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.

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


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  1. 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.


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