German Data Privacy Commissioner Ulrich Kelber is also a computer scientist, which makes him uniquely qualified to comment on the potential consequences of the proposed new EU Copyright Directive. The Directive will be voted on at the end of this month, and its Article 13 requires that online communities, platforms, and services prevent their users from committing copyright infringement, rather than ensuring that infringing materials are speedily removed.
In a new official statement on the Directive (English translation), Kelber warns that Article 13 will inevitably lead to the use of automated filters, because there is no imaginable way for the organisations that run online services to examine everything their users post and determine whether each message, photo, video, or audio clip is a copyright violation.
Kelber goes on to warn that this will exacerbate the already dire problem of market concentration in the tech sector, and expose Europeans to particular risk of online surveillance and manipulation.
That's because under Article 13, Europe's online companies will be required to block all infringement, even if they are very small and specialised (the Directive gives an online community three years' grace period before it acquires this obligation, less time if the service grosses over €5m/year). These small- and medium-sized European services (SMEs) will not be able to afford to license the catalogues of the big movie, music, and book publishers, so they'll have to rely on filters to block the unlicensed material.
But if a company is too small to afford licenses, it's also too small to build filters. Google's Content ID for YouTube cost a reported €100 million to build and run, and it only does a fraction of the blocking required under Article 13. That means that they'll have to buy filter services from someone else. The most likely filter vendors are the US Big Tech companies like Google and Facebook, who will have to build and run filters anyway, and could recoup their costs by renting access to these filters to smaller competitors.
Another possible source of filtering services is companies that sell copyright enforcement tools like Audible Magic (supplier to Big Tech giants like Facebook), who have spent lavishly to lobby in favour of filters (along with their competitors).
As Kelber explains, this means that Europeans who use European services in the EU will nevertheless likely have every public communication they make channeled into offshore tech companies' servers for analysis. These European services will then have to channel much of their revenues to the big US tech companies or specialist filter vendors.
So Article 13 guarantees America's giant companies a permanent share of all small EU companies' revenues and access to an incredibly valuable data-stream generated by all European discourse, conversation, and expression. These companies have a long track record of capitalising on users’ personal data to their advantage, and between that advantage and the revenues they siphon off of their small European competitors, they are likely to gain permanent dominance over Europe's Internet.
Kelber says that this is the inevitable consequence of filters, and has challenged the EU to explain how Article 13's requirements could be satisfied without filters. He's called for "a thoughtful overhaul" of the bill based on "data privacy considerations," describing the market concentration as a "clear and present danger."
We agree, and so do millions of Europeans. In fact, the petition against Article 13 has attracted more signatures than any other petition in European history and is on track to be the most popular petition in the history of the human race within a matter of days.
With less than a month to go before the final vote in the European Parliament on the new Copyright Directive, Kelber's remarks couldn't be more urgent. Subjecting Europeans' communications to mass commercial surveillance and arbitrary censorship is bad for human rights and free expression, but as Kelber so ably argues, it's also a disaster for competition.