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EU Nations Face Censorship Fears as New Copyright Rule Kicks In

June 7, 2019, 7:01 AM

Politicians from Poland, Germany, and elsewhere in the European Union are exploring ways to sidestep contentious provisions of a new copyright rule, in effect June 7, that critics fear will undercut internet freedom.

The EU directive is intended to get copyright policy in tune with the digital age. Directives function as packages of instructions that national governments must write into their laws. In this case, member states have two years—until June 7, 2021—to update their statutes.

Alphabet Inc.’s Google and Facebook Inc. may have to negotiate licenses for songs or video clips before publishing user uploads, under the new rules. Publishers, too, have new legal rights to help them retrieve payment from all types of online services.

The rules have sparked impassioned debate across the continent. On the plus side, they’re expected to help musicians, artists, and filmmakers, as well as publishers, whose work or content are often used online without permission or compensation.

But many see the specter of censorship, saying the rules could impinge on freedom of expression, among other issues. Some countries are fighting the rules.

Poland has taken one of the more dramatic steps, filing a complaint with the Court of Justice of the European Union (CJEU). In Germany, a politician is planning a campaign to force the European Commission to reassess the directive, and German lawmakers plan to open parliamentary discussions this summer.

In parts of central Europe, the directive has drawn grudging acceptance as a better-than-nothing option to control rapidly spreading digital technologies, according to intellectual property lawyers.

“Technologies got a little ahead of the law, and what is now being sought is a balance,” Tomas Dobrichovsky, a copyright law specialist with Prague-based Kriz and Partners, said. “But, of course, the devil can be and often is in the detail.”

‘Political Pressure’

Much of the concern centers on a requirement that content-sharing platforms, such as Google‘s YouTube, ensure that licensing agreements cover copyrighted material uploaded by users, including films and music videos. If not, the platforms must take steps to block or remove the infringing content, rather than just taking it down after being notified.

The requirement “threatens to shut down the ability of millions of people” to upload content to platforms, YouTube CEO Susan Wojcicki said in a blog post last year.

Opponents say the requirement could lead to filtering, and ultimately censoring, of uploaded content with algorithms or other tools.

Poland argues that the directive violates the Polish Constitution, which guarantees “everyone” the “freedom to express opinions, to acquire and to disseminate information,” and prohibits “preventive censorship of the means of social communication.” The CJEU hasn’t yet scheduled a hearing on Poland’s formal complaint, court spokesman Ireneusz Kolowca said.

Patrick Breyer, a newly elected European Parliament member from Pirate Party Germany, has plans with internet activists to draw 1 million petition signatures to force a meeting with the European Commission, the EU’s executive arm.

“It will certainly create political pressure,” said Breyer, whose party’s anti-directive protests drew thousands in Germany. “Most of all, the idea is to create public debate.”

Italy has taken no steps to update its copyright laws because of political uncertainty over the shape of the future government, Gualtiero Dragotti, a partner with DLA Piper in Milan and president of the International Association for the Protection of Intellectual Property in Italy, said. Even politically influential internet platforms like Facebook haven’t said much yet, he said.

“They have adopted a wait-and-see approach,” Dragotti said. “They want to remain covered and not exposed.”

In Portugal, leftist coalition partners and groups such as the Portuguese Association of Librarians, Archivists and Documentalists have criticized the ruling Socialists’ support for the directive, saying the measure will stifle innovation, restrict basic rights, and be impossible to implement.

‘Some Flexibility’

Some copyright lawyers say concerns are overblown, and that the copyright directive is a necessary step to protect artists, musicians, and writers from increasingly uncontrollable infringement online.

“In reality, rights’ owners seem helpless against the vast number of copyright infringements on the internet in the evolving digital age, and existing copyright law does not help to properly enforce the rights owners’ legal position,” said Tobias Bier, a partner at BBS Rechtsanwälte, who specializes in copyright and trademark law.

“What this directive is trying to enforce is the liability of the platform companies and integrate a system that once infringing content is identified, it doesn’t get rebroadcast,” Bier said.

Copyright collectives could get flat licensing fees for creators, largely allowing countries to avoid upload filters, Marcus Nothhelfer, a partner and copyright lawyer at ARQIS in Munich, said.

“‘Upload filters’ is not contained in the directive,” he said. “There should be some flexibility in how member states implement this.”

— With reporting by Janna Brancolini in Milan, Stephen Gardner in Brussels, Brett King in Madrid, Jan Stojaspal in Prague, and Bogdan Turek in Warsaw

To contact the reporter on this story: Chelsey Dulaney in Berlin at correspondents@bloomberglaw.com

To contact the editors on this story: Melissa B. Robinson at mrobinson@bloomberglaw.com; Keith Perine at kperine@bloomberglaw.com