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European Commission backs takedown-and-stay-down for combating piracy online

By | Published on Friday 29 September 2017

European Commission

The European Commission yesterday published new guidelines for how internet companies should deal with illegal content that is uploaded to their networks, in a bid to encourage net firms to be more consistent and proactive in blocking illegal files, which includes content that incites violence or terrorism, as well as copyright infringing material.

On the copyright front, internet firms whose users upload infringing content are usually protected from liability for that infringement by those much talked about safe harbours. However, to qualify for safe harbour protection, an internet company must have a takedown system via which copyright owners can request infringing material be removed.

Of course, the music industry’s big beef with the copyright safe harbour is when user-upload services like YouTube claim they are also protected from liability for copyright infringement under the system. Though music companies also reckon that search engines, social networks and digital lockers – who they concede should have safe harbour protection – should nevertheless have better takedown procedures.

In the UK, a voluntary agreement was reached between the copyright owners and the big search engines last year on how to improve the takedown process, and the new European guidelines make similar proposals for how net firms could and should be better at removing illegal content, whether it be hate speech or copyright infringing files.

A key theme of the music industry’s lobbying on this issue has been the push for not just takedown systems, but takedown-and-stay-down systems, whereby once an infringing file has been removed once, it is automatically blocked if people attempt to upload it again. Somewhat ironically, in its Content ID system, big bad YouTube has done more work in that domain than most.

In its new guidelines, the European Commission supports systems of this kind, encouraging web companies to “invest in automatic detection technologies” that “prevent the re-appearance of illegal content online”. The EC also advocates web firms forming special relationships with “trusted flaggers” who have “specific expertise in identifying illegal content”, while also taking “measures against repeat infringers”.

The guidelines – many details of which were actually leaked earlier this month – are just that for now, guidelines on how internet companies should be evolving their systems for dealing with illegal content. But the Commission says that it will now “monitor progress and assess whether additional measures are needed”, which could include new legislation.

Copyright owners will be pleased that that the European Commission has including piracy in its review of how the net sector deals with illegal content, and will now watch what progress – if any – is made. Meanwhile within the tech sector, there are mixed opinions.

The Computer And Communications Industry Association – repping many web giants – said that it “has advocated for a long time for the introduction of well-thought-out notice and action guidelines, and [these guidelines are] a welcome initiative for a more aligned approach on the removal of infringing content across the European Union”.

Others say that – while the EC does talk about the need to balance the speedy takedown of illegal content with ensuring free speech rights are protected – the guidelines don’t do enough to protect freedom of expression online.

Lobbing group European Digital Rights told reporters: “[This] document puts virtually all its focus on internet companies monitoring online communications in order to remove content that they decide might be illegal. It presents few safeguards for free speech and little concern for dealing with content that is actually criminal”.

Launching the guidelines, the European Commissioner for the Digital Single Market, Andrus Ansip, stated: “We are providing a sound EU answer to the challenge of illegal content online. We make it easier for platforms to fulfil their duty, in close cooperation with law enforcement and civil society. Our guidance includes safeguards to avoid over-removal and ensure transparency and the protection of fundamental rights such as freedom of speech”.



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