Letter to MEPs regarding Articles 11 and 13 of proposed copyright directive

Dear MEPs,

I am writing to urge you to vote against the proposed EU copyright directive when the plenary vote is held on the 5th July, due to the inclusion of the proposals in Articles 11 and 13, which I believe represent a major threat to freedom of speech on the internet, will undermine development of open source software and will put European internet companies, especially small companies, at a serious competitive disadvantage. 

Regarding Article 13, this makes platforms that allow users to upload content liable for any copyright infringements those users might make, unless they can demonstrate they made best efforts to prevent the upload appearing in the first place. 
This will mean that simply in order to minimise the chances of being held liable for an infringement, they will have to check every single upload against copyrighted works to judge whether they infringe those works. This will entail automated filters being applied to all uploads of content whether it be music, photos, video, text, podcasts or even code (e.g. on sites such as Github), and the platforms will err on the side of caution to block uploads if there is any doubt.  
This is a seriously misguided approach to copyright enforcement for the following reasons:
  • Such automated filtering requires general mass surveillance of user’s activities on the internet and thus constitutes a general monitoring obligation, which is on contradiction to rulings of the European Court of Justice
  • Algorithms cannot tell whether copyright has been infringed. 
    • They can at best indicate that there is some content in common shared between an uploaded file and any files in the database being checked. However this does not tell you whether the copying is permitted under fair use laws or even if whether it’s the uploaded file or the file in the database that’s violating copyright.
    • No filter can possibly review every form of content covered in the mandate including text, audio, video, images and software.
      • Article 13’s mandate is technically infeasible.
      • Attempts to automate filtering of videos and music, such as Google’s Content ID, are already making ridiculous errors and applying this to every platform and every form of copyright is simply insane.
    • Users will thus find their freedom of expression curtailed because it will be difficult to quote from or to parody copyrighted works, even though it is perfectly legal to do so, due to the filters over-blocking.
  • The requirement to put such filtering in place will add considerably to the cost of setting up any internet based businesses that involve enabling users to share content of any sort and thus put European start-ups and other European countries at a major disadvantage,
  • The requirement to filter all forms of copyrighted material this way impacts on code sharing sites and thus will undermine the development of open source software that has powered much of the modern internet, including most major AI and machine learning platforms and packages, as explained in this post from Github (probably the most widely used code sharing site currently). Note that clauses restricting the requirement to not for profit code sharing sites do not address these concerns properly.   
Regarding Article 11, my understanding is that this will require people to get a licence if they wish to quote snippets from journalistic content (e.g. newspaper and magazine articles) in online works. This again is a throughly misguided proposal:
  • Quoting from articles is normally protected by fair use laws and is standard practice in academic discourse, blogging, and for that matter in journalism itself.
  • The proposal does not even allow a publisher to waive the requirement for a licence thus interfering with the rights of those who wish to publish under the Creative Commons licence
  • The proposal violates the Berne convention.
  • The aim of the proposal is apparently to address the issue that some publishers believe that news aggregators, by automatically providing titles and/or snippets when linking to articles are somehow depriving  the publishers of those articles of revenue. This fundamentally misunderstands what is happening here:
    • By providing links with snippets to news articles, the news aggregators drive traffic to the sites concerned, that is they provide publicity for the site/articles concerned and consumers will visit who would not otherwise have done so. Attempts to prevent people from providing such links will simply lead to those sites being ignored.
    • There are numerous ways a site can prevent aggregators from picking up articles from (sections of) their website. For example, to stop Google (and many others)  indexing pages you can simply set up a robots.txt file. See also: http://www.robotstxt.org/

I believe both of these proposals, if enacted, will do great harm to the openness of the internet in Europe, will seriously undermine freedom of speech on the European internet, and will put European companies, especially the smaller companies, at a major disadvantage as they try to deal with the burdens these would impose on them.

I urge you please to vote against the copyright proposal accordingly, in the upcoming plenary vote on July 5th.

Yours Sincerely,

James Hammerton

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