International Free Expression Copyright

EU states raise questions about how new copyright law would be at odds with fundamental rights

Article 13 of the proposed updates to the Copyright Directive is in direct conflict with existing EU legislation and creates an unworkable legal framework

September 5, 2017A leaked document with questions to the legal service of the European Council reveals that several European states have deep concerns about the legal viability of Article 13 of the proposed updates to the Copyright Directive — a policy that would require any website that allows users to upload content to implement expensive filtering mechanisms to spy for copyrighted content.

Six countries — Belgium, the Czech Republic, Finland, Hungary, Ireland and the Netherlands — have raised questions about the how Article 13 would violate fundamental rights to free expression,protection of personal data, and create a legal framework that would make running an online business unviable. Key votes in the European Parliament on the issue are expected later this month.

Academics, Internet users, and digital rights advocates have been insisting for months that Article 13 would lead to widespread censorship of legal and legitimate expression online, and effectively puts bots and algorithms in charge of creativity on the web.

“Article 13 should be removed entirely from the proposed copyright package,” said Ruth Coustick-Deal, OpenMedia’s Digital Rights Specialist. “Not only is there huge legal uncertainty about the impact of the legislation, but it’s a clear violation of the existing EU regulation which prohibits any general obligation to monitor. European citizens’ human rights must be at the forefront of any future discussions of Article 13.”

Coustick-Deal continued: “If this legislation is allowed to go forward, its impact will be felt by every Internet user in Europe, not to mention European innovators whose growth will be made impossibly difficult by such an ambiguous legal regime. Article 13 ensures that the only companies that will be able to comply are established online media giants — achieving the opposite aim of the Digital Single Market Strategy.”

The questions that these six countries are raising also highlight the importance and legal requirement of copyright exceptions, such as the right to make parodies and quotations — something the Commission has refused to pay close attention to. Given the member states’ serious doubts whether Article 13 is legal, it is surprising that the Estonian Presidency’s published compromise proposals left the Article intact, and the questions unresolved. The Council Legal Services are expected to provide answers on 11-12 September at the meeting of the Council's Intellectual Property Working Party.

EU citizens can use this tool to send a message directly to their MEP on the content filtering measures.

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