EU civil society says Commission’s copyright guidance violates ‘fundamental rights’

Protesters gather to protest against the reform of the EU Copyright act, in Berlin, Germany, 02 March 2019. [EPA-EFE/JENS SCHLUETER]

A group of EU civil society organisations has written to the European Commission’s Internal Market chief Thierry Breton, highlighting ‘grave fundamental rights concerns’ related to the Commission’s draft guidance on the application of the copyright directive.

A backlash has arisen from those in the civil rights community who feel that Article 17 of the directive, designed to ensure that platforms would no longer make copyright-infringing work available online, breaches fundamental rights.

In particular, the contingent took aim on Monday (14 September) at the proposed use of automated content-blocking technologies in the detection of copyright-infringing material online.

Consultations taking place over the latter half of 2019 and into early 2020 were fed into draft guidance published by the Commission last week.

That guidance, the rights groups say, infringes upon the right to free speech and expression, in its endorsement of the use of automated content recognition technologies, designed to stop content that breaches the rules before it appears online. Critics have dubbed such technology ‘upload filters.’

“We remain deeply concerned that the guidance endorses the use of automated content blocking by online services even though it is clear that this will lead to the violation of fundamental rights,” stated the letter, signed by organisations including CommuniaLiberties and EDRi.

“Given this endorsement, the proposed guidance does not take away our concerns that implementations of Article 17 based on the proposed guidance would violate established principles of EU law.”

Following the consultatory meetings between stakeholders and the Commission, participants have been invited to respond to the EU executive’s draft guidelines. This will eventually feed into the completed guidance on the application of Article 17, which is expected to be formally delivered to EU nations by November.

Full transposition of the copyright directive is required from member states by June 2021.

Following the submission of the letter on Monday, Eva Simon, a senior advocacy officer at the Civil Liberties Union for Europe (Liberties) called on the Commission to reconsider its position on the use of automated content recognition technology.

The use of upload filters has always been the sticking point when it comes to the EU’s copyright rules,” she said.

“Upload filters are inaccurate and don’t understand context. Without any kind of human intervention, the videos or articles people upload to the internet may be blocked by these filters, which breaches freedom of expression and the freedom to access information. We can’t rely solely on machines to protect people’s fundamental rights.

In the midst of the Commission consultations, there has been heavy lobbying on both sides of the debate recently. Last week, a coalition of rights holders and content creators, including the Association of Commercial Television in Europe and News Media Europe, delivered a critical letter to the Commission from the other side of the debate.

The group hit out at the EU executive’s interpretation of various aspects of Article 17 in such a way that “conflicts with the Commission’s decision to make culture one of Europe’s priority ecosystems for recovery from the impact of the COVID-19 pandemic.”

[Edited by Zoran Radosavljevic]

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