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The specific issue with Article 13 is that it requires hosting services that allow user-uploaded content to be published to ensure that copyrighted content is n

The specific issue with Article 13 is that it requires hosting services that allow user-uploaded content to be published to ensure that copyrighted content is not made available. The specific wording in the law is "non-availability". This is different from takedown mechanisms (that already exist) in that it requires the service to screen the content before the fact, or become liable for the content. The current situation is that the service is not liable for copyright infringement as long as they implement a takedown mechanism - that is, allow rightsholders to complain and have the content taken down. The new situation would be that the service becomes liable at the time of publication. This shift in liability is what constitutes the most significant change, and because there is no punishment for false positives (failing to publish non-infringing content) but there is a punishment for false negatives (failing to stop the publication of infringing content) this will lead to a chilling effect. If you run a service that allows users to upload any kind of content, you would become liable for their copyright infringements. The talk about filters comes directly from Voss's (the law's author's) blog, where he explains the law and what is intended with it. There is a specific reference to google's content id as an example of the kind of measures services are expected to implement. In the law text these are refered to as "effective technologies". The specifics of how the filter is implemented is not exactly relevant in this case, but another aspect is - currently nobody except google has an implementation of this technology, and google's implementation has very bad recognition rates and is also easily circumvented. So if you run a service that allows user-uploaded content, you now either pre-screen each post manually, license a buggy filter from google, take the risk of being sued for something your users posted, or block user-submitted content entirely. The last one is the only option for things like small forums. Reading specifically into the law's author's blog post about this, they state that if something is wrongly filtered, the recourse is attempting to force the service to accept the upload by taking them to court. Clearly this is not something you can do on a routine basis, so if your content gets wrongly identified as infringing (and of course automated systems cannot recognize parody, or remixes, or similar but unrelated content as non-infringing) you'll end up effectively prevented from posting it. So yes, you're right that there are already mechanisms to take down infringing material. The added change in this law is that it makes publishing infringing material the point of liability, and so each service becomes responsible for all the content that its users post. This is the significant change.

derriz 8y ago
Ok I'll look for Voss's blog. Because, here is the full text of the infamous article 13 and there is nothing in it that I can read as "makes the publishing infringing material the point of liability": 1.Information society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users shall, in cooperation with rightholders, take measures to ensure the functioning of agreements concluded with rightholders for the use of their works or other subject-matter or to prevent the availability on their services of works or other subject-matter identified by rightholders through the cooperation with the service providers. Those measures, such as the use of effective content recognition technologies, shall be appropriate and proportionate. The service providers shall provide rightholders with adequate information on the functioning and the deployment of the measures, as well as, when relevant, adequate reporting on the recognition and use of the works and other subject-matter. 2.Member States shall ensure that the service providers referred to in paragraph 1 put in place complaints and redress mechanisms that are available to users in case of disputes over the application of the measures referred to in paragraph 1. 3.Member States shall facilitate, where appropriate, the cooperation between the information society service providers and rightholders through stakeholder dialogues to define best practices, such as appropriate and proportionate content recognition technologies, taking into account, among others, the nature of the services, the availability of the technologies and their effectiveness in light of technological developments.
- Kliment 8y ago
  You don't need to look for it, here's a link to the specific post I'm referring to: https://www.axel-voss-europa.de/2018/06/18/stellungnahme-zur-reform-des-urheberrechts/ https://www.axel-voss-europa.de/2018/06/18/stellungnahme-zur... (it's in German, unfortunately) Looks like the text has changed a bit since it was last in committee ("non-availability" changed to "prevent the availability") but in this case the issue is: "[...] service providers [...] shall [...] take measures [...] to prevent the availability [...] of works or other subject-matter identified by rightholders [...]" This is a bit technical but "shall" here has the legal effect of "are under obligation to". This is what makes responsibility for content a matter for the service provider, whereas previously the service provider was not required to prevent availability, only to take content down when requested. The current situation is that the USER is responsible for copyright infringement, and the service provider is not, for user-provided content, but the service provider has to respond to and act on takedown requests. This is what's being changed. And "effective content recognition technologies" is what other people are referring to as "upload filters". This "content recognition technology" (which Voss specifies to be google's content id or something very like it) is given as an example, but there are no criteria here other than appropriateness and proportionality, which are not defined anywhere (is it proportional in terms of effort for the rightholder, the user, or the service provider?) and it's unclear what the alternative to said technology could be. Practically if it's your responsibility to prevent the availability of content you need to screen it before publication, either manually or automatically, and somehow allow rightholders to prevent its publication. This could mean comparing against a list of all copyrighted works, but that would cause difficulties in compiling such a list, keeping it up to date, and deciding how close a match it is. Voss, in his post, says that publishers will provide service providers with such lists, but the comparison operation itself is computationally heavy, especially for video, and also error-prone. It's also subject to abuse as anyone who claims to be a rightholder can effectively censor anyone else's content by putting it on said list. Youtube is the only implementation I'm aware of of such a technology, and their filter is terrible in terms of recognition, both in false positives and false negatives. The law as written effectively gives no alternatives to content recognition technology (are you going to manually check that everything everyone uploads is not on a large and growing list of works?). In the end, whatever implementation is picked, it will effectively prevent the publication of a large category of legitimate content. Putting the matter of whether the whole thing is a good idea aside, it's also bad law, in that it's an unclear formulation of requirements that leaves a lot open. It leaves the question of what is appropriate and proportional to member states, and ultimately to the courts, because it doesn't specify any criteria. It gives a specific technical solution as an example but doesn't specify what makes it appropriate or not, making it, again, a matter for the courts to decide whether specific implementations are appropriate or not. It doesn't even specify what qualifies as "large amounts" of works.

derriz 8y ago

Ok I'll look for Voss's blog. Because, here is the full text of the infamous article 13 and there is nothing in it that I can read as "makes the publishing infringing material the point of liability": 1.Information society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users shall, in cooperation with rightholders, take measures to ensure the functioning of agreements concluded with rightholders for the use of their works or other subject-matter or to prevent the availability on their services of works or other subject-matter identified by rightholders through the cooperation with the service providers. Those measures, such as the use of effective content recognition technologies, shall be appropriate and proportionate. The service providers shall provide rightholders with adequate information on the functioning and the deployment of the measures, as well as, when relevant, adequate reporting on the recognition and use of the works and other subject-matter. 2.Member States shall ensure that the service providers referred to in paragraph 1 put in place complaints and redress mechanisms that are available to users in case of disputes over the application of the measures referred to in paragraph 1. 3.Member States shall facilitate, where appropriate, the cooperation between the information society service providers and rightholders through stakeholder dialogues to define best practices, such as appropriate and proportionate content recognition technologies, taking into account, among others, the nature of the services, the availability of the technologies and their effectiveness in light of technological developments.

Kliment 8y ago
You don't need to look for it, here's a link to the specific post I'm referring to: https://www.axel-voss-europa.de/2018/06/18/stellungnahme-zur-reform-des-urheberrechts/ https://www.axel-voss-europa.de/2018/06/18/stellungnahme-zur... (it's in German, unfortunately) Looks like the text has changed a bit since it was last in committee ("non-availability" changed to "prevent the availability") but in this case the issue is: "[...] service providers [...] shall [...] take measures [...] to prevent the availability [...] of works or other subject-matter identified by rightholders [...]" This is a bit technical but "shall" here has the legal effect of "are under obligation to". This is what makes responsibility for content a matter for the service provider, whereas previously the service provider was not required to prevent availability, only to take content down when requested. The current situation is that the USER is responsible for copyright infringement, and the service provider is not, for user-provided content, but the service provider has to respond to and act on takedown requests. This is what's being changed. And "effective content recognition technologies" is what other people are referring to as "upload filters". This "content recognition technology" (which Voss specifies to be google's content id or something very like it) is given as an example, but there are no criteria here other than appropriateness and proportionality, which are not defined anywhere (is it proportional in terms of effort for the rightholder, the user, or the service provider?) and it's unclear what the alternative to said technology could be. Practically if it's your responsibility to prevent the availability of content you need to screen it before publication, either manually or automatically, and somehow allow rightholders to prevent its publication. This could mean comparing against a list of all copyrighted works, but that would cause difficulties in compiling such a list, keeping it up to date, and deciding how close a match it is. Voss, in his post, says that publishers will provide service providers with such lists, but the comparison operation itself is computationally heavy, especially for video, and also error-prone. It's also subject to abuse as anyone who claims to be a rightholder can effectively censor anyone else's content by putting it on said list. Youtube is the only implementation I'm aware of of such a technology, and their filter is terrible in terms of recognition, both in false positives and false negatives. The law as written effectively gives no alternatives to content recognition technology (are you going to manually check that everything everyone uploads is not on a large and growing list of works?). In the end, whatever implementation is picked, it will effectively prevent the publication of a large category of legitimate content. Putting the matter of whether the whole thing is a good idea aside, it's also bad law, in that it's an unclear formulation of requirements that leaves a lot open. It leaves the question of what is appropriate and proportional to member states, and ultimately to the courts, because it doesn't specify any criteria. It gives a specific technical solution as an example but doesn't specify what makes it appropriate or not, making it, again, a matter for the courts to decide whether specific implementations are appropriate or not. It doesn't even specify what qualifies as "large amounts" of works.