Usual Suspects Fight Effort to Impose Online Accountability in Europe

Last week, World Intellectual Property Day commemorated the role that intellectual property rights play in encouraging innovation and creativity, with a focus on the brilliant women who are driving change around the world and shaping our future. But while World Intellectual Property Day is a time to celebrate IP and the way it incentivizes and promotes the progress of the arts and innovation, it’s also an opportunity to recognize that some groups continue to advocate for weakened IP rights that would deprive copyright owners and creators of the ability to control and commercialize their works.

One of these efforts involves the Electronic Frontier Foundation’s (“EFF”) relentless war against accountability in cyberspace, highlighted by its recent attempt to block updates to the European Digital Single Market Directive on Copyright aimed at reducing online infringement. Over the last month, the EFF has repeatedly advocated against efforts to bring about sensible copyright reform while pushing for broader open access provisions and “user rights” that would come at the expense of creators and copyright owners.

Content Filtering and Safe Harbors

In October of 2017, European lawmakers proposed updates to the Directive on Copyright in the Digital Single Market that would require online content sharing service providers (“OCSSPs”) to employ content identification technologies to prevent the upload of infringing user-generated material. The Directive is aimed at addressing the ineffective notice and takedown system which imposes an undue burden on creators and copyright owners to combat rampant infringement on platforms such as YouTube, and—perhaps not surprisingly—has been met with loud opposition by representatives of the online platforms.

This filtering mandate was attacked by the EFF as an unfair obligation to monitor content that would burden small service providers and somehow hinder innovation. But in supporting the OCSSPs’ attempts to sidestep any proactive identification of illegal material or responsibility for copyright infringement, the EFF once again promotes an internet devoid of accountability or respect for intellectual property.

Concerns that the updates would stifle innovation and be overly burdensome have already been addressed through the inclusion of carve-outs and exceptions for a number entities the EFF claims will be threatened by the filtering obligations, including cyberlockers and small and medium-sized enterprises (“SMEs”). Additionally, recent changes to the safe harbor language of Section 13 of the Directive—which are the result of pressure from organizations representing the interests of the OCSSPs—have left many wondering whether the proposal will impose any real obligations at all.

Addressing liability for platforms and service providers, the most recent draft of Article 13 provides that the safe harbors will apply when an OCSSP “demonstrates that is has made best efforts to prevent the availability of specific works or other subject matter by implementing effective and proportionate measures.” This language is significant because an earlier version of the draft used “proves” instead of “demonstrates,” and creator rights organizations are concerned that “demonstrating a best effort” is too low a hurdle for OCSSPs to overcome in order to enjoy safe harbor protections.

A letter released in April by Creative Works!, a coalition of European cultural and creative sectors, argues that the new Article 13 language “would further strengthen the role of some already powerful content sharing platforms” and “limit existing rights and create a special copyright liability privilege for these platforms.” Unfortunately, what began as an overdue effort to support the rights of creators is now in danger of being converted into yet another toothless provision that will allow those who facilitate infringement to skirt liability.

Data and Text Mining

The EFF and its European counterparts are also lobbying for sweeping expansions of text and data mining exceptions to copyright law. This is particularly remarkable considering the EFF has recently condemned the creation of databases built on information drawn from cameras that capture license plate numbers as an “Orwellian” invasion of privacy and rights. Apparently the massive collection of data, personal information, and creative content that would result from unfettered data and text mining is of less concern to the EFF if it occurs in cyberspace.

Describing it as necessary to support “coder’s rights, open access, and innovation,” these expansions would undoubtedly involve the copying of both information not subject to copyright and protected expressive content. Additionally, broad data mining provisions would allow for the circumvention of technological protection measures (“TPMs”) and digital right management (“DRM”) tools used by copyright owners to secure their works, and in turn open the door for massive amounts of copying under the guise of fair use-style exceptions.

While legitimate fair uses—such as news reporting, criticism, or commentary—should be safe from copyright infringement liability, it’s crucial to ensure that any updates to data and text mining laws don’t create an environment where creators and copyright owners are stripped of their rights and ability to control their works. The dictionary definition of the verb “mine” is “to extract something of value,” and it’s important to recognize that often what is extracted, reproduced, and redistributed under the pretext of data mining is valuable expressive content protected by copyright.

Notwithstanding the increased regulatory attention in the US and in Europe due to privacy concerns, OCSSPs continue to exercise substantial influence in the development of the Digital Single Market Directive on Copyright. Just as soon as proposals to secure the rights of copyright owners and creators are introduced, organizations such as the EFF use the same “breaking the internet” scare tactics to misguide the public and sway government officials.

If the EFF had its way, European copyright law would be “fixed” by implementing measures that increasingly dismiss the contributions of authors, innovators, and the industries that facilitate creation. It’s a bold position to take, and it’s one that ignores the global creative ecosystem that more informed organizations such as WIPO recognize and celebrate on World Intellectual Property Day (and every other day of the year). As updates to the European Copyright Directive develop in the coming months, lawmakers and the public would do well to disregard the fear-mongering rhetoric of the EFF and instead focus on supporting the creative works without which the internet might truly be threatened.


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