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Now the digital rights groups write to the EU about safe harbour reform 

By | Published on Thursday 19 October 2017

European Commission

Earlier this month the copyright industries sent an open letter to Axel Voss – the MEP leading on the draft European Copyright Directive in the European Parliament – in which they called for the safe harbour clause in said directive to be secured and strengthened. So, no surprise really that earlier this week another letter followed from a consortium of organisations who lobby on so called ‘digital rights’ calling for the very same safe harbour clause to be deleted.

As much previously reported, the music industry hopes that article thirteen of the Copyright Directive will put new obligations on user-upload platforms like YouTube, which currently rely on the so called safe harbour to avoid liability when their users upload unlicensed content. The music community argues that YouTube et al – though mainly YouTube – are exploiting the safe harbour to secure much better licensing terms from record labels and music publishers, giving them an unfair advantage in the streaming music market.

The music community – and increasingly the wider copyright industries – have been lobbying hard in Europe as the draft Copyright Directive has worked its way through the European Parliament and EU Council. They want to ensure article thirteen remains. And also that it is written in such a way that there aren’t any ambiguities or get-outs that would allow YouTube to claim any new liabilities under European law didn’t apply to it or that – via its existing licensing deals and Content ID system – it is already compliant.

However, there are plenty of people lobbying on the other side of this debate too, arguing that article thirteen – beyond any new liabilities it may or may not put onto YouTube – could hinder the way people share, store and consume content on the internet.

European Digital Rights, which says it seeks to “defend rights and freedoms in the digital environment”, is a leading voice on that side of the debate. It brings together various associations from around Europe, including the UK’s Open Rights Group, and the letter it helped organise this week – to Voss and a number of other EU leaders – was also signed by a flurry of other organisations, including the Civil Liberties Union For Europe

The letter argues that “article thirteen … includes obligations on internet companies that would be impossible to respect without the imposition of excessive restrictions on citizens’ fundamental rights”.

The letter reckons that article thirteen could “provoke such legal uncertainty that online services will have no other option than to monitor, filter and block EU citizens’ communications if they are to have any chance of staying in business”. This, they reckon, contradicts existing European law, including the free speech elements of the EU’s Charter Of Fundamental Rights. Which could result in the legal problems for the article down the line, even if it is passed by both the European Parliament and EU Council.

Says the open letter: “If EU legislation conflicts with the Charter Of Fundamental Rights, national constitutional courts are likely to be tempted to disapply it and we can expect such a rule to be annulled by the [European] Court Of Justice. This is what happened with the Data Retention Directive, when EU legislators ignored compatibility problems with the Charter Of Fundamental Rights. In 2014, the Court Of Justice declared the Data Retention Directive invalid because it violated the Charter”.

With all that in mind, the letter concludes: “Taking into consideration these arguments, we ask the relevant policy-makers to delete article thirteen”.

Both sides in the debate have friends in Brussels, but it remains to be seen whose friends deliver the goods as Parliament and Council consider the next draft of the directive.

Though the letter from European Digital Rights implies that, even in the copyright owners do win this round and get a strong safe harbour clause in the directive, there could be plenty more legal wrangling to be done later if and when the tech firms or consumer rights groups question the legality of the measure in the courts.



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