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#CopyrightWeek – Copyright and Free Speech: the rise of shadow regulation or how to let private companies decide what goes and stays on the Internet

#CopyrightWeek – Copyright and Free Speech: the rise of shadow regulation or how to let private companies decide what goes and stays on the Internet

The theme of today’s #Copyrightweek is ‘Copyright and Free Speech’. The idea is to tell policy makers that freedom of speech is fundamental to democratic systems and that copyright should promote, not restrict or suppress, free speech.

Obvious, no?

Well, actually, not obvious at all, if you look at the copyright creep that has occurred through legislation and ‘moral pressure’ applying all over the Internet. The phenomenon has been identified by the Electronic Frontier Foundation (EFF) as ‘Shadow Regulation‘ and extends beyond the realm of copyright.

Iit basically pertains to the policing of the Internet by private companies, either:

  • at their own initiative;
  • under friendly ‘duress’ of others; or,
  • as a result of legislation that make companies run the risk of being liable ‘if they do not intervene’.

These types of more or less coerced interventions can be found in multiple areas these days (hate speech, terrorist content, rogue pharmacies and the recently popular ‘fake news’ tag), but certainly have been a constant feature in copyright discussions, both in the EU and in other geographies (remember SOPA/PIPA?).

This tendency to push the handling of complex issues on the back of private companies (and thus outside the realm of the law) has recently emerged with a vengeance in the European Commission’s (EC) proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market (DSM) [2016/0280(COD) – COM(2016)593/F1] currently under discussion in the European Parliament and in the Council of the EU.

In this text, Article 13 stands out as a bit of an oddity, as it actually deals with matters that most digital rights lawyers would expect to see included in other legal instruments, such as the IPR Enforcement Directive or the Ecommerce Directive. The issue at stake is indeed that of the liability of information society service providers (such as online platforms) for content uploaded by their users and that could infringe copyright, packaged under the label ‘sharing of value’.

1. Article 13 as privatised censorship of all content by an undefined number of online companies following an undefined procedure

There are so many loose and dangerous ends in the proposed Article 13, that we have tried to summarize them in the table below:

The text proposed by the European Commission

What does this mean in practice?

Information society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users shall,

Who?

Online players that store large amounts of user uploaded content can cover a lot of very different type of players, ranging from commercial platforms to non-profits and can cover all types of hosted content ranging from:

·         videos (YouTube, Vimeo, Daily Motion),

·         blogs (Tumblr, WordPress),

·         crowdsourced information (Wikipedia),

·         social media (Facebook, Twitter),

·         documents (DropBox, Google Drive),

·         pictures (Flickr), etc. 

What?

This covers all sorts of creations, ranging from literary works, music, choreographies, pantomimes, pictures, graphics, sculptures, sound recordings, architectural works, etc..

→ So this is not confined to Content ID type softwares used on YouTube, which only scan music and video uploads to identify copyright infringements.

It covers also content uploaded by a user who is the rightholder of that content or who has the right to do so under an exception or limitation under EU law, as there is no mention of the fact the content has been uploaded there rightfully or not.

in cooperation with rightholders,

Who?

Rightholders covers a vast reality ranging from big labels or the Hollywood studios to every individual creator if he has not signed away his rights. This is a lot of people to sit around a table and ‘cooperate’ with, especially if you are a smaller company that would prefer to hire engineers than lawyers. Online companies could have to deal with thousands of claimants all wanting a share of their revenues, or simply face the prospect of such interactions and hence have a less attractive business case to defend before investors.

Collecting societies could maybe be used to decrease the number of stakeholders involved, but they are not always known as smooth negotiators and do not necessarily represent the interests of all rightholders.

Cooperation?

What does that even mean when your interests are not necessarily aligned? And where are the users in this relationship?

take measures

 

to ensure the functioning of agreements concluded with rightholders for the use of their works or other subject-matter

To do what?

The obligation here is to comply with an agreement of the rightholder, regardless if that agreement relates to actual copyright infringements or not. It also implies that online platforms ‘use’ the works that are uploaded by their Internet users, a qualification which is not that clear-cut from a legal point of view and is aimed at pretending they are not just ‘hosting’ the material.

or

 

to prevent the availability on their services of works or other subject-matter identified by rightholders through the cooperation with the service providers.

The works and other subject matters to be ‘filtered’ are those identified by rightholders. How that identification occurs is not stated, nor how claims of rights are checked (it is not unusual for several people to claim they have the rights over the same work, and in some cases, all of their claims are true).

Those measures,

 

such as the use of effective content recognition technologies,

This language seems to point directly towards the type of ContentID software used by YouTube, even though the scope of what needs to be recognized goes dramatically beyond what ContentID is capable of handling.

Moreover, such automated tools can only match a file to another, and do not have the capability to recognize more complex issues, such as the fact that whilst a copyright protected file might have been used by a user, it does not infringe the rightholder’s copyright as it falls under an exception recognised by law (for example, parody).

shall be appropriate and proportionate.

 

Safeguards?

Not really. Seeing all of these measures will be (1) decided by private companies and (2) fall under the terms and conditions of the websites, the ‘appropriate and proportionate’ nature of the implemented measures is left to the appreciation of those private companies, with no control by judicial or administrative instances, nor by consumer representatives. This interpretation seems confirmed by Recital 39 of the proposed Directive.

The service providers shall provide rightholders with adequate information on the functioning and the deployment of the measures, as well as,

 

when relevant,

Who will judge relevance? The rightholders is our best guess.

adequate reporting on the recognition and use of the works and other subject-matter.

So aside from investing money into censorship tools, online companies must also make sure they come up with reports to please the rightholders.

2. How Article 13 is in direct contradiction with Freedom of speech principles and other rules enshrined in EU law

So why did the European Commission decide to take this approach of ‘forced voluntary agreements’ between online platforms and rightholders? Because if they proposed an actual legal provision that mandates these same online platforms to scan content uploaded by users, they would be infringing existing European rules ( notably Articles 14 and 15 of the Directive 2000/31 on electronic commerce, also referred to as the E-commerce Directive, which prohibit general monitoring obligations to be imposed on hosting providers), the EU Charter of Fundamental Rights (notably Articles 8 and 11 which relate to freedom of expression and access to information as well as privacy) and established case law by the Court of Justice of the European Union (CJEU), as set out by EDRi.

But you don’t have to trust us on this: this is the view of many academics working on copyright legal issues, as demonstrated by:

  • a paper co-authored by several of them and titled ‘A brief exegesis of the proposed Copyright Directive’, which politely concludes that ‘A comprehensive re-assessment of Article 13 and Recital 39 in the light of the Charter of Fundamental Rights of the European Union and the E-commerce Directive (in particular Article 15) including Court of Justice of the European Union case law is needed, as the proposed Copyright Directive does not expressly address the issue of its compatibility with both of these texts’.
  • the blog post and presentation given on 11 January 2017 by Dr Christina Angelopoulos at the EPP Hearing on Copyright at the European Parliament, as neatly summarized below by the slide she projected at the venue.

Surely, that is a clear message?

Conclusion: ‘Free speech: only as strong as the weakest link’ (EFF)

Source: EFF – Free speech only as strong as the weakest link – https://www.eff.org/free-speech-weak-link

The expression ‘Free speech is only as strong as the weakest link’ was used by the Electronic Frontier Foundation in a 2011 blog post accompanying a dynamic interface that maps out the relationships between users, intermediary services and other users on the Internet.

The reason for which they did this has never been more actual than today:

One of the key pressures on free speech weak links comes from back-room agreements with the companies that operate at each level—which we call Shadow Regulation.

‘(…) The Internet has delivered on its promise of low-cost, distributed, and potentially anonymous speech. Reporters file reports instantly, citizens tweet their insights from the ground, bloggers publish to millions for free, and revolutions are organized on social networks. But the same systems that make all of this possible are dangerously vulnerable to chokeholds that are just as cheap, efficient, and effective, and that are growing in popularity. Understanding these weak links is the first step toward making them stronger.

As the European Commission proposal tries to poke holes into the the free speech chain, we encourage the Members of the European Parliament and the representatives of the governments of the Member States to make each of the links stronger, and to reject the institutionalized backroom deals Article 13 is trying to push down the throat of the Internet and its users.

 


We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation.

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#CopyrightWeek – Transparency and Representation: the EU copyright consultation process as an illustration on how not to do things

#CopyrightWeek – Transparency and Representation: the EU copyright consultation process as an illustration on how not to do things

The theme of today’s #Copyrightweek is ‘Transparency and Representation’. The idea is to tell policy makers that copyright policy must be set through a participatory, democratic, and transparent process. It should not be decided through back room deals, secret international agreements, or unilateral attempts to apply national laws extraterritorially.

Whilst this message tends to make most people think of trade agreements and the negotiations that lead to them (you know, all the funky stuff with acronyms that usually include a T? TTIP, CETA, ACTA, etcetera), one does not have to go down the international route to find symptoms of the malaise that surrounds debates about copyright. Not a case of the ‘boys club’ but rather one of ‘the rightholders club’.

Just staying nicely in Brussels is sufficient to get an idea on how copyright debates (dys)function. For illustrative purpose, we have decided to look more specifically at the ‘consultative’ and legislative process that took place in the run-up to the publication of the European Commission’s (EC) proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market (DSM) [2016/0280(COD) – COM(2016)593/F1].

More specifically, we focus on two aspects:

  • the consultation process; and,
  • the blatant disregard of findings from studies the EC itself commissioned.

A. The consultation process

The EC held a public consultation on the role of publishers in the copyright value chain and on the ‘panorama exception’ (March-June, 2016). In this context, C4C set-up an answering tool and guide, which offered citizens and other stakeholders an easy explanation of the EC’s complex and jargon based questions, in order to help them understand the issues at hand. This answering tool and guide was available in the 3 official consultation languages (English, French and German), but was also offered in 3 additional languages (Italian, Spanish and Polish) to encourage a broader group of people to engage in the consultation process. This effort is referred to by the EC, as “the third party campaign ‘fixcopyright’”. Based on this experience, we believe that the consultation process is flawed at 3 levels, namely:

  • the languages wherein the consultation was made available;
  • the summary of the consultation results; and,
  • the flagrant hampering of citizen participation.

1. The languages wherein the consultation was made available

The EC specifically asked respondents to the public consultation to provide input on the impacts of the Spanish copyright law on different stakeholders, as Spain has already introduced neighbouring rights for press publishers in their national legislation. Therefore, it is problematic, to say the least, that the EC never published the consultation questions in Spanish. This approach is rather dubious: whilst Spanish stakeholders, citizens, news publishers and content aggregators, are directly concerned, the EC does not offer them the opportunity to access the consultation in their native language. So, how are they expected to share their experiences around the impact of their national ancillary copyright legislation (knowing this set of rules has only been adopted in two EU countries, namely Germany and Spain?

This approach from the EC has been the subject of a Parliamentary Question by MEP Daniel Dalton (ECR, UK), to which the EC has replied that “individual replies to this consultation could be provided in any of the EU official languages”. This response show a disconnect between the policy field and stakeholders, because for one to respond in his native language, this presumes that one can understand and interpret the questions being put forward in English. This can prove to be quite challenging for a non-native English speakers, especially if the questions asked are already hard to grasp for a native English speaker due to the use of jargon. Therefore, one could wonder if the EC was truly seeking input from Spanish stakeholders, one of the sets of citizens directly affected by the new rights the EC ended up proposing.

2. The ‘summary’ of the consultation results

The EC waited until the publication of the draft proposal, on 14 September 2016, to publish the synopsis report of the abovementioned public consultation. However, it seems common practice from the EC that a summary report of the consultation results is made in the run-up to the publication of the draft proposal, but this was not the case for this consultation.

The first thing we notice, is that the EC decided to split the synopsis report in two separate ones, namely one dedicated to the analysis of the replies to the ‘publishers’ section and one dedicated to the analysis of the replies to the ‘panorama exception’ section. This implies that the general overview of the contributions to the consultation is rather scarce.

This is reflected in the EC’s reporting on the number of consultation replies received. The EC implies that 6.203 replies were received, but also states that the section on the ‘panorama exception’ received 4.876 replies and that the section on publishers received 3.957 replies. The separate number of replies adds-up to a total of 8.833 replies. The discrepancy with the EC’s reported total of replies could indicate that a large number of respondents opted to reply to both sections. The synopsis reports neglects to mentions this, nor does it provide any further details on it.

Next to this, there is also a mismatch between the number of contributions to the consultation that were published online, namely 5.721 replies (see table below), and the total of 6.203 replies. This implies that 482 responses remain unpublished. We would assume that this is due to the fact that these have been marked as confidential by the respondents. However, again, the synopsis reports neglects to mention this.

Consultation responses received

‘Fixcopyright’ campaign

2.791

Anonymised

1.361

Individuals

1.176

Organisations registered in the EC-EP joint transparency register

216

Organisations not-registered in the EC-EP joint transparency register

177

Total respondents

5.721

A second observation from our side, is the fact that while the EC claims that these reports are a ‘comprehensive assessment’ of the consultation results, nothing less is true. This is illustrated by the fact that the EC limited itself to the use of terms as ‘some’, ‘few’, ‘majority’, ‘vast majority’, ‘generally’, ‘clearly supportive’, etc., without actually pinning down the number of respondents supporting the claims that are being presented in the report. As a result, this total lack of concrete numbers renders the synopsis reports to mere appreciations and perceptions of their authors. We were certainly able to do the math for the responses we collected, and the results were pretty straightforward, as illustrated below.

A third point that we would like to draw attention to, is the EC’s treatment of the responses collected through our answering tool and guide. The explicit references to “the third party campaign ‘FixCopyright’” are questionable, as our efforts merely replicated the EC’s public consultation. Therefore, we wonder why it deserves a separate treatment. More specifically, in our view this raises questions about the EC’s motives to treat our responses differently, instead of merging all responses to facilitate its own analysis. This can be correlated to a ‘philisophical’ stance take by the EC, whereby it considers that if it receives multiple answers to a consultation with the same responses or very similar responses, all such similar answers will considered by the EC as constituting one single answer (so, in other words, 2000 answers suddenly only weigh in as 1, as you need to show evidence of originality to please the powers that be).

Finally, we believe the EC could do more to allow public scrutiny of the consultation responses received, and this by publishing them in a machine-readable format. In this case, the EC seems to deliberately provide the data in the most complex format possible, as such throwing up barriers to anyone wanting to conduct a meaningful analysis of the responses. Luckily, the challenge to make this data more usable has been taken-up by MEP Julia Reda.

3. The flagrant hampering of citizen participation

C4C, and stakeholders supporting its efforts, developed the ‘FixCopyright’ answering tool and guide in such a way that the collected responses could be transferred to the EC’s official consultation tool ‘EUSurvey’. This approach worked well for previous consultations, such as the one on online platforms and IPR enforcement. Until we were confronted with a technical barrier for this specific consultation, as the EC decided to impose a CAPTCHA in order to submit ones consultation response. This proved to be a technical impediment which stopped us from transferring the collected responses.

A similar measure was initially put-in place for the online platforms consultation, but in that case the responsible Unit from DG CNECT removed the CAPTCHA following a friendly request from a C4C signatory.

In this case, it took a tremendous amount of effort, including discussions with the DG CNECT services and various Cabinets, before the EC agreed to accept the responses collected.

If the EC, in the in the spirit of Better Regulation, truly wants to engage citizens and other stakeholders to contribute to its public consultations, then it should open them up in all possible ways and facilitate all efforts that are trying to engage stakeholders beyond the so-called ‘Brussels bubble’.

B. The blatant disregard of findings from EC commissioned studies

From C4C’s point-of-view, the EC’s draft proposal shows a blatant disregard of the findings from studies commissioned by the EC (on top of not taking into account the opinons voiced during the consultation process), studies which are by the way funded with public money.

A concrete example are the EC’s proposed measures to ensure fair remuneration in contracts of authors and performers (see Title IV – Chapter 3, Articles 14-16). In this area, the EC commissioned two studies, namely:

  • A study on the remuneration of authors in the music and audio-visual sector, which dates from July 2015; and,
  • A study on remuneration of authors of books and scientific journals, translators, journalists and visual artists for the use of their works, which was only made publicly available on 30 September 2016, so after the publication of the draft proposal.

In both studies, the authors clearly point out that measures, such as the ‘best-seller clause’ that is proposed by the EC and already implemented in various forms by several Member States, do not carry a lot of clout in practice.

“Authors and performers certainly have other protective measures at their disposal which they can incorporate into contracts, such as a termination right or a best-seller clause. However, in our opinion, these clauses lack the kind of direct, up-front impact on remuneration that can be observed in a restriction of the scope of transfer. These clauses work rather as ‘ex-post’ remedies and, additionally, require enforcement by the author or performer. Having authors and performers challenge the contract can prove complex, expensive and time-consuming and thus impair the original purpose of the clause.” (Study 1 – pp. 59-60 – emphasis added)

“These clauses work rather as ‘ex-post’ remedies and, additionally, require enforcement by the author. Having authors challenge the contract can prove complex, expensive and time-consuming and thus impair the original purpose of the clause. Moreover, authors are often hesitant to challenge their contract in fear of endangering an on-going relationship with their publisher or being blacklisted by other publishers.” (Study 2 – p. 122 – emphasis added)

These studies have provided clear indications to the EC that measures, such as ‘best-seller clauses’, do not prove to be adequate means to support creators in obtaining fair remuneration. Practically, that type of provisions where a creator can go and bang on a table and ask for more money, only works if the creator is J.K. Rowling or equivalent, or if it’s someone on the verge of retiring and who hence does not care for his/her future career perspectives. Nevertheless, the EC blatantly neglected these findings, and presented an ineffective and suboptimal solution as preferred option (embodied in articles 14 and 15 of the EC’s Copyright in the DSM proposal), leaving creators defenceless, whilst giving the impression to step-in to support their cause. 

More recently, the European Parliamentary Research Service (EPRS) published a briefing providing its initial appraisal of the European Commission’s Impact Assessment (IA). Herein the EPRS remarks that “the IA, which is very dense, is based on limited quantitative data”, and points out that the European Commission openly acknowledges this fact. It also considers that the IA “would also perhaps have benefited from a more detailed assessment of social impacts and impacts on fundamental rights”, and concludes that “concerning rights in (press) publications, it would have been useful if the IA had provided more thorough reasoning regarding the new ancillary right”. This shows that we are not the only ones who think that the EC took the easy road when assessing what to do to modernise copyright, rather than conducting a thorough assessment of what needs be done to bring copyright in sync with the 21st century.

Conclusion

To quote the recently passed away George Michael in his Wham days, ‘If you’re gonna do it, do it right, right? Do it with me’. Or less cryptically, policy makers considering the thorny issue of copyright should follow at the very least the following steps as crucial to any policy making process:

  1. Do not limit discussions to the usual suspects in terms of stakeholders, especially when the issues at stake affect the daily life of every citizen.
  2. Citizens are not goofballs or little children that should be held away from the ‘grown up’ discussions. They are in many instances the people that are most directly targeted or the ones that most strongly feel the collateral damage stemming from legislative proposals. Hindering their participation or negating their voice is not due process.
  3. If you are going to ask the opinion of experts, be prepared to accept they might disagree with what you wanted to hear. If you’re not, just save taxpayers’ money and don’t pretend you care about evidence-based policy making.

We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation.