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February, 2019

[4 Feb, 2019] Startups - Allied for Startups

This statement from Allied for Startups explains that:

“The latest Franco-German compromise on copyright is throwing an meagre bone to the startup communities across Europe, telling them to wait outside while media and tech companies divide the market among themselves. How can we Europe build globally competitive tech firms when everyone who attempts will be punished by rules that have been written for giants? This will not help build European scaleups or even unicorns, but will punish and ultimately drive away small companies for aiming to grow and succeed. A bad day for European competitiveness and innovation.

January, 2019

[29 Jan, 2019] Joint Letter - +85 Organisations

This joint letter from over 85 organisations explains that:

“In light of the deadlock of the negotiations on Articles 11 and 13, as well as taking into consideration the cautious stance of large parts of the creative industries, we ask you to delete Articles 11 and 13 from the proposal. This would allow for a swift continuation of the negotiations, while the issues that were originally intended to be addressed by Articles 11 and 13 could be tackled in more appropriate legal frameworks than this Copyright Directive.”

Signatories represent a broad community of stakeholders ranging from civil society organisations, creators, academics, universities, public libraries, research organisations and libraries, startups, software developers, business organisations, EU online platforms, to Internet Service Providers.

[24 Jan, 2019] Startups - Allied for Startups

This letter from Allied for Startups explains that:

“An SME exemption from Article 13 of the EU Copyright Directive is not the way to make the proposal work for startups.  (…)

Applying such a harsh liability regime to everyone will inevitably hurt the smallest the most. An exemption promises short-termed relief but will not help us to achieve the competitive future Europe’s innovators ought to be part of.”

[17 Jan, 2019] Consumers - European Consumer Organisation (BEUC)

The European Consumer Organisation (BEUC) explains that:

“BEUC is extremely concerned about the negative impact that Article 13 can have on consumers’ daily activities online. (…)

First, as things stand, Article 13 is likely to limit consumers’ freedom of expression. If adopted, the proposals tabled by the co-legislators would lead to a very problematic outcome. Platforms where consumers upload their content (e.g. Facebook, YouTube, Twitter and many others) will virtually have no other option than to put in place ex-ante automatic filtering mechanisms to prevent any copyrighted content from being uploaded.

As several examples have showed us recently, these automatic filtering tools are not intelligent enough to distinguish between copyright infringing content and content which is legally uploaded (such as content falling under the scope of an existing copyright exception). As a consequence, there is a very high chance that legal non-commercial videos created by consumers will be prevented from being uploaded.

[17 Jan, 2019] Startups - Op-ed from Allied for Startups

This op-ed from Allied for Startups explains that:

Article 13 of the Copyright Directive will force startups to police their users. It’s not just a block on content – it’s a block on innovation and creativity.

“Startups’ founders all across Europe are passionate and enthusiastic about Europe’s future, including the creative economy and technologies. Using the Internet, everyone can be a creator and a rightsholder. Founders underline that protecting intellectual property is important, but it should not come at the cost of limiting creative use of artistic works and new ideas. New technologies are an opportunity to create a more interconnected, democratic and consumer-driven creative sector. Entrepreneurs working with artificial intelligence, robotics, machine learning, content and e-commerce platforms and data analytics are not looking for a free ride, they stand ready to make a reasonable contribution to the creative value chain, but they cannot be the gunpowder for battles between internet and media giants.

[15 Jan, 2019] Creative Industry - Audiovisual and Sports Sector & Scientific Publishers

A number of players from the creative industry – mainly from the audiovisual and sports sector, joined by scientific publishers – addressed an open letter to the Council and European Parliament.

“As representatives of the audiovisual and publishing sectors active across the European markets, we are extremely and increasingly concerned about the direction of the ongoing trilogue discussions on Article 13 (the Value Gap provision) of the proposed Directive on Copyright in the Digital Single Market, as the solutions that are under discussion are worse than the current legal framework. (…)

We understand the eagerness to bring the negotiations to a close within the current mandate. However, rather than rushing the highly controversial Art. 13 and seeking conclusion of this provision, no matter the jeopardy to the European copyright framework and no matter the prejudice and damage to the creative sectors before the end of this legislative period, we urge EU co-legislators to suspend negotiations with respect to this article.”

December, 2018

[13 Dec, 2018] Creative Industry - Joint Creative Industry Letter

This joint creative industry letter explains that:

“(…) for a number of reasons, the text now put forward by the European Commission would need fundamental changes to achieve the Directive’s aim to correct the Value Gap/ Transfer of Value.

[12 Dec, 2018] Consumers - European Consumer Organisation (BEUC)

Frederico Oliveira da Silva, Legal Officer at the European Consumer Organisation (BEUC), explains that:

“The widespread use of filters could have as result that perfectly legal content created by consumers with no commercial interest whatsoever – e.g. holiday videos and home movies – may be automatically removed from the Internet. (…)

Consumers should not be side-lined and suffer collateral damage from an economic war between platforms and rightholders. They should be protected under copyright rules. (…)

In order to comply with the proposed new EU copyright rules, online platforms may have no other option than to automatically filter all the content that is being uploaded on their services.”

[5 Dec, 2018] Online Platforms - Twitch

Emmett Shear, CEO of Twitch, explains that:

“While we support reform and rights holders’ ability to be compensated for their work, we believe Article 13’s approach does needless damage to creators and to free expression on the internet worldwide. (…)

Article 13 changes the dynamic of how services like Twitch have to operate, to the detriment of creators. Because Article 13 makes Twitch liable for any potential copyright infringement activity with uploaded works, Twitch could be forced to impose filters and monitoring measures on all works uploaded by residents of the EU.”

[3 Dec, 2018] Civil Society - Joint Letter from Human & Digital Rights Organisations

This joint letter from human and digital rights organisations explains that:

“We call on EU decision-makers to avoid introducing a mandatory monitoring obligation. Automated filtering software is notoriously inaccurate and is likely to catch lawful materials that do not breach copyright and that are essential for societal and political debate and comment, such as parody or quotation. Finally, a general obligation to monitor everything a user uploads to the internet is likely to cause a chilling effect on free speech, as users will be more likely to self-censor any content that could risk triggering (inaccurate) filtering software.

November, 2018

[28 Nov, 2018] Online Platforms - Reddit

Reddit explains that:

The problem with the Directive lies in Articles 11 (link licensing fees) and 13 (copyright filter requirements), which set sweeping, vague requirements that create enormous liability for platforms like ours. These requirements eliminate the previous safe harbors that allowed us the leeway to give users the benefit of the doubt when they shared content. But under the new Directive, activity that is core to Reddit, like sharing links to news articles, or the use of existing content for creative new purposes (r/photoshopbattles, anyone?) would suddenly become questionable under the law, and it is not clear right now that there are feasible mitigating actions that we could take while preserving core site functionality. (…) Protecting rights holders need not come at the cost of silencing European internet users.

[20 Nov, 2018] Internet Industry - Joint Internet Industry Letter

This joint Internet industry letter explains that:

While it is evident that the final version of Article 13 will create a new parallel liability regime to that of the e-Commerce Directive, the scope of this new regime ought to be confined to those services which were the intended targets of this Directive and which can feasibly – either now or in the future – go about implementing some of the new asks in this copyright framework. To do otherwise would be to set insurmountable obstacles for an innovating sector, which will only stifle the sharing and enjoyment of Europe’s cultural content for future audiences. For this reason, we propose to limit the definition of online content sharing service providers to active platforms which give access to phonograms, broadcasts, films or musical works.

[19 Nov, 2018] Civil Society - Joint Civil Society Letter [54 NGOs]

This joint civil society letter explains that:

“Relying on very imperfect algorithms to regulate free speech online will put the diversity of opinions and creative content at risk. The legal uncertainty created for European companies will mean that they will never know how much filtering will be enough to be considered to be “enough” for 27 national transpositions of the Directive. The only option will be blocking of legal content.

[14 Nov, 2018] Academics - Professor Pamela Samuelson

In an interview to Pamela Samuelson, Richard M. Sherman Distinguished Professor of Law at Berkeley Law School, Director of the Berkeley Center for Law & Technology, and Co-Founder & President of the Authors Alliance, explains that:

I think that the overfiltering problem is huge and the norms are so vague. Article 13 is doomed to failure. The Digital Single Market Directive draft is some speculation that if we put these really strict rules in place, all the tech companies and platforms that can afford to license content will do that. I think that’s naive.

October, 2018

[23 Oct, 2018] Civil Society - Electronic Frontier Foundation

This letter from Cory Doctorow, Special Consultant to the Electronic Frontier Foundation (EFF), to the EU policymakers explains that:

“We believe that Articles 11 and 13 are ill-considered and should not be EU law, but even stipulating that systems like the ones contemplated by Articles 11 and 13 are desirable, the proposed text of the articles in both the Parliament and Council texts contain significant deficiencies that will subvert their stated purpose while endangering the fundamental human rights of Europeans to free expression, due process, and privacy. (…)

Article 13 contemplates that platforms will create systems to allow for thousands of copyright claims at once, by all comers, without penalty for errors or false claims. This is a recipe for mischief and must be addressed.

[22 Oct, 2018] Online Platforms - YouTube

Susan Wojcicki, CEO of YouTube, explains that:

Article 13 as written threatens to shut down the ability of millions of people — from creators like you to everyday users — to upload content to platforms like YouTube. And it threatens to block users in the EU from viewing content that is already live on the channels of creators everywhere. This includes YouTube’s incredible video library of educational content, such as language classes, physics tutorials and other how-to’s.

This legislation poses a threat to both your livelihood and your ability to share your voice with the world. And, if implemented as proposed, Article 13 threatens hundreds of thousands of jobs, European creators, businesses, artists and everyone they employ. The proposal could force platforms, like YouTube, to allow only content from a small number of large companies. It would be too risky for platforms to host content from smaller original content creators, because the platforms would now be directly liable for that content.

September, 2018

[19 Sept, 2018] Online Platforms - Wikimedia

Jan Gerlach, Stephen LaPorte and Allison Davenport from Wikimedia explain that:

Carve outs in Article 13 for small and micro enterprises, educational repositories, cloud services for individual use, open source development platforms, and online marketplaces will not be enough to safeguard the right to freedom of expression and participation in culture at a time when large internet platforms have become our fora for conversation and public discourse. To suggest that this version of Art. 13 only affects the platforms themselves misrepresents the full impact of this proposed norm to the broader internet.

[17 Sept, 2018] Online Platforms - Github

Abby Vollmer, Policy Liaison at Github, explains that:

“If Parliament’s version of the Copyright Directive becomes the law: Sites that host user-generated content may need to filter content that users upload, but ‘open source software developing platforms’ (like GitHub) wouldn’t need to. We supported a broader exclusion for software development platforms, archives, and repositories, as it would have protected more of the software development community. However, Parliament adopted the narrower language. Since elements of software development happen beyond that narrow exclusion, developers would need to consider whether they might be subject to liability for the content they host and resort to measures like filtering.

[12 Sept, 2018] Consumers - The Federation of German Consumer Organisations (Verbraucherzentrale Bundesverband e.V. – VZBV)

Klaus Müller, Executive Director of the Federation of German Consumer Organisations (Verbraucherzentrale Bundesverband e.V. – VZBV), explains that:

“The result of the vote is a great disappointment. This makes it almost certain that mandatory upload filters will be introduced. The vzbv fears that many completely legal contents of users will simply disappear. This is because upload filters cannot distinguish between permitted and prohibited uses. Filters do not know what parodies are or whether a content has been quoted.”

[Automated translation via – Original statement: “Das Abstimmungsergebnis ist eine große Enttäuschung. Damit ist so gut wie sicher, dass verpflichtende Upload-Filter kommen. Der vzbv befürchtet, dass viele vollkommen legale Inhalte von Nutzerinnen und Nutzern einfach verschwinden werden. Denn Upload-Filter können nicht zwischen erlaubten und nicht erlaubten Nutzungen unterscheiden. Filter wissen nicht was Parodien sind oder ob ein Inhalt zitiert wurde.”]

[10 Sept, 2018] Academics - European Policy for Intellectual Property (EPIP)

This statement from European Policy for Intellectual Property (EPIP), the leading scientific association for the economics and law of Intellectual Property, which was drafted at the EPIP 2018 conference (Berlin, 4-7 September 2018) explains that:

“The aim is to single out services such as YouTube as a distributor of audiovisual content who would have to obtain an ordinary copyright licence for some of their activities, if the Directive was adopted.

While we agree with the aim to make services pay that directly and unfairly compete with licensed content, there remain considerable dangers in Mr Voss’ approach. 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.

[10 Sept, 2018] Online Platforms - Joint Company Letter

Online platforms Automattic, Bandcamp, Kickstarter, Medium, Patreon, and Shapeways co-signed a letter explaining that:

“European creators currently make up a significant part of our user bases, relying on our sites to create and share their work. Article 13 will have a negative impact on the ability of those creators to access new audiences, customers, and supporters. This lack of access will increasingly disadvantage EU users and companies and will have a negative impact on the overall EU creative economy. (…)

Ultimately, Article 13 will hurt creators in Europe and make it harder for our companies to compete with the dominant incumbents. We ask that you recognize this proposal’s negative impact on EU creators and reconsider imposing an ill-fitting filtering mandate on Internet platforms like ours.

[10 Sept, 2018] Online Platforms - Cloudflare

Caroline Greer, Head of European Public Policy at Cloudflare, explains that:

“The proposal threatens the freedom of expression and information and upsets the balance of rights that has been so important to Internet innovation. Creators, users and independent businesses alike – any content that is uploaded may be deleted without your consent by Internet providers anxious not to incur legal liability. The right to freedom to access information and the right to conduct a business are also now at risk. (…)

Start-ups and smaller businesses will  be heavily burdened by the new obligations, meaning that the internet giants will gain an even deeper foothold in the marketplace.  (…) Europe will simply lose out, as smaller companies look to other geographic markets and users face restricted choice.

August, 2018

[24 Aug, 2018] Online Platforms - Github

Abby Vollmer, Policy Liaison at Github, explains that:

“Upload filters (Article 13): Automated filtering of code would make software less reliable and more expensive. Upload filters pose larger concerns—like censorship, free speech, privacy, and ineffectiveness—and are problematic for all kinds of content, including software code.

July, 2018

[3 July, 2018] EU Institutions - European Data Protection Supervisor (EDPS)

Giovanni Buttarelli, the European Data Protection Supervisor (EDPS), explains that:

Legal certainty and clarity of this provision is therefore essential to avoid disproportionate or unnecessary limitations on the exercise of fundamental rights as well the possible impact on competition. (…)

the processes of uploading, ensuring that no copyright infringing material is available and providing for a complaint and redress mechanism would appear to make it very difficult if not impossible for the platform to avoid processing personal data. (…)

service providers, whose services fall fully in the scope covered by the measures provided for by Article 13, may find it necessary to apply these measures to all content their users attempt to upload.

the effect of an obligation to prevent copyright infringements should not be to limit the rights and freedoms of individuals under the Charter, nor should it be to further distort competition in an already over concentrated market. (…)

recommends the co-legislator continue to reflect carefully on likely practical consequences of the obligations created in Article 13 (1), on the risk of interference with fundamental rights and of circumvention of safeguards, and on the potential for distorting competition in ways which will harm fundamental rights. In such a delicate area, EU law must be as precise and clear as possible. The EU should vigilantly evaluate the implementation of the directive and ensure that data protection by design and other safeguards are effectively put into place.”

[3 July, 2018] Online Platforms - UpCloud

Antti Vilpponen, CEO of UpCloud, explains that:

“It is in everyone’s interest that legislation is up to date and does what it is supposed to do. However, with the proposed Article 13 though, the collateral harm it delivers to law-abiding companies, customers and markets are simply too heavy. All of the potential costs will have to be absorbed by customers and this would seriously harm the ability of the European technology industry at large to compete on a global level. This is why we as a company stand against Article 13.

[2 July, 2018] Joint Letter - +165 Organisations

This joint letter from over 165 organisations explains that:

“As pointed out previously, the draft on the table represents a huge gap between stated intentions and the damage that the text will actually achieve:

  • Article 13 (user uploads) creates a direct liability regime for a vast area of online platforms that negates the E-commerce Directive, which will entail the putting in place of filters with a high likelihood of over blocking practices, to avoid incurring such liability.”

Signatories include: European and global organisations, as well as national organisations from 28 EU Member States, representing representing human, privacy, civil rights and media freedom organisations, start-ups, software developers, publishers, creators, journalists, radios, libraries, higher education and research institutions

June, 2018

[29 June, 2018] Academics - Leading EU IP Academics

This statement from leading European Intellectual Property academics explains that:

The academic community across Europe has been united in their assessment that the evidence does not support the provisions in Article 11 and Article 13. We urge you to support proposals that do not change the underlying balance between innovation and creative investment. Reasonable solutions to Article 11 and Article 13 are available.  (…)

It does not happen often that there is wide scientific consensus on a contested policy issue. This is such a case, and policy makers need to take note.”

Coordinating academics: Christina Angelopoulos; Lionel Bently, Stef van Gompel, Martin Husovec, Martin Kretschmer, Martin Senftleben, Sophie Stalla-Bourdillon

[29 June, 2018] Online Platforms - Wikimedia

Eileen Hershenov, General Counsel at Wikimedia Foundation, explains that:

“The requirement for platforms to implement upload filters is a serious threat for freedom of expression and privacy. Our foundational vision depends on the free exchange of knowledge across the entirety of the web, and beyond the boundaries of the Wikimedia projects. (…) The proposal does not support user rights, is missing strong safeguards for the public domain, and does not create exceptions that would truly empower people to participate in research and culture.

[25 June, 2018] Online Platforms - Cloudflare

Caroline Greer, Head of European Public Policy at Cloudflare, explains that:

“Unfortunately, as is now so often the case in Brussels, the new law is being drafted with a small set of large Internet companies in mind. This blinkered approach to rule-making frequently results in unintended and negative consequences for other parts of the Internet ecosystem, and indeed for end users, many of whom are often unaware that such policies are being created.

[20 June, 2018] Consumers - The Federation of German Consumer Organisations (Verbraucherzentrale Bundesverband e.V. – VZBV)

Klaus Müller, Executive Director of the Federation of German Consumer Organisations (Verbraucherzentrale Bundesverband e.V. – VZBV), explains that:

“The concern of the vzbv: Out of fear of completely unclear liability rules many contents will disappear in the net. Dubious content, so-called fake news, on the other hand, will find it even easier to spread on the internet in the future. This is not good news for consumers. If there is another vote, MEPs should stand up for users and strengthen their rights – they must prevent upload filters.

[Automated translation via – Original statement: “Die Sorge des vzbv: Aus Angst vor völlig unklaren Haftungsregeln werden viele Inhalte im Netz verschwinden. Unseriöse Inhalte, sogenannte Fake News, werden es hingegen künftig noch leichter haben, sich im Netz zu verbreiten. Das ist keine gute Nachricht für Verbraucher. Wenn es zu einer weiteren Abstimmung kommt, sollten sich die Abgeordneten für Nutzer einsetzen und ihre Rechte stärken – sie müssen Upload-Filter verhindern.”]

[19 June, 2018] Online Platforms - Qwant

Guillaume Champeau, Ethics & Legal Affairs Officer at Qwant, explains that:

“Users who feel they should be allowed to publish content will thus have the obligation to make their right recognized afterwards, thanks to appeal mechanisms that, after hours or days, will either greenlight their expression or ban them from publishing what they wanted to publish. This puts a heavy burden on robots that can’t determine when a human being is making a proportionate and legal use of a third-party content, for instance for parody, satire, reporting or criticism purposes. It will have an impact on freedom of expression, probably without ensuring new revenues for authors of copyrighted content — smaller or even bigger platforms will most often prefer blocking the sharing of any copyrighted content than paying fees that put their business at risk.

[13 June, 2018] Civil Society - UN Special Rapporteur on Freedom of Opinion & Expression

David Kaye, UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, explains that:

“Article 13 of the proposed Directive appears likely to incentivize content-sharing providers to restrict at the point of upload user-generated content that is perfectly legitimate and lawful.  Although the latest proposed versions of Article 13 do not explicitly refer to upload filters and other content recognition technologies, it couches the obligation to prevent the availability of copyright protected works in vague terms, such as demonstrating ‘best efforts’ and taking ‘effective and proportionate measures. ‘  (…)

 I am concerned that the restriction of user-generated content before
its publication subjects users to restrictions on freedom of expression without prior judicial review of the legality, necessity and proportionality of such restrictions. Exacerbating these concerns is the reality that content filtering technologies are not equipped to perform context-sensitive interpretations of the valid scope of limitations and exceptions to copyright, such as fair comment or reporting, teaching, criticism, satire and parody. (…)

I am concerned that the proposed Directive will impose undue restrictions on nonprofits and small private intermediaries. (…)

 I am very seriously concerned that the proposed Directive would establish a regime of active monitoring and prior censorship of user-generated content (…)”

[12 June, 2018] Civil Society - +70 Internet Experts

This letter from over 70 Internet Experts explains that:

“We support the consideration of measures that would improve the ability for creators to receive fair remuneration for the use of their works online. But we cannot support Article 13, which would mandate Internet platforms to embed an automated infrastructure for monitoring and censorship deep into their networks. For the sake of the Internet’s future, we urge you to vote for the deletion of this proposal.

[12 June, 2018] Online Platforms - Automattic (WordPress)

Paul Sieminski, General Counsel at Automattic (WordPress), explains that:

“We’ve also seen how copyright enforcement, without adequate procedures and safeguards to protect free expression, skews the system in favor of large, well-funded players, and against those who need protection the most: individual website owners, bloggers, and small publishers who don’t have the resources or legal wherewithal to defend their legitimate speech. Based on our experience, the changes to Article 13, while well-intentioned will almost certainly lead to a flood of unintended, but very real, censorship and chilling of legitimate, important, online speech.”

[11 June, 2018] Online Platforms - Wikimedia France

Wikimedia France explains that:

“Platforms will opt for a precautionary principle by blocking more content than necessary, which will reduce the diversity of these platforms by preventing people with little experience in new technologies from participating. For us, any attack on knowledge is an attack on the fundamental right of freedom of expression of French and European users. That is why we call on legislators to oppose the neighbouring right of Article 11 and to reject Article 13 with mandatory filtering in order to protect the freedom of expression of French and European Internet users and their right of access to knowledge.

[Automated translation via – Original statement: “Les plateformes opteront pour un principe de précaution en bloquant plus de contenu que nécessaire, ce qui réduira la diversité de ces plateformes en empêchant les personnes peu aguerrie aux nouvelles technologies d’y participer. Pour nous, toute attaque contre la connaissance est une agression contre le droit fondamental de la liberté d’expression des utilisateurs français et européens. C’est pourquoi, nous appelons les législateurs à s’opposer au droit voisin de l’article 11 et qu’ils rejettent l’article 13 avec le filtrage obligatoire afin de protéger la liberté d’expression des internautes français et européens et leur droit d’accès à la connaissance.” ]

[11 June, 2018] Online Platforms - Patreon

Weston Dombroski, Copyright Specialist at Patreon, explains that:

“Effective technological measures sound a lot like automated filters, which would be a disaster. The idea of mandatory upload filters, or censorship machines as they’re more colloquially known, has not been well received. The technology is a massively flawed, likely illegal, ineffective, self censorship inducing measure that is incompatible with other EU directives and may destroy the internet as we know it, not to mention problems of content, access and fundamental rights. (…)

Patreon too sees a value gap. The one we recognize is between the value generated from creative content and what actually finds its way to the creator (…).”

April, 2018

[26 April, 2018] Joint Letter - +145 Organisations

This joint letter from over 145 organisations explains that:

“Article 13 (user uploads) creates a liability regime for a vast area of online platforms that negates the E-commerce Directive, against the stated will of many Member States, and without any proper assessment of its impact. It creates a new ‘notice’ and takedown regime that does not require a proper notice as set out under the Ecommerce Directive, as rightholders must simply inform platforms of their works, without having to point were infringing material is located, which implies searching a needle in a haystack.”

Signatories include: European and global organisations, as well as national organisations from 28 EU Member States, representing human and digital rights, media freedom, publishers, journalists, libraries, scientific and research institutions, educational institutions including universities, creator representatives, consumers, software developers, start-ups, technology businesses and Internet service providers

[26 April, 2018] Academics - European Research Centres

This joint letter from Academics from 25 leading Intellectual Property research centres in Europe explains that:

There is scientific consensus 

  • (…) that the proposals for Art. 13 threaten the user participation benefits of the e-Commerce Directive (2000/31/EC) which shared the responsibility for enforcement between rightholders and service providers.

(…) The Copyright in the Digital Single Market Directive is now failing its stated goals to improve choice, access and fairness in the digital environment.”

[24 April, 2018] Internet Industry - DIGITALEUROPE

This letter from DIGITALEUROPE  explains that:

“As we understand that Article 13 will be the main topic for discussions at COREPER, we want to highlight that it is unclear how the text in its current form could be transposed or indeed complied with by companies. In particular, a new “notice and take down” regime that no longer requires a “notice” of an actual infringing use appears impossible. The scope of Article 13 remains far too broad and out of proportion with its stated goals. We are not aware of any calls to address a value gap in relation, for example, to open source software repositories, yet such services are only excluded if they operate on a non-profit basis (which is not the case for many such service providers).”

[16 April, 2018] Consumers - The Federation of German Consumer Organisations (Verbraucherzentrale Bundesverband e.V. – VZBV)

Klaus Müller, Executive Director of the Federation of German Consumer Organisations (Verbraucherzentrale Bundesverband e.V. – VZBV), explains that:

“There are already proven rules for dealing with copyright infringements in the digital space. Upload filters would completely bypass this rule. This is not in the interest of users. This is because a check would be carried out by machine systems, which cannot, however, make any legal assessment of what is permitted and what is not. Criticism, satire or art would thus fall by the wayside. Completely legal content would be blocked or deleted in advance for fear of liability. In addition, there are no effective measures to protect users from unlawful deletion.

[Automated translation via – Original statement: “Es gibt bereits bewährte Regelungen zum Umgang mit Urheberrechtsverletzungen im digitalen Raum. Upload-Filter würden diese Regelung komplett aushebeln. Das ist nicht im Sinne von Nutzerinnen und Nutzern. Denn eine Überprüfung würde von maschinellen Systeme übernommen werden, die jedoch gar keine rechtliche Abwägung darüber vornehmen können, was erlaubt ist und was nicht. Kritik, Satire oder Kunst blieben so auf der Strecke. Vollkommen legale Inhalte würden aus Angst vor Haftung im Vorfeld gesperrt oder gelöscht. Hinzu kommt, dass es keine wirksamen Maßnahmen gibt, um Nutzer vor unrechtmäßiger Löschung zu schützen.”]

March, 2018

[14 March, 2018] Online Platforms - Github

GitHub explains that:

“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

February, 2018

[27 Feb, 2018] Joint Letter - German Civil Society, Consumers and Startup Organisations & Online Platforms

This joint letter form German civil society, consumers and startup organisations and online platforms explains that:

“If operator liability is extended in this form, clear incentives will be provided to block content that has been lawfully posted (overblocking). The platforms will try to minimise their liability risk and will only allow content known and verified to them. Complicated considerations of what is allowed and what is not, be it criticism, satire or art, cannot be made by automated filters. There are no effective measures in place to protect legitimate content from being blocked. This means that user-generated content will disappear from the Internet.” 

[Automated translation via – Original statement: “Sollte die Betreiberhaftung in dieser Form ausgeweitet werden, werden klare Anreize gesetzt, um auch solche Inhalte zu blockieren, die rechtmäßig eingestellt wurden (Overblocking). Die Plattformen werden versuchen, ihr Haftungsrisiko zu minimieren und nur noch ihnen bekannte und geprüfte Inhalte erlauben. Komplizierte Abwägungen, was erlaubt ist und was nicht, sei es Kritik, Satire oder Kunst, können automatisierte filter nicht vornehmen. Wirksame Maßnahmen, die rechtmäßige Inhalte vor entsprechender Blockung schützen, sind nicht vorgesehen. Damit werden nutzergenerierte Inhalte aus dem Internet verschwinden.”]