Art. 13(1) of the © in DSM Directive: a comparative perspective
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This document analyzes Article 13(1) of the EU Copyright Directive, which requires online platforms to implement content recognition technologies to detect copyrighted content. The article argues that content recognition technologies are technically flawed, impose high costs, and do not properly balance copyrights with other rights like privacy and freedom of expression. Additionally, the article notes that the EU Court of Justice has previously found member states must balance copyright with other fundamental rights when implementing EU directives. The article concludes that Article 13(1) risks upsetting this balance and treating online platforms as private copyright enforcers.
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Art. 13(1) of the © in DSM Directive: a comparative perspective
- 1. Art. 13(1) of the © in DSM Directive: a comparative perspective Roberto Caso and Federica Giovanella University of Trento Faculty of Law LawTech Research Group
- 2. Outline 1. Introduction 2. DMCA and “content recognition technologies” 3. CJEU and balancing of rights Caso - Giovanella - EUI - 2017 2
- 3. 1 Caso - Giovanella - EUI - 2017 3
- 4. Art. 13(1): an enigmatic norm Caso - Giovanella - EUI - 2017 4
- 5. Tons of criticisms E.g. •Christina Angelopoulos report •Sophie Stalla-Bourdillon et al. •MPI position statement •Communia position statement Caso - Giovanella - EUI - 2017 5
- 6. One of the worst pieces of EU copyright legislation • Technically confused and vague • Against the acquis communautaire • Wrong in terms of policy Caso - Giovanella - EUI - 2017 6
- 7. A policy perspective • From ex post enforcement to ex ante enforcement •Shaping technologies according to rightholders’ interests Caso - Giovanella - EUI - 2017 7
- 8. 2 Caso - Giovanella - EUI - 2017 8
- 9. Back to the future? DMCA in the making “It would be impossible for any carrier to review all of the material; and we cannot create a legal obligation that is technologically impossible to satisfy. Clearly, the potential for copyright infringement is real—as real as the impossibility of requiring a service provider to monitor every communication, including e-mail, homepages, and chat rooms [for infringing activity]” 144 Cong. Rec. S8729 (daily ed. Sept. 3, 1997) (statement of Sen. Ashcroft)
- 10. “We must begin a process internationally that is structured to balance the rights of copyright owners with the needs and technological limitations of those who enable the distribution of the electronic information, and with the rights and needs of individual end users”. “[O]ne of the many important values held in this country is the freedom of expression. The United States must continue to be a leader in the preservation of freedom of expression around the world” 144 Cong. Rec. S8729 (daily ed. Sept. 3, 1997) (statement of Sen. Ashcroft) Back to the future? DMCA in the making
- 11. “We must begin a process internationally that is structured to balance the rights of copyright owners with the needs and technological limitations of those who enable the distribution of the electronic information, and with the rights and needs of individual end users”. “[O]ne of the many important values held in this country is the freedom of expression. The United States must continue to be a leader in the preservation of freedom of expression around the world” 144 Cong. Rec. S8729 (daily ed. Sept. 3, 1997) (statement of Sen. Ashcroft) Back to the future? DMCA in the making Right to intellectual property Right to intellectual property Freedom to conduct a business Freedom to conduct a business Freedom of expression Freedom of expression
- 12. DMCA §512 No legal obligations on intermediaries to implement content recognition technologies. However, §512(i) requires that each intermediary “accommodates and does not interfere with standard technical measures [that] have been developed pursuant to a broad consensus of copyright owners and service providers in an open, fair, voluntary, multi- industry standards process [that] do not impose substantial costs on service providers or substantial burdens on their systems or networks”. 512(m) Protection of Privacy.-Nothing in this section shall be construed to condition the applicability [of OCILLA safe harbors] on- (1) a service provider monitoring its service or affirmatively seeking facts indicating infringing activity, except to the extent consistent with a standard technical measure complying with the provisions of subsection.
- 13. UGC Services Principles No «broad consensus of copyright owners and service providers» has been reached however UGC Services Principles were adopted: “3. UGC Services should use effective content identification technology […] with the goal of eliminating from their services all infringing user-uploaded audio and video content for which Copyright Owners have provided Reference Material” fingerprinting
- 14. New law (art. 13(1)), old problems Content recognition technologies -have false positives -imposes high costs on intermediaries -require traffic filtering -all the same do not protect IP properly
- 15. Content recognition technologies -have false positives -impose high costs on intermediaries -require traffic filtering -all the same do not protect IP properly Art. 11 CharterArt. 11 Charter Art. 16 Charter Art. 16 Charter Art. 8 CharterArt. 8 Charter Art. 17(2) CharterArt. 17(2) Charter New law (art. 13(1)), old problems
- 16. Weird enough… Art. 13(1) requires the measures to be adopted to be «appropriate and proportionate» This recalls the idea of rights balancing How can technology encoding a rule allow rights balancing Caso - Giovanella - EUI - 2017 16
- 17. 3 Caso - Giovanella - EUI - 2017 17
- 18. Would everything be lost? “Community law requires that, when transposing those directives, the Member States take care to rely on an interpretation of them which allows a fair balance to be struck between the various fundamental rights protected by the Community legal order. Further, when implementing the measures transposing those directives, the authorities and courts of the Member States must not only interpret their national law in a manner consistent with those directives but also make sure that they do not rely on an interpretation of them which would be in conflict with those fundamental rights or with the other general principles of Community law, such as the principle of proportionality” Case C-275/06 Productores de Música de España (Promusicae) v Telefónica de España SAU, judgment of 29 January 2008
- 19. In CJEU we trust
- 20. The evolution of balancing of rights From Promusicae to Mc Fadden: i.e. from generic to (too) specific -Providers are increasingly treated as private enforcers (of private rights) -Decisions are more detailed and leave little leeway to national judges -Copyright becomes the driver of Internet law Caso - Giovanella - EUI - 2017 20
- 21. In CJEU we trust
- 22. References C. Angelopoulos (2017). On Online Platforms and the Commission's New Proposal for a Directive on Copyright in the D Communia (2017). Position paper: Use of Protected Content by Information Society Service Providers E. Engstrom, N. Feamster (2017) The Limits of Filtering: A Look at the Fucntionality & Shortcomings of Content Detection Tools MPI (2017). Position Statement on the Proposed Modernisation of European Copyright Rules F. Giovanella (forthcoming), Copyright and Information Privacy: Conflicting rights in balance (Edward Elgar) IViR (2016) Study of fundamental rights limitations for online enforcement through self- regulation S. Stalla-Bourdillon, E. Rosati, K. Turk, C. Angelopoulos, A. Kuczerawy, M. Peguera, M. Husovec (2016). A Brief Exegesis of the Proposed Copyright Directive L. G. Gallo (2011). The (Im)possibility of “Standard Technical Measures” for UGC Websites, 34(2) Columbia J. of Law & the Arts Caso - Giovanella - EUI - 2017 22
- 24. LawTech Trento http://www.lawtech.jus.unitn.it/ 24Caso - Giovanella - EUI - 2017
- 25. Copyright Copyright by Roberto Caso and Federica Giovanella This work is licensed under a Creative Commons Attribution 4.0 International License Caso - Giovanella - EUI - 2017 25
Notas del editor
- The same issues we are facing today with the DSM proposal were faced by the DMCA drafters back i 1997. They were upset that creating an obligation to review all the material would have not been possible (technology was perhaps not so advanced)
- They were also concerned to find a correct balancing among different rights: namely copyright owners rights; the needs of the intermediaries and last but not least also freedom of expression, which is – as you know – one the most important values for USA society/legal system.
- So they avoided introducing a legal obligation on intermediaries, however they introduced §512(i) that requires + it introduces a specific provision with regard to privacy. Providers are not obliged to monitor or actively seek for infringing content, EXCEPT to the extent consistent wjuth the standard technical measures complying with DMCA
- A real broad consensus has never been reached but some big RH together with UGC services have agreed upon some UGC services principles that require providers to implement effective content identification technology to eliminate ALL infringing user-uploaded video and audio contents. Basically – the way the principles are written – refers to fingerprinting
- UGC have lead platfrom to introduce content recognition technologies- youtube has its own one, altough it was not part of this agreement. It is however demosntrated that they have a number of false positives, as they cannot understand if there is a parody, a fair use and so on. They impose high costs on intemediaries, and therefore impair the creation of new platforms or the development of small existing ones, and it therefore threatens pluralism. They require traffic filtering and so they are also dangerous in terms of personal data protection
- UGC have lead platfrom to introduce content recognition technologies- youtube has its own one, altough it was not part of this agreement. It is however demosntrated that they have a number of false positives, as they cannot understand if there is a parody, a fair use and so on. They impose high costs on intemediaries, and therefore impair the creation of new platforms or the development of small existing ones, and it therefore threatens pluralism. They require traffic filtering and so they are also dangerous in terms of personal data protection
- In case of enactment of the current text, such measures could violate some of the most important fundamental rights online, there would be the need to strike a fair balance as Promusicae and other more recent cases require.
- So should we trust the CJEU? It might our last chance, our superhero. In the worst case scenario we could still rely on the CJEU that might declare a specific measure as not balanced or a specific interpretation of the Directive as not adequate. So perhaps we could trust the CJEU
- Or perhaps we could not