Could Article 13's Upload Filters Be Thrown Out Because Of The EU-Canada Trade Deal CETA?

from the it-ain't-over-yet dept

Now that the EU's awful Copyright Directive has been passed, it would be easy to give up, and assume that nothing more can be done. That's far from the case. Under EU law, this directive must now be implemented through national legislation in all of the EU Member States. Although that process is compulsory, there is still plenty of scope for interpreting what exactly the Copyright Directive's text means. As a result, the fight against the worst elements -- the upload filter and ancillary copyright for news -- can now begin at a national level.

Moreover, there are other ways in which these aspects of the Copyright Directive can be challenged once they are law. A number of people have pointed out that Article 13 (now renumbered as Article 17) effectively imposes an obligation on sites to carry out "general monitoring". That's something that the Court of Justice of the European Union (CJEU), the highest court of the region, has already thrown out because it runs counter to Article 15 of the EU's e-Commerce Directive. Once upload filters are implemented in national law, they can be challenged in the local courts. Since a question that affects the whole of the EU is involved -- are upload filters a form of general monitoring? -- the national court would almost certainly make a reference to the CJEU for clarification. The hope has to be that the whole approach would be ruled as inadmissible, as has already happened twice with other cases of general monitoring.

That's one obvious avenue to pursue. But as the Pirate Party MEP Julia Reda mentioned in a recent Techdirt podcast, there's another route worth investigating. Article 20.11 of the Comprehensive Economic and Trade Agreement (CETA) between the EU and Canada reads as follows:

Subject to the other paragraphs of this Article, each Party shall provide limitations or exceptions in its law regarding the liability of service providers, when acting as intermediaries, for infringements of copyright or related rights that take place on or through communication networks, in relation to the provision or use of their services.

Moreover:

The eligibility for the limitations or exceptions referred to in this Article may not be conditioned on the service provider monitoring its service, or affirmatively seeking facts indicating infringing activity.

So the question is whether that excludes the kind of monitoring activity that the EU Copyright Directive will require. Obviously, the complex interaction of CETA and the new directive is something that will need consideration in the appropriate legal forum, whatever that might be. But at the very least, the idea that CETA could nullify Article 13/17 is an intriguing possibility.

In the past, the copyright industry has used commitments in existing trade deals to block proposals to create much-needed rights and exceptions for members of the public. It would be poetic justice if for once a trade deal blocked a key part of a new law that Big Copyright wanted so desperately.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: article 13, canada, ceta, copyright, eu, eu copyright directive, intermediary liability, julia reda, trade agreements


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  • icon
    hij (profile), 17 Apr 2019 @ 4:57am

    This Sucks

    I really do not like how international trade deals can be used to supersede local laws. Even though this time it happens to do something I agree with, the general idea that these trade agreements can override normal democratic processes is highly problematic.

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 17 Apr 2019 @ 5:12am

      Re: This Sucks

      Too true. It would be better if the EUCJ weighed in on this issue.

      If it does then in effect the EUCJ would be declaring most practically enforceable effects of article 13 (17) illegal.

      It wouldn't be the first time, if so. The EUCJ struck down the data retention directive as a whole with bolts of thunder from on high.

      If that's the case though, that will be the second time in a short time that the EU commission, tasked with writing law, proving that they are not only persistently unable to write laws which conform to the EU constitutional charter but inept enough not to understand that a law which had to be pushed through using shady means and is in violation of the EU charter WILL be removed by the court.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Apr 2019 @ 6:47am

      Re: This Sucks

      "I really do not like how international trade deals can be used to supersede local laws. "

      If the EU is anything like the US, they can simply ignore the law ... the DA refuses to prosecute - no biggie, right?

      reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 18 Apr 2019 @ 1:01am

        Re: Re: This Sucks

        The EU isn't much like the US in that regard, but even if it were, the trade deal would still overrule whatever local or EU-wide legislation existed. Either the EU/member nation would have to change the law, or the EU would have to declare withdrawal from the treaty in question.

        reply to this | link to this | view in chronology ]

  • identicon
    nagging nilly, 17 Apr 2019 @ 5:18am

    willfully un compliant actionable offences

    that they changed the article 15 to article 17 on purpose to confuse elected members about what they were voting for should carry the ban hammer straight away when found out. That it wasnt is a due process violation and should exempt the new legislation from becoming law.
    EU Parliament should have a process to determine this and cancel this law anyway. That they either don't or no-one has moved the appropriate motion is staggering beyond belief and calls for members to be removed from elected office should be happening now by large members of the EU.

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 18 Apr 2019 @ 1:07am

      Re: willfully un compliant actionable offences

      "that they changed the article 15 to article 17 on purpose to confuse elected members about what they were voting for should carry the ban hammer straight away when found out. That it wasnt is a due process violation and should exempt the new legislation from becoming law."

      It should...however, such is not the case. Neither for the EU nor for the US. Anyone remembering the tours around the DMCA should recall the shenanigans where between introducing the legislation and asking congress to approve of it, a number of "or" were changed to read "and", changing the entire meaning of the legislation for the worse. Some such changes were discovered and changed back. Much of them were not.

      This happens all the damn time, whenever a stakeholder with a vested interest has succeeded in obtaining the services of the bureaucracy in charge of administration. Can you say "Regulatory Capture"?

      And the politicians in the position of voting should know this and demand the document they were voting for was checked to be identical to the one they read and approved.

      reply to this | link to this | view in chronology ]

  • identicon
    SirWired, 17 Apr 2019 @ 6:07am

    Probably not gonna help much

    I'm going to guess that this is only going to help Canadian companies, and perhaps not even then if it would require the Canadian government to complain to the EU about it. I'm pretty sure courts give great deference to the government of their own country when interpreting their own trade agreements.

    I don't see how a targeted US company (or a European one, for conduct that isn't alleged to be connected to Canada, for that matter) would have a right of action in regards to the trade agreement.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Apr 2019 @ 7:15am

    they need throwing out, period! i still reckon the whole reason they're there is because of the entertainment industries, despite them supposedly going against them being implemented!

    reply to this | link to this | view in chronology ]

  • icon
    Mason Wheeler (profile), 17 Apr 2019 @ 7:56am

    Now that the EU's awful Copyright Directive has been passed, it would be easy to give up, and assume that nothing more can be done.

    Who's advocating for that? What a lot of people--myself included, but I'm hardly alone on this!--are saying is that it's time for the Internet to say "enough is enough." Geofence the EU, shut down their ability to interact with the sites they're seeking to destroy here, shut them down en masse and make it absolutely clear that if they don't like the way the Internet works, their only alternative is to not use it at all. Make it clear that they need us more than we need them.

    Doesn't matter what the press says. Doesn't matter what the politicians or the mobs say. Doesn't matter if the whole country decides that something wrong is something right.

    This nation was founded on one principle above all else: The requirement that we stand up for what we believe, no matter the odds or the consequences. When the mob and the press and the whole world tell you to move, your job is to plant yourself like a tree beside the river of truth, and tell the whole world -- "No, YOU move.”

    -- Captain America

    reply to this | link to this | view in chronology ]

    • icon
      Thad (profile), 17 Apr 2019 @ 10:34am

      Re:

      ...leaving aside that quoting a character who was created for the explicit purpose of advocating for the United States to intervene in Europe is kind of a weird choice for advocating for the United States to pull out of Europe, I discussed some of the problems with the "let's all just geoblock Europe" line yesterday. Chiefly, it would destabilize the world economy, and punish and disadvantage the many Europeans who are opposed to the Copyright Directive (some of whom recently marched in the streets to protest it, which I note is more than any of us talking about it in the comments section have done about it).

      Isolationism is the wrong way to fight this. Indeed, as the article notes, international cooperation may be far more effective.

      reply to this | link to this | view in chronology ]

      • icon
        Mason Wheeler (profile), 17 Apr 2019 @ 11:24am

        Re: Re:

        I discussed some of the problems with the "let's all just geoblock Europe" line yesterday.

        Yes you did. And everyone (including at least one self-identified EU citizen) pointed out how you were wrong and the guy you were responding to was right.

        I should also point out that it's ridiculously ironic of you to use the term "short-sighted" to describe a policy that would cause some short-term pain that would be virtually guaranteed to quickly do away with the problem. Being averse to that pain may as well be the literal definition of "short-sighted!"

        reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 18 Apr 2019 @ 1:23am

        Re: Re:

        "I discussed some of the problems with the "let's all just geoblock Europe" line yesterday. Chiefly, it would destabilize the world economy, and punish and disadvantage the many Europeans who are opposed to the Copyright Directive..."

        And as a European I keep maintaining that what we face is a choice. Either we keep mitigating the increasingly deranged legislation emanating from the EU - or we let the train wreck pan out once.

        For those europeans who protested the copyright directive? They'll be on VPN so they can all say "Fuck you, got mine".
        Those independent artists? The ones who knew enough to protest article 13? Same as the above. They'll be cutting the EU out of the entire equation - but to large extent they can also say 2Fuck you, got mine".

        So who will this hurt? Everyone who did not object to article 13 will end up feeling the pain. A great many entities with vested interest will be taking it straight up the rear. Absolutely every idiot who thought this would give local platforms advantage versus Google will end up crippled.
        The EU digital economy will nosedive and end up handing the whole market over to Google and Alibaba.

        "Isolationism is the wrong way to fight this."

        Isolationism is what articles 11 and 13(17) demand in practice, so it's the core problem, not the proposed solution - for starters.
        If that problem is mitigated to the point where it does not work we still have shit legislation on the tablets along with whatever disadvantages were not mitigated away by loopholes. And we have legislators busily trying to plug said loopholes in the belief that when they finally get what they ask for in practice it will all work out.

        We either sit on these barricades for the next 50 years in a tug-of-war centered around chipping away or adding to a fundamentally failed paradigm...or we finally have our body politic absorb the necessary lesson which may finally force them to acknowledge that we are no longer living in the 18th century.

        We are not facing good options here. We face a miserable conclusion or misery without conclusion. Better the collapse we can recover from rather than a slow progressive abolition of any hope the next few generations of europeans have in becoming a functional part of the global economy.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 18 Apr 2019 @ 4:09am

          Re: Re: Re:

          We are not facing good options here. We face a miserable conclusion or misery without conclusion. Better the collapse we can recover from rather than a slow progressive abolition of any hope the next few generations of europeans have in becoming a functional part of the global economy.

          Exactly. This is the thing that Thad, his brain damaged from immersion in SJW culture, does not understand: there are times when it's necessary to accept some short-term pain and discomfort in order to achieve a long-term desirable outcome.

          At this point, it's like a vaccine. No one likes getting one; being stuck with a needle hurts, and it uses up valuable time that you could be doing any number of other things with. But every sane person recognizes that they're essential to modern life, to the point where those who refuse to do so are rightfully treated as pariahs and public health hazards.

          Someone elsewhere in this some other branch of same conversation used the notion of Article 11/13 liability as an infectious disease. I like that idea; it's a very fitting metaphor. Don't be a digital anti-vaxxer, Thad.

          reply to this | link to this | view in chronology ]

          • icon
            Scary Devil Monastery (profile), 18 Apr 2019 @ 4:32am

            Re: Re: Re: Re:

            I'll take exception to the slings and arrows hurled at Thad. I'll take him and his honest commentary any day of the week.

            I agree with everything else you said here.

            The EU - and much of the rest of the world, still has no clue how to treat the prevalence of a global communications network which for all intents and purposes brings the concept of Freedom Of Speech from theory into actual practice. Last time we had a revolution that big was when the printing press was invented.
            And today, as back then, incumbent powers both private and governmental, get their knickers in a twist and desperately try to roll back progress.

            Which will not work, but their attempts are harmful and do nothing other than escalate the social tension between those willing to embrace the future and those intent on staying with the paradigm of yesteryear.

            The EU will not stop trying to reverse the last twenty years of progress. The US will not stop trying to roll communications society back to 1960 or so. The US DMCA did not achieve the desired result and thus heavy lobbying is made to remove the last safeguards ensuring messenger immunity remains intact.

            Article 11 and 13(17) will not accomplish their desired result either. And if we loophole our way around them into a paradigm which is barely workable, the EU commission will just seek to plug the hole with new legislation - and back to the barricades we'll have to go, continually trying to keep shit decisions from overwhelming us.

            This is much like having an abusive father in a home. You know taking the father away will cause financial distress to the family and cause interfamily strife. But at some point there is no way around the fact that the older siblings having to work hard to keep their younger siblings from being slapped around is not a sustainable solution and will not get the father to stop his abuse.

            That's where we're at right now. We fear the consequences of letting the authorities beating pass unimpeded and work ever harder to soften the blows. but it won't work. The body politic will not change its ways like this. All the politicians will notice is that no immediate harm came from their decisions so listening to the lobby obviously wasn't as bad as the alarmists noted.

            Since the damn fools have decided to adopt article 11 and 13(17) the path is clear. Those who can circumvent and adapt will do so. The majority of EU online culture creators and platforms won't be able to. Some parts of the economy will crash. And hopefully the next batch of EU leaders will discover that the bad decisions taken this year has consequences europe as a whole can't afford.

            The decision to keep mitigating harm in the hopes that the body politic will change its ways assumes that the leadership consists of actual leaders.
            what we have in the EU commission however, is an unruly batch of immoral and vainglorious shitweasels eager to reap the benefits of power.

            reply to this | link to this | view in chronology ]

            • icon
              Wendy Cockcroft (profile), 18 Apr 2019 @ 5:19am

              Re: Re: Re: Re: Re:

              As someone who uses a VPN to get around restrictions I concur. The others will either learn how to use them or pull the law down.

              Thad, I usually agree with you and vote your comments insightful. I don't think it's right to disrespect you so today I most respectfully disagree with you on this issue.

              A short sharp shock is required to show the fools the error of their ways and to mobilise the public into holding their representatives accountable. For the most part, they're ignorant of how things work and aren't interested in learning more about it. If nothing else, this will be a remedy for that. Cut it off and let the screaming begin.

              reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Apr 2019 @ 11:40am

      Re:

      You would remove the major tools, twitter and Facebook, through which people would organize action, to encourage them to take actions to make the politicians think again. Great plan their master mind.

      reply to this | link to this | view in chronology ]

      • icon
        Mason Wheeler (profile), 17 Apr 2019 @ 12:16pm

        Re: Re:

        First off, people don't need to be "organized" to take the action of voting someone out. I'm not advocating setting up protest marches or anything like that; I'm advocating terminating the political careers of the people who betrayed their constituents.

        And second, people organized plenty before Facebook and Twitter existed. Unless you're going to argue that they have literally made people stupider, causing them to become incapable of doing things that people used to be able to do just fine before they were around--and if so, do you really want them to continue to exist?--what's the point of this line of reasoning?

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 17 Apr 2019 @ 4:44pm

          Re: Re: Re:

          I know how the world worked before social media, and that world give advantage to organized politics. A 'movement' like occupy, and the likes of the pirate party are only really possible when social media exists. Without the open communications of social media, you end up with political parties, and politicians telling citizens what they are going to do, rather than listening to citizens.

          reply to this | link to this | view in chronology ]

    • icon
      Wyrm (profile), 18 Apr 2019 @ 8:54am

      Re:

      I love how that quote can be used to justify anything.

      This nation was founded on one principle above all else: The requirement that we stand up for what we believe, no matter the odds or the consequences.

      I see what the walking US metaphor means it, that you shouldn't care about people getting violent to shut you up and all, but you see...

      • Copyright holders believe they should own works of art forever, with unlimited control over what can be done with them.
      • Extreme conservative politicians believe they should be allowed to regulate anything they want, down to your sexuality and reproduction.
      • Second amendment fanatics believe anyone can own and carry a gun, any gun, anywhere.
      • Often overlapping with the ones above, advocates of "stand your ground" or similar policies believe they're allowed to shoot anyone when they are afraid or uneasy in their presence.

      And the list goes on.
      My conclusion is: beware of anyone telling you not to care about consequences.

      reply to this | link to this | view in chronology ]

  • identicon
    Chris Brand, 17 Apr 2019 @ 9:25am

    This only helps the "content industry"

    They don't really want upload filters anyway, they want license deals, on terms they can dictate because the alternative is to not run the site at all.

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 18 Apr 2019 @ 1:31am

      Re: This only helps the "content industry"

      *"They don't really want upload filters anyway, they want license deals, on terms they can dictate because the alternative is to not run the site at all."'

      They probably know themselves that's not feasible. The cross-linked licensing requirements would have half of europe turning into IP lawyers and the other half into people retaining IP lawyers. Maybe at that point sufficiently little media would actually be created for a few million lawyers to handle.
      /only halfway sarcastic.

      What they really want is, i believe, the levy. Collection societies accountable to no one, empowered to grab a large chunk of revenue in the form of a non-government tax on internet access, processors, integrated and standalone memory chips, etc.

      A wet dream of sitting back and letting the money roll in as long as an unspecified proportion of said money is later on doled out to random artists signed to the stable of the major labels.

      money for nothing and the chicks for free. The end goal of the copyright cult and it's spiritual predecessors.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Apr 2019 @ 9:39am

    There will still need to be content filters on any website that shows video, or audio content, even if youtube or website makes deals with nbc,fox,sony,disney ,all the film companys
    all the record companys,
    since there are 100,s of ip holders out there ,
    for instance each country in the eu has its tv stations and public service tv
    makers like the bbc which make their own programs
    .
    Would youtube be able to afford to license all content from all these media companys .
    Would it even to possible to do this .

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Apr 2019 @ 10:16am

      Re:

      Bob creates a completely original video and includes original music which he then posts on YouTube. Frank then includes clips of Bob's video in his own which he then posts to YouTube.

      Must YouTube then go to Bob to get a license so that Frank's video can stay up?

      reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 18 Apr 2019 @ 1:33am

        Re: Re:

        "Must YouTube then go to Bob to get a license so that Frank's video can stay up?"

        Yes. and once he's done that he'll still have it taken down in one of the random auto-generated takedown notices which an ever increasingly paranoid youtube has to accept or face possible lawsuits from any of the thousand copyright trolls heavily incentivized to do their absolute worst.

        reply to this | link to this | view in chronology ]

  • identicon
    stine, 17 Apr 2019 @ 10:49am

    ceta

    Some more info, like who authored that section, would be very informative. Was it Canada or The EU?

    reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 17 Apr 2019 @ 12:05pm

    Anyone get the idea..

    That enforcement is a CHOICE..
    And for some reason I can see 1 news organization, NOT forcing enforcement of Links to THEIR own site??

    Then another Agency will see this, and NOT enforce...and another..

    Or is this going to be a 3rd party Enforcement, and the Internet cant CHECK to see IF' they are in the wrong..

    The RIAA/MPAA, can say/do anything, because 90% of it, DOES NOT require Proof that the data was released FREELY.. And this IS/HAS caused allot of problems..
    AS well as what is called PRIVATE collections where Media has been BOUGHT, by private groups/persons.. AND THAT has no Public domain demands. Unless its digitally copied by the owner and sent out, its considered Theft..

    reply to this | link to this | view in chronology ]

    • icon
      Oninoshiko (profile), 17 Apr 2019 @ 1:28pm

      Re: Anyone get the idea..

      I doubt enforcement as a choice is an option, it going to be up to individual nations to decide if a contract for a license fee different from the statutory fee is permissible.

      Nations that permit licenses for non-statutory fees, google's just going to send a contract to every news agency, they will all sign it, and google will be the only news aggregater.

      Nations that do not permit licences for amounts other then the statutory amount will just have all their media de-indexed by google. Google has done this before when Spain tried this.

      reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 18 Apr 2019 @ 4:38am

        Re: Re: Anyone get the idea..

        "I doubt enforcement as a choice is an option, it going to be up to individual nations to decide if a contract for a license fee different from the statutory fee is permissible."

        That all depends on whether the local branch of the IFPI et al. decide to agree.

        The nations can open the legal field for ubiquitous licensing but it'll still be up to the most avaricious stakeholders available locally to set the minimum requirements. In most cases I'm guessing it'll be Spain all over because there is no way the licensing cost will allow the operation of any intermediate platform.

        reply to this | link to this | view in chronology ]

  • identicon
    anothg86, 17 Apr 2019 @ 4:10pm

    Poetic justice indeed.... and this comes just as the Trump administration is under scrutiny!

    Trump and the EU, both as bad as one another!

    These upload filters... it doesn't help when creators actually encourage people to circulate older works that can't be bought (especially as people are buying new ones!)

    I wonder if Article 13 would kill off MacBed (look that site up on Google... it's a download site for Mac OS X) in Europe, a favourite with people learning Photoshop!

    reply to this | link to this | view in chronology ]


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