UN expert strongly criticizes new EU copyright directive and upload filters

David Kaye, the UN Special Rapporteur on freedom of expression, believes the new EU Copyright Directive is not in line with international standards on freedom of expression. He is particularly critical of Article 13 and the resulting upload filters.

Kaye says Europe has a responsibility to modernize its copyright laws in this digital age, “but this should not come at the expense of the freedom of expression Europeans have today.” “Article 13 appears to be aimed at encouraging internet platforms to monitor and restrict user-generated content, even when uploaded. Such pressure to filter prior to publication is not only unnecessary, but also disproportionate as a solution to the fighting copyright infringement on the Internet,” Kaye said.

The UN rapporteur also discusses the exceptional position included in the revised Copyright Directive for relatively new providers that only have a small share in the European markets. According to Kaye, most platforms will not comply with the exception rules under the latest version of the directive. He therefore foresees that they will face ‘legal pressure to establish and maintain expensive, extensive filter infrastructure in order to comply with the directive’. “In the long run, this jeopardizes the future of information diversity and media pluralism, as only the biggest players will be able to afford this technology.”

This last point was also mentioned earlier by the German privacy watchdog. According to Ulrich Kelber, the head of the Bundesbeauftragte für den Datenschutz und Informationsfreiheit, the directive leads to the establishment of upload filters and benefits the major parties. In his view, this is not only the case because small platforms and service providers are unable to conclude licensing agreements with all conceivable rights holders. Kelber also states that smaller parties are unable to set up their own upload filters, which means that they have to fall back on the tools, filters and technology of large IT companies. According to him, this leads to an ‘oligopoly’ in which only a small group of suppliers of filtering techniques remains who manage more or less all internet traffic from relevant platforms and services. According to Kelber, this gives them far-reaching information about all users.

Kaye believes that specific rules are needed to defend free speech. In the absence of this, he says it is ‘far from clear’ how EU member states and internet platforms must comply with the safeguards of the directive. This includes an exception for quotes, criticism, reviews and the use of copyrighted material for caricatures, parodies and pastiches. Kaye argues that even the most experienced lawyers have trouble distinguishing copyright infringements from exceptions to these rules, which also vary by Member State. “The lack of clear, precise language in the directive creates even more legal uncertainty,” said the UN expert.

Previously, agreement was reached behind closed doors on the Copyright Directive, including the controversial Articles 11 and 13, which deal with the ‘link tax’ and ‘upload filters’ respectively. This agreement followed after France and Germany reached a compromise. Between 25 and 28 March, the final vote on the directive will be taken during the plenary session in the European Parliament.