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.

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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 @ 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.


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