U.S. organizations warn against unintended consequences of Europe’s Digital Single Market strategy
By: Josh Lamel, Executive Director of the Re:Create Coalition
The European Union (EU) is working to modernize its laws and bring them up to speed in the digital area. European Commission President Jean-Claude Juncker announced plans in 2015 to establish a Digital Single Market (DSM). The EU recently solicited feedback from stakeholders in a consultation on the “Regulatory environment for platforms, online intermediaries, data and cloud computing and the collaborative economy” to inform the rulemaking process to establish a DSM.
The Re:Create Coalition is comprised of a number of organizations from the American Library Association to the R Street Institute to the Computer and Communications Industry Association. We are all working to ensure that copyright laws are clear, simple and transparent, while also fostering innovation, creativity, education and economic growth. Below is a recap of the comments filed by the coalition and a number of its members:
Center for Democracy and Technology (CDT) on takedown notices: “We must emphasise that any concept of ‘take down and stay down’ as a required action would necessarily oblige intermediaries to monitor the content on their services, in direct conflict with Article 15 of the ECD [E-Commerce Directive]. The prohibition on monitoring obligations has been an essential protection for the development of sites and services that host individual speech. A monitoring obligation would create a massive burden for large services that handle vast quantities of content every day; it would also stifle smaller competitors from ever getting off the ground.”
Computer and Communications Industry Association (CCIA) on ancillary copyright: “The economic relationship between publishers’ freely available content online and news aggregators is symbiotic…If anything, the ancillary copyright has created economic and societal problems. In Spain, traffic to smaller publications has decreased considerably leading the less media pluralism. Not only Google News shut down but also smaller, innovative aggregators…[This] runs contrary to the Court of Justice of the European Union’s judgment in Svensson which ruled that linking to freely available content does not infringe copyright.”
Electronic Frontier Foundation (EFF) on take down and stay down: “Context is very important. Content that may be illegal or infringing in one context may be innocuous in another. There is no substitute for removals being treated on a case by case basis. Notice and staydown also almost inevitably involves a degree of filtering/surveillance…Implementing liability or other provisions that indirectly lead to intermediaries imposing such measures is as unacceptable as implementing such measures directly. Such obligations would also further deepen the existing imbalance in the way in which notices are handled.”
American Library Association and Association of Research Libraries (as part of the Library Copyright Alliance) on a text and data mining exception: “We are pleased that the Commission is considering an EU-wide exception for TDM [text and data mining]. Any such exception should not be limited to scientific research, nor should it be restricted to non-commercial entities. Several of the U.S. fair use cases have involved commercial entities, and an overly restrictive TDM exception will perpetuate an unlevel playing field for European commercial entities. Furthermore, excluding commercial entities from a TDM exception will deny the public the services such entities could provide.”
Organization for Transformative Works (OTW) on take down and stay down: “Our staff is all volunteer, including our support and abuse team, who are not lawyers. A standard that requires us to behave like YouTube, with automated scrutiny, or with ‘staydown’ to keep a piece of content down no matter who posts it, would simply shut us down, despite all the benefits we provide. We do not have the resources to screen all content that is posted…The internet is much bigger and more diverse than the sites that are often focused on in these discussions of ‘staydown’ or other alternatives. Civil society is more than businesses and the inquiry should keep that in mind.”
Public Knowledge on the rights of content providers: “The rights of content providers are as important and valid as the claims of rightsholders. Online platforms are critical conduits of speech and expression, and any attempt to have speech and expression removed from them should be subject to a balanced review, especially if the review is occurring outside of courts, where due process rights are better protected…Where an act of speech or expression is challenged via a takedown mechanism, it is appropriate and necessary that the content provider be given an opportunity to address the challenge before their speech is suppressed. At a minimum, content providers should be notified of challenges, and be given the opportunity to counter-challenge and have their content reinstated.”
R Street Institute on intermediary liability: “Under the E-commerce directive, intermediaries are already required to take down materials that are obviously illegal…The responsibility to determine legality should rest, as it always has in both online and offline environments, with legal professionals who are trained and equipped to interpret the laws made by governments. The enforcement should rest with the governments who create the laws. It is undesirable to conflate governance and business. This would fundamentally threaten the functioning of democracy. It is unrealistic to assume that companies’ success in creating services in a digital environment would somehow make them more qualified to act as arbiters in controversial legal decisions.”
Re:Create Coalition on take down and stay down: “Take down and stay down is a chill on speech in society, as well as assumes guilt before innocence. It creates a problematic incentive structure where the system could be abused too easily. The recent decisions of the Court of Justice that regimes like this would be inconsistent with the E-Commerce directive got it correct.”
It’s important the European Union take into consideration the unintended consequences of harmful regulations, such as take down and stay down. We call on the EU to focus on how to foster a thriving creative economy above all else.