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The entertainment industry has started a campaign to re-write the history of Europe's most controversial #copyright law, #Article17, the infamous #uploadfilter provision. The goal: to bully governments & the @EU_Commission into simply ignoring all user rights that we fought for.
Last year the EU adopted #Article17, which requires platforms to magically prevent #copyright infringement before it happens, while leaving all legal content online, and without generally monitoring user uploads. This is impossible, of course.
Most national governments are waiting for guidance from the @EU_Commission to help them make sense of #Article17. The Commission asked for input on a document with some basic principles, my response with @edri & @freiheitsrechte can be found here: https://twitter.com/edri/status/1303993660766334979
Today, rightsholders published a letter full of outrageous claims about the history of #Article17. Basically, they pretend that the protests against #uploadfilters never happened and no safeguards had been added to the law. Here's why they are wrong: https://www.ifpi.org/wp-content/uploads/2020/09/Rightholders-letter-on-Consultation-on-Article-17-Guidance-10-09-20.pdf
Claim 1: Rightsholders say that platforms like #YouTube were liable for #copyright infringements of their users all along. The only thing that changes is that #Article17 makes platforms *less* liable than before, because they can now avoid liability by using #uploadfilters.
This is a spectacular misrepresentation of the facts: If #Article17 helps platforms and hurts rightsholders, then why did the entertainment industry lobby for it, accusing everybody who opposed it, like users, academics and fundamental rights experts, to be paid by Google?
The only evidence rightholders have for their absurd theory that platforms were liable all along is a single word, "clarify", in a non-binding recital. They interpret that word as " #Article17 doesn't change anything, it repeats what the law already said before".
Rightholders tried that argument in a recent court case, where they want to hold #YouTube liable for user uploads prior to adoption of #Article17. The argument didn't go over so well with the advocate general, who pretty much laughed them out of the room: http://curia.europa.eu/juris/celex.jsf?celex=62018CC0682&lang1=en&type=TXT&ancre=
Here's his response to the rightholders' claim: "I cannot accept that argument. In my eyes, it would be contrary to the principle of legal certainty to infer such retroactive application from the mere use of an ambiguous term in a recital that is of no binding legal value." Ouch!
Claim 2: According to rightholders, #Article17 requires platforms to get licenses for all content in the world. Although Article 17 says that platforms only have to make "best efforts", and has detailed criteria for proportionality, they want this to be ignored in national laws.
The result of this interpretation would be that smaller platforms would have no idea what they have to do to comply with #Article17, because Member States are not allowed to tell them what is considered proportionate, nor what is considered a best effort.
With no legal certainty, platforms would basically be at the mercy of every single rightholder and would have to take every license offer, no matter how unfair or costly. Obviously rightholders would like that, but it ignores what #Article17 actually says about proportionality.
Claim 3 is the most outrageous: #Artlicle17 clearly says that legal content must not be blocked. #Uploadfilters can't guarantee that, so rightholders claim that this is fulfilled as long as users have the right to complain about wrongful blocking *after* it has already happened.
This completely goes against what users fought for in the negotiations and what #Article17 says, that it "shall in no way affect legitimate uses". Of course, if all legal parodies, quotes etc. get automatically blocked by #uploadfilters, legitimate uses are affected pretty badly.
It's no secret that rightholders wish that those user rights weren't included in #Article17, but they are, and there would have never been a majority for the Directive in Parliament without them. Member States that don't protect legal uploads violate #Article17, pure and simple.
Claim 4: This one is a bit silly. In the guidance on #Article17, the @EU_Commission points out that while #Article17 only makes a few copyright exceptions mandatory, such as parody & pastiche, Member States can also implement other, optional exceptions, such as incidental use.
The rightholders' reaction is OUTRAGE! How dare the @EU_Commission acknowledge that other #copyright exceptions exist and are free to adopt them? Of course, what the Commission says is correct and incidental inclusion is an important exception for freedom of expression.
The letter blatantly lies by claiming that the #copyright directive says that quotation & parody are "the only exceptions" that protect freedom of expression. It actually says that quotation, criticism, review, caricature, parody or pastiche are *particularly* important for FoE.
If what the rightholders say were true, then the #copyright exceptions for news reporting, political speeches or religious celebrations would have NO connection with freedom of expression, simply because #Article17 does not make those exceptions mandatory, which is preposterous.
To summarize: The entertainment industry is joining forces to push for the worst possible implementation of #Article17, which would not only require out-of-control #uploadfilters without any safeguards, but also violate fundamental rights AND the very text of Article 17 itself.
None of this should be surprising, but it shows that even when politicians pass a law that was dictated by rightholders, they will still complain about it and threaten the destruction of gazillions of jobs if politicians dare to put in any safeguards for the public interest.
We must not let them get away with their revisionist history version of #Article17 that ignores all user rights we have fought for. We must follow closely how our governments implement the directive, and make it clear that if they violate our rights, we will take them to court.
