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New European Copyright Enforcement Plans Loom Large Even as Users Revolt Against Filter Proposal

EFF has joined over 80 groups in writing once again [PDF] to European politicians about disastrous new EU copyright proposals. Along with human and digital rights organizations, media freedom organizations, publishers, journalists, libraries, scientific and research institutions, educational institutions including universities, creator representatives, consumers, software developers, start-ups, technology businesses and Internet service providers, we wrote

to share our respectful but serious concerns that discussions in the Council and European Commission on the Copyright Directive are on the verge of causing irreparable damage to our fundamental rights and freedoms, our economy and competitiveness, our education and research, our innovation and competition, our creativity and our culture.

Since we last wrote about these copyright discussions, the LIBE (Civil Liberties) committee of the European Parliament, which was the last remaining committee to deliver its recommendations on the proposals to the lead JURI (Legal Affairs) committee, has taken its long-delayed vote on the draconian proposal to require Internet platforms to install copyright upload filters. Its ultimate recommendation was that the mandate be removed from Article 13 of the Digital Single Market Directive, in favor of softer obligations to take "appropriate and proportionate methods" to limit sharing of infringing content.

This reflects a growing consensus that there is no way to rely on automatic filtering to sift out copyright-infringing content from legitimate speech. For example, this month the Center for Democracy & Technology has published a paper titled Mixed Messages? The Limits of Automated Social Media Content Analysis which bolsters existing research about the difficulty of automated filtering and the inevitability that it will result in the censorship of some protected speech.

Yet still, this misguided approach enjoys strong support from copyright industry lobbyists. Switzerland has recently bent to this pressure, with a proposal to mandate automatic filtering to prevent infringing content from being re-uploaded. So the European Parliament's vote on Article 13 is important to put a nail in the coffin of this bad idea, before more countries consider adopting it into law.

Enhanced Enforcement Measures Now Also on the European Agenda

As if the Digital Single Market proposals weren't enough to keep track of, meanwhile at the European Commission efforts are also underway to ramp up existing copyright, trademark, and patent enforcement measures. Although no new legislation is on the table for now, the new measures announced this week include:

  • The release of a new non-legislative guidance document that "clarifies" how to apply the 2004 Directive on the enforcement of intellectual property rights (IPRED). The document encourages European countries to adopt lump sum damages for copyright infringement, it pushes an expansive definition of "commercial scale" infringement, and identifies cases in which it will supposedly be legitimate and proportionate for an injunction to be issued against an intermediary requiring it to block or filter infringing content. Interestingly, contrary to the Article 13 proposals, the guidance states that "intermediaries [may not be] made subject by means of such injunctions to obligations requiring them to install and operate excessively broad, unspecific and expensive filtering systems."
  • Publishing a new regular watch-list of markets that are reported to engage in, or facilitate, substantial IPR infringement, which will become Europe's equivalent to the much-criticized USTR Special 301 Report.
  • Updating a six year old Memorandum of Understanding on the Sale of Counterfeit Goods over the Internet [PDF], to which platforms including Amazon, eBay and Alibaba are parties, along with major brand owners and business associations. This Memorandum has many (although not all) of the hallmarks of Shadow Regulation. It's an agreement pushed upon industry by government, in place of regulation. It was not written in an inclusive and balanced fashion, since it includes no representatives from Internet users or consumer groups. However, somewhat unusually, it is at least relatively transparent, as not only is the text published, but the European Commission also conducts regular reviews of its operation, the latest of which has just been published [PDF].

Ten years ago, the overzealous drive by copyright maximalists was one of the factors that led to the failure of an attempted follow-up to IPRED, and to the commencement of negotiations for the Anti-Counterfeiting Trade Agreement (ACTA), which led thousands to demonstrate on the streets ahead of its ultimate and resounding defeat in the European Parliament. We would hope that those days are behind us, and that European politicians are now more cognizant of the need for copyright enforcement measures to be balanced and proportionate. We'll be keeping a close eye on Europe's unfolding enforcement agenda to ensure that that remains the case. 

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