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Latest Developments on the Article 17 (ex Art. 13) #CensorshipMachine

On 15 April EU Member States are likely to approve the text: The next step is the final approval of the Council (= EU Member States) at the Ministerial level, which will happen at the Agriculture and Fisheries Council meeting – read more below. Especially, German (and also Swedish) citizens can still help to make a difference against upload filters.

On 26 March the European Parliament adopted Article 17 [ex Art. 13]: The Members of the European Parliament (MEPs) adopted an EU copyright reform that forces upload filters onto the Internet – read more below. Check your country page here for more information about how your MEPs voted.

Council (= EU Member States) Approval of the Text

On 15 April the Council (= EU Member States) are likely to approve the text of the copyright Directive at the Ministerial level, which will happen at the Agriculture and Fisheries Council meeting.

This means that the copyright reform will be approved by the EU Member States Agriculture ministers, no joke! Normally, copyright matters fall under the responsibility of the Competitiveness Council. However, the Council rules are as such that “any of [the Council] configurations can adopt a Council act that falls under the remit of another configuration”. The main reason why this is the case, is because usually files are adopted at these Council meetings as so-called ‘A’ items on the agenda. An ‘A’ item implies that the Committee of Permanent Representatives (COREPER) has already finalised the discussions on the file and that an agreement is expected without debate, and these ‘A’ items are adopted ‘en block’.

In this case, the 20 February COREPER 1 meeting (= meeting of the deputy EU Member State Ambassadors) already approved the provisional copyright trilogue agreement. However, we hear you thinking: copyright hardly seems like the item that’s not being debated at the moment. Member States can make statements about ‘A’ items, which are included in the official minutes of the Council meeting, but these statements do not carry any legal value.

It is enough that one Member State requests to have a proper discussion on an ‘A’ item, in this case the copyright reform, for it to be moved to the agenda as a ‘B’ item. Such a shift would normally result in the item being deferred to a subsequent Council meeting. Although, we do not expect that to happen unless enough Member States are supportive of it, seeing that if a group of 15 EU Member States (= a simple majority) can demand that, even if a debate on it takes place, the copyright reform is still voted on at the 15 April Agriculture and Fisheries Council meeting.

In order to stop the copyright reform from being adopted at that 15 April Council meeting a so-called ‘blocking minority’ (= min. 4 EU Member States representing over 35% of the EU population) is needed. On 20 February, only the Governments of the Netherlands, Luxembourg, Poland, Italy and Finland opposed the copyright reform – see their joint statement, and Belgium and Slovenia abstained – read more below.

The Netherlands, Luxembourg, Poland, Italy and Finland, already indicated that they will vote against the reform at the 15 April Council meeting, whilst Belgium and Slovenia will continue to abstain. The Netherlands, Luxembourg, Poland, Italy and Finland have submitted their joint statement to be included in the minutes of the vote. In this joint statement these countries stress that:

“the Directive in its current form is a step back for the Digital Single Market rather than a step forward”, and they “regret that the Directive does not strike the right balance between the protection of right holders and the interests of EU citizens and companies”. In their view, the Directive “risks to hinder innovation rather than promote it and to have a negative impact the competitiveness of the European Digital Single Market”, adding that they “feel that the Directive lacks legal clarity, will lead to legal uncertainty for many stakeholders concerned and may encroach upon EU citizens’ rights”.

Opposition from the Netherlands, Luxembourg, Poland, Italy and Finland alone is not sufficient, as together they only represent just under 24% of the EU population. Only if a country like Germany or the UK would join these countries to vote against the copyright Directive, then they would reach the +35% threshold (as MEP Julia Reda also explained) to form a ‘blocking minority’. However, the chances of this happening are shrinking, but German (and also Swedish) citizens can still help to make a difference.

Germany

EDRi’s German member @digitalcourage calls on @JuliaKloeckner, the German Agriculture Minister, to vote against the copyright Directive and prevent the Article 17 (ex Art. 13) upload filters, as she will represent Germany during the vote in the @EUCouncil, at the 15 April Agriculture and Fisheries meeting. Read the letter (in German). #SaveYourInternet

Sign the Call

On 4 April, the German National Parliament (Bundestag) debated (full-recording and recordings of the individual interventions are available) for almost one hour about motions from ‘DIE LINKE.’ [PDF] and the ‘FDP’ [PDF – unofficial translation] against the upload filter provision (Article 13/17) in the copyright Directive. Under pressure from the Government coalition (CSU/CDU & SPD) no vote was held on these motions after the Parliamentary debate. Instead, instead the motions were referred back to Legal Affairs and Consumer Protection Committee for further deliberation, which will not happen in due time before the Council vote. However, there would be an opportunity for another discussion on Article 13 in the Bundestag in the week of 8 April during the ‘Aktuelle Stunde’ (= short discussion of current events).

In any case, it seems unrealistic that a vote in the Bundestag would take place in due time before the 15 April Council vote. Therefore, citizens should continue to raise their concerns, through actions such as the one above from @digitalcourage.

On 4 April, German newspaper Süddeutsche Zeitung (SZ) reported that German Justice Minister Katarina Barley (SPD) suggested to her colleagues in the Government that Germany could support the copyright reform, upon the condition of adding a 5-page statement to the Council minutes that would set out, amongst others, that Germany wants to avoid upload filters, except for ‘powerful market-players’, such as Facebook. Spiegel Online has more details on this proposed statement. However, as observed by SZ such a statement would not carry any legal value. The CSU/CDU Government coalition partners did’t even want to take Minister Barley’s idea into consideration.

Sweden

Tomas Tobé, Vice-Chairman of the Swedish National Parliament’s (Riksdag) European Union Affairs Committee, has set his mind on forcing the Swedish government to vote against the copyright Directive at the 15 April Council meeting (Sweden supported the Directive at the 20 February COREPER 1 meeting).

Journalist Emanuel Karlsten explains (in Swedish) that Tobé, joined by other Members of Parliament (MPs), will ask the EU Affairs Committee’s Chairman to summon the Minister for Justice Morgan Johansson, who’s responsible for the copyright reform, to the Committee, to join the 12 April Committee meeting to deliberate about the Swedish Governments’ position. Tobé, and these other MPs, hope to trigger a successful vote at this meeting Committee to force the Government to reject the copyright Directive in Council.

On 8 April, Tobé announced on Twitter that he secured a political majority in the EU Affairs Committee to force the Swedish Government to reject the copyright Directive on 15 April. Next to Tobé’s push against the Directive, five Swedish political youth organisations are also calling for the Swedish Government to reject the copyright Directive.

In the meantime, the Swedish Justice Minister, Morgan Johansson, continues to strongly defend the copyright Directive. Therefore, it’s important that Swedish citizens encourage their MPs in the EU Affairs Committee to push back against the copyright Directive.

European Parliament Plenary Vote

On 26 March 2019, all 750 Members of the European Parliament (MEPs) adopted an EU copyright reform that forces upload filters onto the Internet, as Article 17 (ex Art. 13) was not deleted. Check your country page here for more information about how your MEPs voted.

EDRi’s press release explains that:

“Despite the mobilisation, 348 Members of the European Parliament (MEPs) gave their support to the proposed text which includes concerning restriction to freedom of expression. Noticeably, 274 stood up with citizens and voted to reject upload filters. The proposal to open the text for amendments was rejected by five votes difference. The amendments proposing the deletion of Article 13 were not even subject to a vote.”

Over 130 MEPs from across the EU pledged in advance to vote in favour of deleting Article 17 (ex Art. 13) and against the final text of the new EU Copyright Directive if Article 17 (ex Art. 13) would remain in it. Check who pledged and how they voted.

Please note that several MEPs ended-up ‘correcting’ their vote afterwards. MEPs can ‘correct’ their vote in the official records up to 2-weeks after the vote, in order to indicate that they had the intention of voting differently than they did. These votes are marked as ‘CORRECTED’ on the country pages. These corrections do not change the actual vote results.

If you want to check out a more in-depth overview of MEPs’ voting behaviour, covering all EU Member States, please see our spreadsheet in Excel format (with graphics) or in OpenDocument format (without graphics). The official voting records provided by the European Parliament can be found here, see pp. 50-51 for the procedural vote on the possibility to change the final text and pp. 52-53 for the final vote on the Copyright Directive.

Excel Version (with Graphs)

OpenDocument Spreadsheet (without Graphs)
Recent events

JURI Committee adoption of Trilogue agreement: On 26 February, the European Parliament’s lead Legal Affairs (JURI) Committee ‘rubber-stamped’ the provisional copyright trilogue agreement – see below. See how the JURI MEPs voted here.

Trilogue agreement: On 20 February 2019, the EU Member State Deputy Ambassadors approved the provisional copyright trilogue agreement during the meeting of the Committee of Permanent Representatives (COREPER 1). At this COREPER 1 meeting, the Governments of the Netherlands, Luxembourg, Poland, Italy and Finland opposed the agreement – see their joint statement. These countries consider “that the Directive in its current form is a step back for the Digital Single Market rather than a step forward”, and add that “the Directive lacks legal clarity, will lead to legal uncertainty for many stakeholders concerned and may encroach upon EU citizens’ rights”. Belgium and Slovenia abstained from the COREPER 1 vote.

Background on the provisional copyright trilogue agreement:

On 13 February, the European Parliament and Council, represented by the Romanian Council Presidency, reached a provisional trilogue agreement on the copyright reform.

The provisional copyright trilogue agreement that got brokered between the EU institutions, which is basically the Franco-German deal on Article 17 [ex Art. 13] that was reached in Council – read more below, implies that:

  1. Platforms will have to attempt to license all the content that can be uploaded on their platform, which is unfeasible; and,
  2. Failing to licence everything, they will need to do whatever they can to prevent unauthorised content from ever appearing on their platform, which will require them to implement upload filters to censor your content.
  3. These filters will catch everything that even remotely looks suspicious, because failing to comply with the above makes platform directly liable for any possible copyright infringement on their platforms. This means that perfectly legal content will also be caught in the web of the filternet.
  4. There are so-called ‘user safeguards’ and something that the legislators dare to call a ‘user-generated content’ (UGC) provision, but both are toothless and will leave users in the cold. The upfront removal of content will leave users powerless, and complaints will be just a waste of time – especially for time-sensitive campaigning content for human and digital rights organisations. The UGC provision shows that legislators have no understanding of what they require platforms to do, as filtering mechanisms are not able to identify legal content based on conditions which normally require lawyers and judges to interpret them.

See MEP Julia Reda’s analysis and the one from CREATe for more details.

Background on the Franco-German disagreement and compromise:

On Friday 18 January 2019, the EU Member States Deputy Ambassadors gathered in a meeting of the Council’s Committee of Permanent Representatives (COREPER 1). The Romanian Council Presidency (1 Jan – 30 Jun, 2019) had requested a revised negotiation mandate on, amongst others, the Article 17 [ex Art. 13] #CensorshipMachine. At this meeting, a number of Member States (Belgium, Croatia, Germany, Finland, Italy, Luxembourg, the Netherlands, Poland, Sweden, and Slovenia) blocked the Romanian Presidency. Portugal indicated that it needs more time to take a position.

This led the Romanian Council Presidency to postponing their negotiations with the European Parliament, i.e. trilogue negotiations, which were originally scheduled for 21 January. This ‘blocking minority’ was only achieved thanks to Germany opposing the proposals on the table. More specifically, there was a disagreement between the French and German delegation about the scope of Article 17 [ex Art. 13]: the German Government wants to exclude businesses with annual revenues of up to 20 million euros per year, whilst the French Government considers that no one should fall outside the scope of the #CensorshipMachine.

The Franco-German disagreement on the fate of small- and medium enterprises (SMEs) got settled in early February, with France succeeding in maintaining all SMEs within the scope of the Article 17 [ex Art. 13] #CensorshipMachine, whilst giving the German some useless SME carve-out that will never be meaningful in practice for any ambitious EU startups, as it is still requires all SMEs to negotiate licensing agreements and only exempts very small businesses (less than 10 million euros turnover) that are less than three years old from the filtering obligations.

The result of this Franco-German “horse trading” was poured into a new revised negotiation mandate by the Romanian Council Presidency, leaked by POLITICO, and which was adopted on February 8, 2019.