Anti-Piracy: Can It Exist Without Censorship?

Public Domain Group to EU: Remove Internet Filtering Clause ASAP
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Public Domain Group to EU: Remove Internet Filtering Clause ASAP
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Image by g4ll4lls (CC by 2.0)

Will the EU violate users’ fundamental rights? Communia, an public domain believes so.

Back in September 2016, EU Commission President Jean-Claude Juncker announced his plans to modernize existing copyright laws in Europe. They form part of the Digital Single Market reforms. However, Communia, founded by groups including Creative Commons and Wikimedia, believes Juncker’s reforms will actually violate users’ fundamental rights.

Specifically, Communia has issues with the controversial Article 13 of the Digital Single Market reforms. The article would require online providers to implement, and thus, consistently use “[appropriate and proportionate] content recognition technologies.” TorrentFreak gives one example:

“User-generated content sites, for example, would be required to install fingerprinting and filtering systems to block copyright-infringing files.”

Digital rights groups ERDi and Pirate Party member Julia Reda quickly criticized the proposal. Communia published a fifth paper on the EU Commission’s proposals. Instead of protecting copyrights, Article 13 may actually serve as a “censorship machine”, thus violating users’ fundamental rights.

“The proposal is constructed as if the only way to prevent copyright infringement is to filter user­-uploaded content. All content would be subject to the filtering. This would mean that a censorship machine is implemented just in case there is an infringement of copyright.”

Article 13 may also distort current legal framework, thus creating legal uncertainty.

The measures proposed in the Commission’s proposal stem from an unbalanced vision of copyright as an issue between rightsholders and ‘infringers.’ The proposal chooses to ignore limitations and exceptions to copyright, fundamental freedoms, and existing users’ practices.

In addition, the proposal fails to establish clear rules with regard to how citizens can use protected works in transformative ways — such as remixes and other forms of so-called ‘user-generated content’ (UGC). As a result, a system of this kind would greatly restrict the way Europeans create, share, and communicate online.”

All user-generated content would have to pass through a filtering system for approval.

“As a result, users’ activity will be constrained before any infringement happens. This approach goes against both fundamental rights and the European law.”

Due to the nature of parody sites and fake news websites, the filtering system may not function correctly.

This type of a system, combined with an ineffective redress mechanism, will create a chilling effect that will thwart users’ rights online.”

In order to protect users’ rights while surfing online, Communia recommends abolishing Article 13.

“The Commission’s proposal to introduce a filtering requirement for ISSPs that can potentially serve as a censorship machine will violate users’ fundamental rights and distort the existing legal framework.

“Article 13 (“Use of protected content by information society service providers storing and giving access to large amounts of works and other subject-matter uploaded by their users”) should be removed from the proposal.”

If the EU Commission ultimately approves Article 13, Communia has a simple request: grant users access to transparent information regarding the filtering functionality. If the filter blocks content, users should contest any removal actions.

2 Responses

  1. Faza (TCM)

    Sure there are alternatives to pre-emptive filtering.

    Possibly the easiest to do is to repeal most safe-harbour provisions for online service providers and to make it legally unambiguous that they bear full liability for everything that is published via publicly accessible services under their control, regardless of source (meaning that if you host user-generated content, you are responsible for vetting that it contains nothing that’ll get you in legal hot water). Essentially, this means that any online publisher would be operating under the same principles that govern offline publishing (this goes beyond copyright, into areas such as libel, hate-speech and others).

    Given that the internet is global and the matter of liability (if any) is governed by local laws, member states should also have the option of selectively cutting off access to service providers based outside their jurisdiction who are found to be operating in a manner incompatible with local laws (that is: institute blocking measures for selected bad actors). Attempts by local users to circumvent such blocks could be handled in a way similar to smuggling (that is: circumvention would be subject to criminal penalties for the circumventing user – I am intentionally leaving aside how detection of such activity might be handled).

    Of course, I am 100% certain that if such a proposition were made to Communia, they would raise an even bigger noise. These folks have problems with the very idea of enforcing copyright – by whatever means. The very idea that online service providers might be subject to liability for what they do is odious.

  2. FarePlay

    Any law can be misused either intentionally or with malice. We’ve seen this for nearly two decades as creators and artists have stood powerlessly and seen their work and careers pre-emted by criminals and corporations, who have had no protection.

    Perhaps more than any others a dominant majority of those who create for living have spoken truth to power and would be the first to fight any hint of censorship in the laws that were intended to protect their work.

    These are often the kind of self-serving opinions that are used to stifle legislation that protect individuals from this with a vested interest to maintain the status quo.

    Why some in this country choose to marginalized and hijack free human expression are the one’s who restrict our freedom.