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.

Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

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


Reader Comments

Subscribe: RSS

View by: Thread


  1. 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.


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Special Affiliate Offer

Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Recent Stories
.

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it
Close

Email This

This feature is only available to registered users. Register or sign in to use it.