GENEVA (11 March 2019) – UN human rights experts David Kaye has urged the European Union to bring its Copyright Directive into line with international standards on freedom of expression.
“Europe has a responsibility to modernise its copyright law to address the challenges of the digital age,” said the UN’s Special Rapporteur on freedom of expression ahead of a critical vote on the Directive. “But this should not be done at the expense of the freedom of expression that Europeans enjoy today.”
“Article 13 of the proposed Directive appears destined to drive internet platforms toward monitoring and restriction of user-generated content even at the point of upload. Such sweeping pressure for pre-publication filtering is neither a necessary nor proportionate response to copyright infringement online.”
The latest version of the proposed Directive, which would include an exemption for relatively new content-sharing providers that have limited penetration in European markets, would not meet the concerns raised by earlier drafts, Kaye added.
“Most platforms would not qualify for the exemption and would face legal pressure to install and maintain expensive content filtering infrastructure to comply with the proposed Directive,” the expert said. “In the long run, this would imperil the future of information diversity and media pluralism in Europe, since only the biggest players will be able to afford these technologies.”
In the absence of specific requirements on platforms and Member States to defend freedom of expression, it is far from clear how either will comply with the Directive’s proposed safeguards, such as the requirement that “quotation, criticism, review” and the “use [of copyrighted works] for the purpose of caricature, parody or pastiche” be protected, the Special Rapporteur said.
“Even the most experienced lawyers struggle to distinguish violations of copyright rules from exceptions to these rules, which vary across Member States,” Kaye added. “The lack of clear and precise language in the Directive would create even more legal uncertainty.”
“Misplaced confidence in filtering technologies to make nuanced distinctions between copyright violations and legitimate uses of protected material would escalate the risk of error and censorship. Who would bear the brunt of this practice? Typically it would be creators and artists, who lack the resources to litigate such claims.”
The European Parliament should work to resolve these issues in collaboration with digital rights groups, artists, journalists and other representatives of civil society before bringing a vote on the Directive, Kaye added.
The European Parliament is scheduled to vote on the proposed Directive in the last week of March. The Special Rapporteur on freedom of expression addressed an earlier version of the proposed Directive in a communication to the EU in June 2018, which may be found here.