Article 13 of the proposed Directive would make online platforms liable for any copyright infringements committed by their users. As a result they will need to filter all uploads by users for potential copyright infringements. This will result in a massive limitations of users' freedom of expression and make it difficult for all kinds of platforms to continue to allow user uploads. Article 13 will change the internet as we know it.
The upload filters mandated by Article 13 of the proposed Directive are supposed to address a so-called "value gap" identified by the music industry. According to the music industry, online platforms such as YouTube and Facebook make huge profits by selling advertisements alongside copyrighted works uploaded by their users–all without adequately rewarding the rightsholders. The music industry has long attempted to make open platforms directly liable for their users’ uploads. The music industry hopes that this will give them a better negotiating position vis-a-vis the big platforms.
Article 13 would make all platforms that allow user uploads liable for copyright infringements committed by their users, unless the platforms install upload filters and buy licenses from all the rightsholders. While this may be relatively easy for the big platforms, it will not be for the smaller ones. This will also inevitably lead to widespread over-filtering, since filters cannot recognize many perfectly legal uses of copyrighted works (e.g. parodies). The over-filtering will severely limit users' freedom of expression. In addition, the requirements imposed by Article 13 will affect all online platforms–even those that do not deal with music. Imposing burdensome filtering requirements on platform will mean that many will be forced to change or shut down, which will limit choice for internet users in Europe.
While there is nothing wrong with the intention to level the playing field between creators, rights holders, and internet platforms, making platforms liable for copyright infringements committed by their users will not achieve this objective, and it will negatively impact users' rights. Given that the central premise of Article 13 is fundamentally flawed, Article 13 cannot be fixed and should be removed from the proposed Directive in its entirety. A solution for reigning in the power of dominant platforms should be found outside of copyright legislation.
Still, the EU legislator seems poised to turn Article 13 into law. The European Parliament, the Member States, and the European Commission have agreed to make internet platforms directly liable for any copyright infringements their users commit. At this stage there is still no agreement on the exact nature of the measures (such as upload filters) that platforms would be required to put into place to limit their liability, or whether smaller platforms should be excluded from the obligations created under Article 13. If adopted, Article 13 will negatively affect users' ability to express themselves online will play second fiddle to the commercial interests of the music industry.
In the current situation online platforms are generally not liable for copyright infringements committed by their users. Article 14 of the E-Commerce Directive (ECD) states that the so called "information society service providers" cannot be held liable as long as they do "not have actual knowledge of illegal activity or information" and "upon obtaining such knowledge or awareness, act expeditiously to remove or to disable access to the information." In other words, platforms can host works uploaded by their users without any risk as long as they remove works once they receive information that those works are infringing. This limitation of the platform's liability for copyright infringement provided the legal foundation for the development of a wide range of online platforms that allow user uploads.
A large number of online platforms rely on the liability limitation provided by ECD. In addition, many platforms also enter into licensing agreements with rightsholders to ensure continued availability of works on their platforms and in order to see advertisements alongside content that they host on their platforms. YouTube also employs a voluntary upload filter called Content-ID that allows rightsholders of musical and audiovisual works and performances to either block their content from being made available or to monetize the content by selling advertisements against them.
The Commission's original version of Article 13 would require online platforms that "store and provide to the public access to large amounts of works [...] uploaded by their users" to conclude licenses with rightsholders and to take measures to ensure the functioning" of these licensing agreements. The last part of this would effectively require online platforms to install upload filters that would filter out works for which the online platforms do not have licenses in place.
The Commission proposal left a lot of key questions unanswered. Most importantly it put a lot of faith into filtering technology, even though such filters are clearly incapable of distinguishing between legal and infringing uses of a work. This makes it even worse that the proposal lacks meaningful protections for the rights users enjoy under exceptions and limitations. The proposal also stands in stark contrast with the liability limitations established under Article 14 of the ECD. Finally, the definition of platforms that would need to comply with Article 13 is so vague that the licensing and filtering obligations would likely affect online platforms that have nothing to do with the sharing for music or audiovisual works.
Both the Council and the Parliament have proposed extensive amendments to Article 13 that would result in versions of the Article 13 that are even worse than the Commission's proposal.
The version adopted by the European Parliament would make platforms liable for copyright infringements for every single work uploaded by their users. As a result of platforms’ liability for all works uploaded by their users, they are practically forced to install filters that will block everything that has not been licensed to them. The EP version of Article 13 would turn online platforms into platforms that distribute content licensed by the entertainment industry and nothing else. In the light of this, the fact that the Parliament’s text proposes stronger complaint and redress mechanisms for users is almost meaningless.
The Council text also makes platforms liable for uploads of their users, but gives the platforms a chance to limit this liability by implementing upload filters. These filters would need to block (and subsequently suppress) all unlicensed materials identified by their rightsholders. If platforms can demonstrate that they have “effective and proportionate” filters in place that “prevent the availability of the specific works identified by rightholders” and that they act “expeditiously to remove or disable access” to infringing works upon notification, then platforms would not be held liable for infringements of works that have been uploaded without authorisation. In other words, the Council text requires platforms to filter works that are in the catalogues of rightsholders, but allows them to leave other works online unless they are notified of infringements.
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