There have been multiple attempts to regulate EU copyrights and updating related rules in a manner consistent with current digital age. The whole issue became complicated also because of a change on the post of Digital Commissioner1 , from Günther Oettinger to Axel Voss, both having different opinions on the proposal of the directive regulating copyright. Nevertheless, after all these complications, the final Proposal2 of the Directive on copyright in the Digital Single Market was born and now a final voting is ahead.
As mentioned above, a huge discussion accompanied the whole process of creation of the Directive, which peaked last year with the Draft Report3 , suggesting certain changes, simplifications and explanations. The most discussed part of the whole (quite short - only 24 Articles long) Proposal is without any doubt Article 13, in wording as below:
Information society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users shall, in cooperation with rightholders, take measures to ensure the functioning of agreements concluded with rightholders for the use of their works or other subject-matter or to prevent the availability on their services of works or other subject-matter identified by rightholders through the cooperation with the service providers. Those measures, such as the use of effective content recognition technologies, shall be appropriate and proportionate. The service providers shall provide rightholders with adequate information on the functioning and the deployment of the measures, as well as, when relevant, adequate reporting on the recognition and use of the works and other subject-matter.
Opponents of the current wording argue, that it is going to have many devastating effects4 , forcing certain services, such as Facebook or YouTube to monitor activity and accordingly filter the content. Such filtration is not always going to be proportionate and will severely hinder the free speech. The threat could be to any content having any copyrighted music (even unintentionally) playing in background, also to open source applications or in the case of whistleblowers - some information shared by whistleblowers could be blocked.
These concerns have been partially addressed in the Draft Report mentioned above, which suggested the amended "lighter" wording of Article 13:
Information society service providers that are actively and directly involved in the making available to the public of user uploaded content and where this activity is not of a mere technical, automatic and passive nature shall take appropriate and proportionate measures to ensure the functioning of agreements concluded with rightholders for the use of their works.
However the justification provided in the Draft Report, that the liability regimes for providers already established in Directive 2000/31/EC5 (on certain legal aspects of information society services, in particular electronic commerce in the Internal Market) shall be used instead, is not definitely a good news for the protectors of free speech.
Both wordings could offer quite a wide possibilities for restrictions, monitoring of activity and filtering of content, justified by fulfilling the new Directive. It is therefore a subject of heated discussion amongst lawyer and lawmakers if the proposed Directive stays in the current wording and of course how will the respective national implementations look like. The final voting on the Proposal in the JURI Committee6 (i.e. committee of the European Parliament for Legal Affairs), which will greatly determine the final wording of the Proposal shall take place in April 20187 .