The European Commission published a briefing document last week that marked progress in its initiative to establish a legal framework for a “digital single market” for Europe. This briefing described a proposed directive with several provisions to streamline the use of digital content and promote copyright protection across the EU. The proposed directive itself was published back in September.
The most interesting provision in the proposal is one that would require user-uploaded content hosting services to use content recognition technologies to monitor for potential copyright or licensing violations… under certain conditions. This provision falls short of a blanket requirement for services to do copyright monitoring; the European Court of Justice (ECJ) held that this was forbidden under Article 15 of the EU E-Commerce Directive in cases such as Scarlet v. SABAM, a landmark 2011 Belgian case, in which the ECJ overturned a lower court requirement that the ISP Scarlet implement copyright filtering. At the same time, the provision also doesn’t call for mandatory graduated response systems like HADOPI in France.
In fact the language of the actual provision (see Article 13, pp. 29-30) is ambiguous and equivocal. It calls for service providers “that store and provide to the public access to large amounts of works … uploaded by their users” to “in cooperation with rightholders, take measures to ensure the functioning of agreements concluded with rightholders for the use of their works … or to prevent the availability on their services of works … 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.” It also calls for EU member states to “… facilitate, where appropriate, the cooperation between … 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.”
The EU legal structure requires member states to implement European Commission Directives in their national laws. Language such as “large amounts of works,” “appropriate and proportionate,” “nature of the services,” and “effective” (that old chestnut from U.S. anticircumvention law) give national governments acres — sorry, hectares — of wiggle room on how to implement this directive.
At the same time, this is far from the final directive. As the briefing document indicates, several steps and a vote remain before it becomes final; and various typical constituencies — consumer advocates, service providers, academics — have lodged objections to the copyright monitoring provision as overly onerous dampers on innovation. Some of these constituencies also claim that the provision still contravenes Article 15 of the EU E-Commerce Directive as well as the European Charter of Fundamental Rights.
It will be years until any sort of implementation in EU member states’ laws. Let’s just hope that if a monitoring provision does survive the various gauntlets of opposition, it’s straightforward and uniform enough for service providers to implement in a single way across Europe. No one benefits from yet another confusing mess like the European private copying levy system.