyright-protected work shows up in a video, that doesn't mean that the new work constitutes a copyright infringement.
There are numerous exceptions to copyright such as parody or quotation â?� different in every EU country â?� that could justify the re-use of part of a protected work. An algorithm can't detect that. It will take down lots of legal remixes
and mashups, thus stifling freedom of expression.
A valid comment, as we witnessed ourselves just a few days ago when one of our perfectly legal videos was inaccurately flagged as a copyright infringement.
YouTube aside, Reda stresses that there are many other platforms to which automated recognition systems are not well suited. Wikipedia, for example, which uses mostly Creative Commons licensed content, or services such as DeviantArt which hosts
user-uploaded artwork, or MuseScore that hosts sheet music.
There is no technology available that would reliably detect copyright infringements in these formats. The Commission is asking Internet companies to do the impossible, thus endangering collaborative communities on the Internet as well as European
And there is already a campaign in place against the EU's nasty proposals. The SaveTheLink campaign via OpenMedia writes:
The EU Commission has officially released some of the worst copyright laws in the world, including unprecedented new Link Tax powers for publishing giants.
Despite opposition from over 100,000 Internet users and dozens of other advocacy groups, the EU Commission has charged ahead with its wrong-headed plan. This will affect Internet users around the world.
This comes on the heels of a major court ruling that undermined our right to use hyperlinks. 4 This means it's more important than ever that EU decision-makers do what they can to stop this dangerous #LinkTax plan. 5
The link tax could make some of your favourite content virtually disappear from search engines. Users all over the world will be impacted.
The European Commission says Internet hosts should pre-censor everything we upload to the Internet for copyright violations. The UK agrees.
Tell the UK's Intellectual Property Office (IPO) we don't want rights holders to monitor and filter the Internet!
The European Commission has published plans to force Internet companies to filter everything we upload in case it infringes copyright laws. The UK's Intellectual Property Office wants our views on the European Commission's plans. The UK Government
is minded to support the plans if they can get them to work.
This could block Downfall parodies, campaign videos, TV clips, memes, profile pics -- anything that appears to reuse copyright content, even if it is legal to do so.
We need to stop this censorious, privacy-invading, anti-innovation proposal. Users of social media, photo, music and video sharing sites would all be hit hard.
Any company that lets you upload content to the Internet would check everything you upload against a database of copyright works - a massive violation of privacy in order to create this censorship regime.
If you want to insist on your right to publish, you'd have to supply your name and address and agree that you can be prosecuted by the rightsholder. That will put most people off taking the risk, even if they are within their rights to do so. And if
rightsholder think that websites aren't monitoring their users' uploads closely enough, they can take those websites to court too.
Companies including Google and Facebook could face repressive legislation if they don't proactively remove illegal
content from their platforms that is deemed illegal. That's according to draft EU censorship rules due to be published at the end of the month, which will require internet service providers to significantly step up their actions to address the
In the current climate, creators and distributors are forced to play a giant game of whac-a-mole to limit the unlicensed spread of their content on the Internet.
The way the law stands today in the United States, EU, and most other developed countries, copyright holders must wait for content to appear online before sending targeted takedown notices to hosts, service providers, and online platforms.
After sending several billion of these notices, patience is wearing thin, so a new plan is beginning to emerge. Rather than taking down content after it appears, major entertainment industry groups would prefer companies to take proactive action.
The upload filters currently under discussion in Europe are a prime example but are already causing controversy .
The guidelines are reportedly non-binding but further legislation in this area isn't being ruled out for Spring 2018, if companies fail to address the EU's demands.
Interestingly, however, a Commission source told Reuters that any new legislation would not change the liability exemption for online platforms. Maintaining these so-called safe harbors is a priority for online giants such as Google and Facebook
203 anything less would almost certainly be a deal-breaker.
The guidelines, due to be published at the end of September, will also encourage online platforms to publish transparency reports. These should detail the volume of notices received and actions subsequently taken. The guidelines contain some
safeguards against excessive removal of content, such as giving its owners a right to contest such a decision.
Under disgraceful plans set out last year by the European Commission, news publishers would get extra rights over their
content, giving them the right to charge and licence publishers seeking to use snippets or short quotes from articles. The policy has been dubbed 'the link tax'.
Now a key committee of the European Parliament, the Industry, Research and Energy Committee, wants to extend the proposals so that these rights would also cover publishers of academic research. Surely a nightmare for open access and open science.
Researchers might have to pay, or might at least have to ask for permission, every time they want to quote another academic's work in their piece.
If the proposed ancillary right is extended to academic publications, researchers, students and other users of scientific and scholarly journal articles could be forced to ask permission or pay fees to the publisher for including short quotations
from a research paper in other scientific publications, according to an open letter from Science Europe.
But even if this latest amendment is not adopted, the wider plan could still make it much harder for everyone, including researchers, to include quotations from news articles in their work, the organisation fears. For example, students might have
to buy a licence for every newspaper quote they use in a thesis. Links to news and the use of titles, headlines and fragments of information could now become subject to licensing. Terms could make the last two decades of news less accessible to
researchers and the public, leading to a distortion of the public's knowledge and memory of past events.
Next week, MEPs on the European Parliament's powerful Civil Liberties committee will vote on whether to approve the Link Tax and mass content filtering. With your help we've been relentlessly fighting to put a stop to this disastrous duo of
copyright policy, and this is what all that pressure and hard work comes down to.
Let's be clear: these proposals are abusing copyright to censor the Internet. Backed by powerful publishing lobbyists and unelected European Commissioners, they include sweeping powers for media giants to charge fees for links, and requirements
that websites build censorship machines to monitor and block your content. But with the help of tens of thousands of EU citizens, we've made clear to the European Parliament just how dangerous and unpopular these censorship proposals really are.
The European Commission has a well-deserved reputation for bizarre, destructive, ill-informed copyright plans for the internet , and the latest one is no exception: mandatory copyright filters for any site that allows the public to post material,
which will algorithmically determine which words, pictures and videos are lawful to post, untouched by human hands.
These filters already exist, for example in the form of Youtube's notoriously hamfisted Content ID system, which demonstrates just how bad robots are at figuring out copyright law. But even if we could make filters that were 99% accurate, this
would still be a catastrophe on a scale never seen in censorship's long and dishonorable history: when you're talking about hundreds of billions of tweets, Facebook updates, videos, pictures, posts and uploads, a 1% false-positive rate would
amount to the daily suppression of the entire Library of Alexandria, or all the TV ever broadcast up until, say, 1980.