[A2k] Automated platform filtering: La Quadrature sends its arguments to MEPs
La Quadrature du Net
contact at laquadrature.net
Tue Mar 7 06:01:25 PST 2017
TAGS : COPYRIGHT DIRECTIVE, EUROPEAN PARLIAMENT, CENSORSHIP, ANDRUS ANSIP,
La Quadrature du Net -- For immediate release
AUTOMATED PLATFORM FILTERING: LA QUADRATURE SENDS ITS ARGUMENTS TO MEPS
Paris, 7th march 2017 -- The draft of the new European copyright directive
 has been presented in september 2016. For now, the work in progress in
the european Parliament and mobilisations by concerned people and
organisations are multiplying. People pay great attention to the two
articles that La Quadrature du Net pointed in september  : Article 11
about ancillary copyright for press publishers, and Article 13 about the
use of effective content recognition technologies for content platforms.
La Quadrature du Net publishes today its positions about Article 13, that
have been fed by discussions  and workshops  with creators, legal
experts and more globally with common users of digital culture. These
positions are also send to the Members of the European Parliament to feed
the work done in the Committees. The preliminary work carried out by the
European Parliament Committtees show that, contrary to what one might
think, nothing is locked and many subjects remain open in the copyright
dossier. Articles 11 and 13 are subject to various discussions and some
proposals by MEPs show that they pay attention to the evolution of use.
Article 13 concerns the use of protect content by Internet services which
store and give access to a large number of works and protected materials
uploaded by the users. It provides that Internet services must take
measures to respect their agreements with rights holders, especially the
"use of effective content recognition technologies".
La Quadrature du Net, after several workshops and meetings, choose to
develop its arguments against Article 13 by taking several approaches : one
strictly focused on legal approach and rights oriented, a second one
dedicated to show how Article 13 will be counter-productive for creation
and creators, and the last one bringing out the lack of resolution of the
"value gap" between platforms and creators, as well as incompatibility with
the current regime of content hosters.
AUTOMATIZATION IN REMOVING ILLICIT CONTENT : A SERIOUS ATTACK AGAINST LEGAL
INVERTING THE BURDEN OF PROOF
Tobegin with, this article inverts the burden of proof: ratherthan
requiring the rightholder to prove illicit use of their work, it requires
the user who put work online to prove -- after it has been automatically
suppressed -- that its content does not violate the other's rights. This
mechanism can gravely damage freedom of expression and creation.
THE SANCTION'S AUTOMATIC NATURE DISCOURAGES ALL APPEAL AND ELIMINATES
THE RIGHT TO THE FAIR HEARING WHICH UNDERPINS THE PRINCIPLES OF THE RULE OF
Nothing in the directive requires platforms to consider potential claims
orto put in place appeal procedures (other than a vague obligation for
"adequacy and proportionality" and the mention of a complaint mechanism
with no guarantee).
Additionally, this measure forcefully BREAKS LEGAL EQUITY: although
rightsholders need not take legal action to suppress content, publishers
whose content has been abusively suppressed are themselves required to take
legal action to validate their rights a posteriori.
Anotherbreach of equity will certainly appear between rights holders
richenough to mark all or most of their catalogue so that the robots can
detect their reuse, and those who can't afford to do this: if this
automatization in removing illicit content becomes the norm, only those
wealthy enough to underwrite its costs will be able to have their rights
Will platforms which haven't received the fingerprints from rights holders
nonetheless be required to deploy detection tools? Will the absence of
these tools imply the de facto illegality of these platforms?
If the situation is unclear, there will be serious risks to competition
inthe sense that rights holders may find themselves in a position to decide
which platforms they deem legitimate, and therefore which ones may or may
not continue to exist.
OVERSEEING THE TOOLS TO DETECT ILLICIT CONTENT
The matter of overseeing the robots is equally crucial: who will oversee
the robots and verify their workings? Who will be able to certify that the
robots have the analytic finesse to distinguish between a work's illicit
use and its parody? Who will be able to validate that there will be no
abuse, no excess, no abusive interpretation of copyright?
In light of how this type of robots work for video platforms (YouTube),
it's already proven that they make many mistakes.
Among these mistakes, for example, we have already seen that rights
holders who fingerprint works may themselves re-appropriate others' works,
depriving them ofthe right to publish their work freely.
IN LIGHT OF THESE MANY DISQUIETING POINTS, WE RECOMMEND TO REFUSE
AUTOMATING THE PROCESS OF DETECTING PROTECTED WORKS ON CONTENT PLATFORMS,
ON PAIN OF RENDERING THE LEGAL ENVIRONMENT FOR PUBLISHING ON THE INTERNET
CONSIDERABLY MORE DIFFICULT, AND VASTLY EXPANDING DAMAGE TO FUNDAMENTAL
ARTICLE 13 OF COPYRIGHT DIRECTIVE : A THREAT AGAINST CREATION
CENSORSHIP UNABLE TO IDENTIFY LEGITIMATE EXCEPTIONS TO COPYRIGHT
Automatic censorship tools are by nature incapable of determining whether a
work's re-use is a mere unchanged copy or a satire, a criticism or a remix
(among other legitimate legal possibilities to re-use an extract of a
protected work). This type of measure nullifies and seriously endangers all
creative culture based on the usage of other works to nourish creation.
However, transformatory culture is deeply rooted in new uses and services
on which this article touches. To damage it indiscriminately in the way
article 13 requests actually constitutes endangering a very important part
of current audio and video creation.
This kind of creation which transforms or uses pieces of other works is
apart of the global cultural ecosystem which can't be suppressed without
consequences. For example, many video creators play an important role in
popularizing science and disseminating learning. Hundreds of thousands view
these publications, participating in vibrant cultural and educational
creation, especially the young audience which informs itself and cultivates
its knowledge on its own through YouTube and other platforms rather than by
PREDICTABLE CONFLICTS AMONG RIGHTS HOLDERS, A NEGATION OF THE AMATEUR
Furthermore, this disposition [Article 13] could have harmful repercussions
for works shared under free licence or which have entered into the public
domain. The experience of YouTube's robotic detection of protected work has
led to many conflicts between rights holders, with important litigation at
stake, and as a side effect has also led to modifying the conditions of
creation, since creators can't be guaranteed control over how their works
are distributed. It will be quite impossible, for creator, to manage their
promotion based on release of content. How will the robotic detection make
the difference between an "illegal" release and a promotionnal release of
With respect to the very principle of these tools, they flagrantly neglect
the status of amateur creators, who can only be acknowledged and protected
when registered with a rights management company responsible for supplying
the fingerprints of works to "protect" on sharing platforms. This
contradicts the principle of copyright, which protects each creator
independently of his professional oramateur status.
The draft directive offers no guarantee at all to ensure the greatest
possible reduction of censorship errors if it imposes no duty of carefor
results or methods. Nor does it take into account either the territoriality
of the law or national differences in enforcing copyright, thus putting
creators and users in a situation of permanent legal uncertainty.
This disposition, supposedly protecting creators, is actually a way to
restrict the capacities of creation and distribution which brings no
advantage to creators themselves. Furthermore, it risks creating an outlaw
culture which will then migrate to private or hidden platforms, since the
targeted practices won't disappear (they are already in massive use) but
only disappear from the visible face of the Internet, thus discouraging new
generations of creators. To give an example of how this works out, we need
only look at the result of Hadopi in France. When the law was passed in
2008 it was supposed to solved the problem of illegal sharing, but by 2015
it applied to only 9% of music downloads.
TO ADRESS NEW CULTURAL PRACTICES, IT WOULD BE BETTER TO INCLUDE INTO THE
DIRECTIVE THE PROPOSALS MADE BY IMCO AND CULT RAPPORTEURS:
* to create an extended "quotation exception" for audiovisualworks (CULT)
* and an exception for transformative works (IMCO).
It would be a significant progress to adapt copyright to new kind of uses.
ARTICLE 13 CONFLICTS WITH CONTENT HOSTERS STATUS AND DOESN'T SOLVE THE
In demanding that platforms deploy tools to detect illicit content
automatically, this article severely damages basic legal principles. But
beyond that, it poses many problems of compatibility with the electronic
commerce directive of 2000, which regulates the greatest part of
responsibilities among Internet actors, and endangers much existing
equilibrium without ever solving the problem of the value gap.
The electronic commerce directive of 2000 imposes no requirement for
preemptive surveillance of content for providers of shared online content.
It is inconceivable to reconcile a general requirement to install tools to
detect illegal content with this total absence of apriori responsibility
for content hosters, which was originally enacted to permit the development
of new services. For the last 15 years it's this balance which has legally
protected content hosters. No future corrections to this law can be made
only through a directive on copyright and without prior global
A METHOD WHICH FAILS TO RESOLVE THE PROBLEM OF VALUE GAP
The problem of value gap isn't resolved by removing content, because that
leads to no remuneration for the creator. Even worse, creators are deprived
of the visibility of presenting their works on the Internet, even
illegally. The ability to be recompensed disappears under suppression, and
controlling illicit content can play no role in redistribution. Thus it
can't meet its stated objective.
The Internet has become a very significant advertising resource. We would
like to support economic models other than advertising revenue, but it can
at least serve as a basis for regulating the problem of transferring value
more effectively than suppressing content. One can imagine more
comprehensive fiscal measures: European fiscal harmony, measures for
extra-european companies, a change in the level of advertising revenue or
general revenue of the platforms, etc.
The matter of the income differential between platforms and creators can be
settled only by facing the problems of apportionment, while genuinely
accepting new ways of sharing by the rights-holders.
ECONOMIC DISPARITIES AMONG PLATFORMS
The general obligation to deploy tools for automatic detection of illegal
content will generate a strong disparity among platforms: both the
development and the purchase of this kind of solution are extremely
expensive. The few companies currently able to develop reliable tools for
detecting illegal content are themselves actors in the digital content
market, and will get the upper hand and make the smaller actors highly
dependent on them, to buy or rent the use of their tools.
The probable growth of litigation due to the inevitable errors of the tools
will also bring additional costs. It is the existing large platforms which,
for many non-Europeans, will therefore be able maintain acceptable quality
of service and to be in good standing with the automatic detection of
illegal content, while the smaller entities or the newcomers will have to
undertake a much higher cost, even a totally prohibitive one.
PARADOXICALLY, THIS MEASURE WILL PROBABLY FAVOR THE GAFA MONOPOLY AND KILL
THE EMERGENCE OF EUROPEAN ACTORS BY DISPROPORTIONALLY INCREASING THE COST
OF ACCESS TO THE MARKET OR THE UNPREDICTABLE FINANCIAL RISKS INCREATING A
CONTENT-SHARING SERVICE. IT IS REALLY A MATTER OF CHOOSING WHICH ECONOMIC
MODEL WE WANT TO PROMOTE WITHIN THE EUROPEAN UNION.
LA QUADRATURE DU NET URGES MEPS OF THE COMMITTEES INVOLVED IN THE WORK ON
THE COPYRIGHT DIRECTIVE TO PAY ATTENTION OF THE VARIOUS PROBLEMS PRESENTED
IN THAT ANALYSIS, AND TO SIMPLY DELETE ARTICLE 13. PROPOSALS EMERGE FROM
COMMITTEES TO INTELLIGENTLY ADAPT COPYRIGHT TO THE DIGITAL ERA. IT WOULD BE
MORE USEFUL TO SUPPORT AND IMPROVE IT SO THAT THIS COPYRIGHT REFORM CAN BE
AMBITIOUS AND INVOLVE CREATORS AND USERS IN A NEW DYNAMIC BENEFICIAL FOR
ABOUT LA QUADRATURE DU NET
La Quadrature du Net is an advocacy group that defends the rights and
freedoms of citizens on the Internet. More specifically, it advocates for
the adaptation of French and European legislations to respect the founding
principles of the Internet, most notably the free circulation of knowledge.
>In addition to its advocacy work, the group also aims to foster a better
understanding of legislative processes among citizens. Through specific and
pertinent information and tools, La Quadrature du Net hopes to encourage
citizens' participation in the public debate on rights and freedoms in the
La Quadrature du Net is supported by French, European and international
NGOs including the Electronic Frontier Foundation, the Open Society
Institute and Privacy International.
List of supporting organisations:
PRESS CONTACT AND PRESS ROOM
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