The EU Copyright Directive was voted through the Parliament because a handful of MEPs accidentally pushed the wrong button; this week, it passed through the Council — representing the national governments of the EU — and as it did, the German government admitted what opponents had said all along: even though the Directive doesn’t mention copyright filters for all human expression (photos, videos, text messages, code, Minecraft skins, etc etc), these filters are inevitable.
The Directive’s proponents had insisted all along that filters were not going to be required, and accused opponents like me of fearmongering. But it was clear from the outset that the goal of the Directive — that no user should be permitted to upload anything that infringes copyright, even momentarily — could only be accomplished with filters. After all, if I pass a law requiring you to produce a large, grey, four-legged African land mammal with two tusks and a trunk, you are going to go out and find an elephant — even if I say, “Please avoid making it an elephant if at all possible.”
And right on cue, as soon as the Directive was passed, European Commissioners who’d argued for the Directive and insisted that filters would not be required changed their tunes, saying that filters would be inevitable. The French government — who were so committed to the Directive that they dropped their opposition to a Russian gas pipeline to get it passed — also immediately announced that they would pass a law mandating filters.
Here’s where it gets weird and interesting: Back in 2016, Canada and the EU agreed to the Comprehensive Economic and Trade Agreement, a dirty-as-fuck gift to large corporations, incorporating an extensive and restrictive chapter on copyright and the internet as well as an Investor-State Dispute Settlement clause that gives corporations standing to sue governments to overturn laws that interfere with their profits.
Guess what? CETA bans EU and Canadian governments from making tech companies liable for their users’ copyright infringements, and from imposing any duty for online companies to spy on their users to prevent infringement (“each Party shall provide limitations or exceptions in its law regarding the liability of service providers, when acting as intermediaries, for infringements of copyright or related rights that take place on or through communication networks, in relation to the provision or use of their services…The eligibility for the limitations or exceptions referred to in this Article may not be conditioned on the service provider monitoring its service, or affirmatively seeking facts indicating infringing activity”).
So that’s…interesting. Once nations start passing laws that require filters, companies with Canadian subsidiaries — including all the Big Tech companies — can start suing in the EU (maybe? this isn’t my area of expertise). It certainly changes the game theory, which previously suggested that the worst of the 28 European laws implementing the Directive would be the one that everyone had to follow (since it would be very risky to have to guess whether your Italian customer was or wasn’t in France at the moment when you needed to decide whether to censor something to comply with French law, or not to, to comply with Italian law).
Moreover, there are a pair of Court of Justice of the European Union (CJEU) rulings that have thrown out laws that impose a “general monitoring” duty on tech companies, as conflicting with Article 15 of the E-Commerce Directive. Any law that mandates filters will certainly be challenged on these grounds as well.
I have been really gutted by the passage of the Directive, which is such an incoherent mess of pro-monopoly, pro-censorship, anti-speech, anti-human-rights, anti-artist garbage. It felt like we had been set back 20 years, and would be fighting for decades to undo the damage that MEPs wrought when they fatfingered the wrong fucking buttons on their voting machines. I’m aware that I’m desperate enough to clutch at straws, but both a CJEU challenge and a CETA ISDS challenge seem like the kind of thing that could nullify the worst parts of the Copyright Directive, sooner rather than later.
Could Article 13’s Upload Filters Be Thrown Out Because Of The EU-Canada Trade Deal CETA? [Glyn Moody/Techdirt]
Germany: Upload Filters Can Only Be Prevented “As Far As Possible” [Andy/Torrentfreak]