On Thursday 23 November, Member States are set to discuss the latest Article 13 (a.k.a. the censorship filter) proposal of the Estonian Council Presidency. Estonia manages to reach new heights of horror with every new version. However, we have already spent a lot of time to analyse and write about the Estonians’ efforts to crush their reputation as a digital national by killing everything digital in the future. To summarise: it’s beyond bad!

So, now, it’s time for a more positive note on the copyright reform.

On Monday 20 November, the Civil Liberties, Justice and Home Affairs (LIBE) Committee was the last one in the row to vote on an Opinion, before matters get handled in the final Report by the lead Legal Affairs (JURI) Committee.

The LIBE Opinion (adopted with 36 for, 5 against, and 3 abstentions) sends a strong signal to the JURI Committee. It is the 2nd Committee to clearly set boundaries on how far copyright can impede on our fundamental rights, after the  Internal Market and Consumer Protection (IMCO) Committee already did so in its Opinion.

Rapporteur MEP Michał Boni (EPP, Poland) wisely decided to limit his draft Opinion to Article 13 and its accompanying Recitals (37 to 39), as he considered that the issues around this censorship filter touched upon the LIBE Committee’s core competences, namely safeguarding our fundamental rights.

This tension with fundamental rights was highlighted in the recent open letter from over 50 NGOs representing human rights and media freedom asking the EU legislators to delete Article 13 and the recommendation co-signed by over 50 respected academics, which points out that: “Article 13 (…) is disproportionate and irreconcilable with the fundamental rights guarantees in the Charter [of Fundamental Rights of the EU]” (p. 14) and “contains imbalanced, undefined legal concepts that make it incompatible with the existing acquis” (p. 23).

When tabling Amendments his colleague MEPs unfortunately did not limit themselves (or their creativity) in what to amend. So, ahead of the vote the Rapporteur called upon his colleague MEPs and the Shadow Rapporteurs to limit the LIBE Opinion’s vote to Amendments on Article 13 and its Recitals.

The Rapporteur for the lead JURI Committee, MEP Axel Voss (EPP, Germany), followed this call, and voluntarily withdrew his Amendments that could have dramatically worsen the press publishers’ right (Article 11). MEPs Eleftherios Synadinos (NI, Greece) and Cecilia Wikström (ALDE, Sweden) also withdrew a number of their amendments. However, other MEPs where less sympathetic to the Rapporteur’s call. As a result, detrimental amendments, such as those by ALDE MEPs Gérard Deprez (Belgium) and Jean-Marie Cavada (France) remained on the voting list but were luckily not adopted (we told you it was a day for common sense to prevail!).

LIBE Opinion: The Road to Common Sense on Article 13

Deleting Article 13 would have been the best option. However, the adopted compromise amendments further enshrine the original text proposed by MEP Boni and adopted in IMCO, which goes in the right direction: clearly trying to ensure that the provisions of Article 13 do not disrupt the existing legal framework and established case law of the Court of Justice of the European Union (CJEU), whilst taking a technologically neutral approach and making sure that users are not forgotten in this equation.

It is an important step forward that that the obligation to ‘prevent the availability’ of content has been removed, as this is the only solution to ensure that online platforms do not have to rely on content recognition technologies.

The Estonian Council Presidency’s latest proposal just tries to avoid as much as possible to talk about content recognition technologies: but not speaking about them does not make them magically disappear!

If an online platform has to ‘prevent’ certain content from being made available on a website, the only solution it has, is to rely on pre-upload filtering technology. The text, adopted both in the LIBE and IMCO Committees, allows online platforms to instead consider other alternative measures, such as improved notice-and-action procedures.

Nothing in Article 13 is about Fair Remuneration of Creators

Some stakeholders will try to accuse the LIBE Committee of not defending the interests of creators. However, nothing is further from the truth. 

The original Article 13 censorship filter not only impedes on our fundamental rights: there is also nothing in there that actually contributes to fair remuneration of creators. An open letter issued on 6 September by the ‘Fair Internet Coalition’, a group representing European performers, clearly states that “[Article 13] will mostly benefit the corporate ‘creative’ business who sign up performers and have the upper hand with respect to how they should be paid in return (…) Transparency measures may only be of use for a small minority of performers with enough leverage to negotiate ongoing payments. However, this is not the case for the overwhelming majority of performers who simply sign buy-out contracts”.

Creativity can’t be censored, warns the recently launched Create Refresh campaign. LIBE has exactly done what needed to be done to foster creativity, namely protecting creators’ basic right to create and to share these creations online. Actual creators, not those speaking on behalf of rightholders or collecting societies, are starting to speak-up against Article 13, as evidenced by the campaigns ‘Creators Network‘.

Beyond the Compromise Amendments: Protecting users

Next to the compromise amendments, two other amendments got adopted. MEP Daniel Dalton (ECR, UK) who is a supporter of the Save the Link campaign succeeded in getting an amendment adopted (AM134) that protects linking. His amendment clarifies that “hyperlinking to an already publicly available content does not constitute a communication to the public”.

MEP Cecilia Wikström got an amendment (AM64) adopted that tries to carefully balance the interest of both rightholders and users. On the one hand it stresses the need for online platforms that are notified or become aware of unauthorised content to “act expeditiously to remove the content in question or conclude a licensing agreement with the relevant rightholders on fair and reasonable terms“, whilst on the other hand being sensible to possible misuses or abuses of notifications, by reminding of the need for users to “have access to effective and expeditious redress and complaint mechanisms”.

The Devil is in the Details: Improvements can still be made

Although a good step forward, the LIBE Opinion is far from flawless. There is still an incoherence in the drafting of Article 13. The link between the content stored and the content to which access is provided by the platform is still missing. As we explained in our initial analysis of the draft Opinion, this could be easily remedied. Therefore, we hope that IMCO Committee Rapporteur MEP Catherine Stihler (UK, S&D) will step up to rectify this flaw, as she gets a seat at the negotiation table in the JURI Committee to defend IMCO’s Article 13 position (which is quite similar).

Another flaw of the adopted text is the fact that is calls for measures under Article 13 to respect the Charter of Fundamental Rights of the European Union. However, the Charter only imposes obligations on Member States, not on private entities such as online platforms. Therefore, as Caroline De Cock put it in her CopyBuzz analysis of the draft Opinion, the “‘respecting fundamental rights’ element could prove to be wishful thinking or a carrot with no stick”, as “these voluntary agreements fall in the private space”.

The Final Countdown: We’re heading for the JURI Committee

Now, the faith of the copyright reform in the European Parliament lies in the hands of the JURI Committee, as it is now up to the lead Rapporteur MEP Axel Voss, and his colleague shadow Rapporteurs to come to sensible compromises that will hopefully re-tip the balance of copyright in favour of both creators and users, instead of only benefiting rightholders.

The JURI Committee is currently scheduled to vote on 25 January 2018. However, it is unlikely that this date will be met, especially, seeing the daunting task the Rapporteur will have to reconcile very diverging views (at least, if he tries to do so). However, we hope that the sensible Article 13 proposals from both the LIBE and IMCO Committee will help steer that discussion in the right direction.

When it comes to the Council, we hope that Member States will finally find the guts to stand-up and call a halt to the Estonians steamrolling them into a corner and forcing them to decide between bad and worse legislation (whilst the French applaud).

Picture: MEP Michał Boni’s twitter acount

What others are saying

• CDT – Civil Liberties Parliamentary Committee Opposes Mandatory Censorship Filter
• Communia – European Parliament Civil Liberties committee is second EP committee to reject mandatory upload filters
• EDRi – The Civil Liberties Committee rejects #censorshipmachine
• IGEL – LIBE Committee remains silent on link tax
• MEP Julia Reda – Civil Liberties Committee joins the opposition against automated censorship machines
• OpenForum Europe – EU Copyright: New elements introduced in the Council’s compromise proposal hamper innovation and create legal uncertainty
• Openmedia – European Parliament’s civil liberties committee strikes blow to dangerous proposals for content censorship