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2018-07-04 06:16 - Opinions

EU & Internet : towards automated censorship?

This devblog is very recent, but given the news I can’t help but publishing my first opinion article. I will start by putting the topic into its context, which might be a bit long, so feel free to skip the first part if you just want to get a quick idea of what’s going on. Too long ; didn’t read.

The topic I’m going to talk about today is the Directive on Copyright in the Digital Single Market, which will be put to vote at the European Parliament on Thursday at noon (July 5th, 2018).

Contextualization

The necessity of a reform

The 2001 Copyright Directive, a first European attempt to harmonize its laws concerning copyright, and to apply in its Member States the treaties of the World Intellectual Property Organization, was criticized for being incomplete and unfairly in favor of authors at the expense of users. The directive is omitting some exceptions to copyright that are recognized de facto in some Member States, sometimes even de jure.

Implemented in 2005 in most Member States (despite a deadline set to 2002), it is the legislation currently in effect at the time of the writing of this article. In France, its implementation is the DADVSI (from French Loi sur le Droit d’Auteur et les Droits Voisins), which the Hadopi law better known from French people is based on. E.g the DADVSI specifies a fine up to 30000€ for somebody who uploads a software allowing to break DRM protections (which is sometimes necessary to read a book you have bought online on your e-book reader, by the way).

The incompleteness of this law and the obvious failure of the attempt to harmonize copyright laws in Europe led to bringing back that topic in discussions in the following years. When the toping came back in the planning of the Commission, it was already very controversial, as shown in this article in 2013. The topic was brought to a public consultation that same year: cf report. The consultation was criticized for being harder to fill than consultations on other topics which usually required a simple online quick form whereas this one required filling a document and attaching it to an email. Still it received more than 9500 answers.

The public consultation shows frequent problems in terms of user experience on the Internet related to copyright policies:

  • contents inaccessible in some countries
  • users being redirected to a localized version of an online store with sometimes even discrimination on prices
  • impossibility to read content protected by DRM in a different country from the one where it was bought, or a different platform from the one for which it was bought
  • lack of transparency about the mechanics of localization of websites (it’s automatic and you cannot easily change to see it as if you were in another European country)
  • difficulty for the user to negociate licenses internationally (e.g concerning free licenses granted for some software for education purposes)
  • it is hard for an artist to publish their content abroad because of the different regulations in the targeted countries
  • etc…

The Reda report

In november 2014, Julia Reda, Member of the European Parliament and the German Pirate Party, very involved in issues related to copyright in the digital world, was named rapporteur of a reform of the 2001 directive, in an initiative from the European Parliament. The report, which took her name, is full of realistic propositions that would benefit both the creators of content and the general public. Among the propositions:

  • right to quote and right of parody
  • a harmonization to the bottom of the duration before the work of a deceased author falls in public domain (based on study of the evolution of revenue generated by a work over time)
  • the clarification that digitalization of a work doesn’t give any copyright on it (btw, if you are ever tempted in buying on Amazon the electronic version of a book which is in public domain, search the Internet for a free version because it’s legal)
  • a harmonization of the exceptions to copyright, for example the use for documentary purposes
  • a harmonization of online and offline rights, such as educational use (currently a teacher can study a work with their students but not give them an electronic version)
  • the recognition of the liberty for an artist to release their work in public domain
  • the systematic release in public domain of works produced by employees of government institutions for their job
  • a consolidation of the position of authors in relation to intermediates and rights holders

The report received acclaim from experts and activits of digital rights, like the author-journalist-blogger Cory Doctorow, and strong criticism from the copyright management companies.

I’ve not had time to dive deep into the report, so I recommend reading a short explanation with examples, by the author of the report Julia Reda.

The report was handed in 2015 to the legal affairs committe, with amendment to restrict it, such as an amendment recommending to restrict freedom of panorama which received strong opposition from Reda and was voted down in the end.

Proposal by the European Commission

Being part of the program for Juncker’s application for presidency of the Commission, and being a key point of the role of Oettinger as commissioner for the digital economy and society, the reform was written in the planning of the Commission, which released on September 14th, 2016, the proposal which this article is about.

The issues of harmonization are indeed part of the proposal, but most aspects of Reda’s report are lost, and the current text of the proposal includes very controversial amendments, which we will be discussing in the second part of this article. The proposal met a strong opposition from Julia Reda herself. Note: the Parliament doesn’t have the power to initiate laws and reforms themseleves, this is why they had to urge the Commission to do it, and this is also why Reda cannot be the rapporteur of the proposal.

The proposal was approved by the COREPER (Committee of Permanent Representatives) on 25 May 2018, then proceeding to triolgue negotiations between the Council of the European Union, the European Commission, and the European Parliament. The proposal was validated by the Committee on Legal Affairs almost unchanged on June 20th, 2018. Politics are unnecessarily complicated, aren’t they?

European Union and the GAFA

Ok, there would definitely be a lot to say on that topic, but I’ll try to restrict myself to the very basics, but still that’s an important topic to understand what’s happening.

GAFA(M), what’s that?

The acronym GAFA appeared in France in communities of activists of free software and digital rights, like La Quadrature du Net or Framablog, referring to the American giants Google, Apple, Facebook and Amazon. Sometimes Microsoft is added in the acronym GAFAM. The acronym is now internationally used, along with Big Four with has less connotations.

The link between these giants is that they are all huge corporations with a monopoly on a digital service used by a wide user base, giving them a lot of power and a considerable societal influence. The most used service is Facebook with its 2 billion users (that’s more than any country in the world).

The relationship between EU and these corporations is difficult, because of the intention of the EU to protect the European citizens against aggressive commercial practices of these corporations which don’t mind selling their personal data, using targeted advertisement based on a user’s activity, etc.

Fair competition laws

Some remarkables cases:

  • Microsoft Corp v Commission: Microsoft was fined 2.2 billion euros for abusing its leading position, which was estimated non conform to the competition laws
  • AMD v Intel: Intel was fined 1.45 billion dollars by the EU for abuse against its competitor AMD
  • Amazon practices in terms of prices, taxes and tax evasion have been pointed out, and under the pressure of the Commission, Amazon, which European headquarters are in Luxembourg, began declaring taxes in the destination country for orders in a few countries including France

Privacy, data processing

EU has been in a trial of strength with the corporations, mainly Google and Facebook, about the use of personal data of their users. This resulted in the General Data Protection Regulation (GDPR), voted in European Parliament on 14 April 2016 and in application after 25 May 2018, which consolidates the rights of European citizens concerning storage and processing of their personal data.
I’ll not dive into the details here because it’s been the topic of much talk recently, but the Wikipedia page whose link I just gave contains relevant information and links to understand it.

GDPR illustrates the Brussels effect, name given to the global impact of European regulations because of a race to the top observed for legislation (it is less costly to adapt to the stricter rules everywhere than maintain local exceptions). For example Microsoft changed their confidentiality agreements globally to adapt to the restrictions of GDPR.

If, in the context of GDPR, the Brussels effect is beneficial, that would however be the contrary in the case that we will discuss in the second part of this article.

Criticism of the directive

On overview of reactions

An open letter was co-signed by multiple parents of the Internet and specialist of digital rights, such as:

Among the active opponents to the proposal:

  • the non-profit foundation Mozilla which develops the free and open source browser Firefox
  • the non-profit foundation Wikimedia which hosts the projects of the family of Wikipedia

Multiple groups of scientists, experts, cultural institutions, Internet service providers, lawyers, etc, participated in the movement with thousands of articles, some of them can be found on the Wikipedia page.

In French journals we can find multiple articles, including a quite good article from Libération on June 20th.

The reform met more opponents in the north. During the vote on May 20th, the 5 French votes went in favor of the reform, whereas all Finnish, Swedish and Irish votes opposed it.

Article 13 or the censorship machine

The main reason of the controversy lies in article 13. If you want to have a fresh reading before I start talking about it, go take a look, I’ll wait for you.

Before discussing article 13, let’s sum up the current state of the application of copyright laws: the user is responsible for the content they upload, and the platforms have the legal obligation to remove protected content if they’re asked to by the author or right holders. It is not a perfect system (there are cases of censorship being applied though a fair use of the content is made, for example with the right to quote), but it is a good common ground.

But in the new proposal, article 13 makes the platforms actively responsive for the content that is uploaded by their users, thus they may need the appropriate technological means to fulfill this obligation, i.e use filters to validate user-uploaded content.

Here are some issues it creates:

  • For users, it means that automatic filters will be applied everytime they post content on their favorite social network, be it an image or video or text or music. Facebook would have not only the right, but obligation ro run checks on your holiday video on the beach to make sure it doesn’t contain the summer hit. That’s a threat not only for your privacy but also your freedom of expression
  • For creators of contents analyzing or explaining works, much of their content would be blocked despite the fair use
  • it involves a cost for platforms that allow content sharing, as they have to implement or buy these filter. It makes it more difficult for newcomers to set foot in that business
  • a side-effect could be a discrimination of the European market for some plaftforms, which would then directly affect EU citizens

Article 11 or link tax

Article 11 specifies that law should give a special status to news articles publishers to obtain royalties for the use of their publications. This targets search engine and aggregators, which are displaying part of the info like title, description and cover picture, and can indeed earn money on related user activity.

But put a tax on this is a very bad idea. Because the presence of an article on search engines and aggregators is 100% beneficial to these websites who receive a big part of their activity from search engine.

By the way, implementations of this kind of laws have always failed, as show the analyses about the implementation in Germany and Spain, which proved that these websites highly benefit exposure on social networks. In Spain, the law was followed by Google News retiring from Spain, and number of visites on many press websites decreasing.

For clear explanations from Julia Reda who is much more competent than me about these issues, see What’s at stake in the July 5 #SaveYourInternet vote: The text, explained.

What to do ?

In the short run

Some methods have been set, though the 5th is coming very soon, which doesn’t let you that much time to act. This involves contacting the members of the Parliament to tell them about your concerns.

You can take a look on:

In the long term

What is happening now is only a symptom of the misunderstanding by our politicians of a digital world that challenges the old conceptions of sharing and property.

But the world of tomorrow will not be built by the politicians from yesterday but by us. So the most important is that our generation rethinks culture and sharing and finds suitable models for a digital world. This implies learning more, reading about that topic.

If some of you have good ideas of articles or books to read, or videos, or whatever, please share it as a comment so that it profits everybody.

Sources

The proposal this article is about : Proposal for a directive on copyright in the digital single market

A non-exhaustive list of articles and documents that I used for my reasearch:

The cover picture of this article is licensed CC0, which means its author (Tumisu on Pixabay) put it in the domain public and it can be used without any restriction.

Long story short

  • EU tries to protect the creators of contents but they’re taking the wrong measures
  • the article 13 is a threat to privacy, freedom of expression, and fair exceptions to copyright
  • the article 11 may affect the press and our access to the news
Askrenteam (2018-07-04 09:41)

Très bon article ! Pour voir plus en détail ce que dit le texte de la proposition, l’EDRi (European Digital Rights) en a publié une analyse assez intéressante.

nyri0 (2018-07-05 11:44)

Un article assez intéressant qui souligne entre autres les incohérences dans le discours des MEP : https://nextinpact.com/news/106816-la-directive-droit-dauteur-filtrage-presque-generalise.htm

nyri0 (2018-07-05 14:30)

The proposal was voted down today in Parliament, and will be re-written for a new vote in September :)

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