In a plenary vote last month, the European Parliament backed a slightly amended version of the original Article 13 proposal.
According to critics, the widely protested plan will result in an indirect upload filter requirement for many Internet services.
While the vote has made it more likely that Article 13 will be implemented, it is yet to be set in stone. There is still strong opposition from individuals and groups who fear that it will hurt freedom of expression.
The Electronic Frontier Foundation (EFF) has been a critic from day one. The digital rights group fears that, if the European plan is implemented, false copyright claims will lead to increased censorship.
This week the group voiced its concerns in a letter that was sent to all members of the EU bodies that will negotiate the final draft of the proposal.
EFF special consultant Cory Doctorow notes that the low evidentiary standard is particularly problematic. As a result, rightsholders can, intentionally and by accident, submit bogus takedown requests without any repercussions.
This can result in absurd situations where white noise or birds chirping, and other harmless content is flagged as copyright infringement.
One solution that could help to limit this type of abuse, according to the EFF, is to hold copyright holders accountable for their takedowns.
“To limit abuse, Article 13 must, at a minimum, require strong proof of identity from those who seek to add works to an online service provider’s database of claimed copyrighted works and make ongoing access to Article 13’s liability regime contingent on maintaining a clean record regarding false copyright claims,” Doctorow writes.
Keeping track of the accuracy of various takedown requests, and who’s responsible for them, will help people who are wronged to take legal action in response. In addition, repeat senders of false claims can then be barred from using the automated filters.
“In the event that rightsholders repeatedly make false copyright claims, online service providers should be permitted to strike them off of their list of trusted claimants, such that these rightsholders must fall back to seeking court orders – with their higher evidentiary standard – to effect removal of materials,” Doctorow adds.
As a result, Internet services should not be held liable for reports which are submitted by copyright holders who have been struck off. And to prevent a whack-a-mole situation, information about penalized rightsholders should be shared in public so they can be removed by other services as well.
“Online service providers should be able to pre-emptively strike off a rightsholder who has been found to be abusive of Article 13 by another provider,” the EFF notes.
By adding more transparency and accountability, the EFF hopes that Article 13 will be more balanced. It, therefore, encourages the negotiators to consider these recommendations, as well as several possible improvements to Article 11, the so-called “link tax”.
The coming months will turn out to be crucial for the EU’s copyright reform. Not only will the final text be agreed upon during the “trilogue” meetings, the EFF notes that there is also a chance that the controversial copyright reform plans will be blocked by member states.
Following local protests, the Italian Government recently opted to ban both Article 11 and Article 13. And with other opposing member states, there is a chance that a “blocking minority” could oppose the reform plans. That is, if all opposing members can agree on how to move forward.
In light of the recent setbacks, that offers a glimmer of hope to opponents of the upload filter proposals, but for now they’re still fighting at a disadvantage.
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Written by David Minister
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