Copyright Holders Still Don't Support EU's Already Awful Upload Filter Proposal; Demand It Be Made Worse

As we discussed, over the weekend, France and Germany agreed to a deal to get the EU Copyright Directive moving forward again, specifically around Article 13. The problem was that the "deal" made Article 13 ridiculously bad. It removed all safe harbors, except for the tiniest of new internet platforms, and removed any requirement for copyright holders to actually help internet platforms by identifying what was infringing. It was utter nonsense. And, as we noted, even that wasn't good enough for MEP Axel Voss, the main member of the EU Parliament leading the charge on the EU Copyright Directive. He insisted that no safe harbor for platforms was acceptable at all.

And now the various legacy copyright holders are backing him up on this. As they have before, the movie/TV/sports industry associations have sent a laughable letter insisting they need more.

The undersigned representatives of European producers, broadcasters, and distributors/publishers of film and audiovisual content urgently call upon the EU legislators to reconsider the direction of travel on the proposed Copyright in the DSM Directive. The current version of the proposed Directive does not in any way fulfill the Commission's stated policy goals: it does not create the promised new rights for us as content producers, broadcasters and distributors/publishers, and it undermines the rights we already have. In short, the proposed Directive is not fit for purpose.

We strongly oppose the notion that a Directive must be agreed at any price - particularly not at the price of grave harm to our sector. We respectfully call for a responsible political and legislative approach to avoid a worst-case outcome that would curtail investment in the European film and audiovisual sector, undermine its competitiveness and strengthen already powerful platforms - outcomes directly contrary to the Commission's stated policy goals.

Nearly everything stated here is ridiculous. First of all, these very same groups sent a letter in December saying the exact opposite. No, really.

Here they are in December:

The initial goal of Article 13 was to codify the existing case-law in a way that would enable right holders to better control the exploitation of their content vis a vis certain OCSSPs which currently wrongfully claim they benefit from the liability privilege of Article 14 ECD.

Got that. No changes. No new rights. Codify existing case law to enable rights holders to have more control. Yet, here's their latest letter:

The current version of the proposed Directive does not in any way fulfill the Commission's stated policy goals: it does not create the promised new rights for us as content producers, broadcasters and distributors/publishers

The "promised" new rights? The very same rights you insisted, just a month and a half ago, were not what the law was intended to do?

If it hasn't become clear by now, these groups will say literally anything if it means getting what they want (i.e., money from Google).

The letter goes on to make a bunch of other wild claims:

More than two years later, the targeted approach and intended balance is completely gone. Fearmongering campaigns funded by powerful stakeholders have led to watered-down provisions on key issues, in particular with regard to Article 13. The proposed texts under discussion do not create any benefit for producers, broadcasters and distributors/publishers of film and audiovisual content and even undermine our existing rights by absolving online content sharing platforms from liability beyond current legislation and case law. This has a direct and harmful effect on the very rights that are the cornerstone of our financing and distribution models and will negatively impact our current enforcement efforts.

This is utter nonsense, and so disconnected from reality that I'm wondering if this is purely a negotiating gambit. The current version of Article 13 is weighted so far in favor of legacy copyright industries and their demands to be gatekeepers and to make the internet into a "licensed-only" content realm, that's it is complete nonsense to suggest that it has no benefit to those industries. I mean, yes, the current Article 13 will do tremendous harm to content producers -- but by making the internet less open and free and useful. Furthermore, there is literally nothing in Article 13 that absolves online platforms from liability beyond current legislation and case law. Literally nothing. Indeed, it only serves to add tremendous liability to every such platform. Even the minor "safe harbor" only exists for tiny, brand new platforms and still requires a level of responsiveness to complaints well beyond existing law.

I remain at a loss as to what their negotiating strategy here is other than going for absolute broke in demanding not just that the internet that we know it be wrecked, but that the EU salt the earth behind it as well.

And, they're not the only ones. Just as I thought I was done with this post, the record labels put out a similar nonsensical letter.

Despite our constant commitment in the last two years to finding a viable solution, and having proposed many positive alternatives, the text - as currently drafted and on the table - no longer meets these objectives, not only in respect of any one article, but as a whole. As rightsholders we are not able to support it or the impact it will have on the European creative sector.

We appreciate the efforts made by several parties to attempt to achieve a good compromise in the long negotiations of recent months. Nevertheless, the outcome of these negotiations in several of the Council discussions has been to produce a text which contains elements which fundamentally go against copyright principles enshrined in EU and international copyright law.

Far from levelling the playing field, the proposed approach would cause serious harm by not only failing to meet its objectives, but actually risking leaving European producers, distributors and creators worse off.

Once again, I'm left a bit speechless by this, as the existing draft of Article 13 is the kind of thing that these guys would normally be salivating over. But if they want to blow up the entire thing because they want all the marbles, well, so be it.

Meanwhile, others are complaining as well. German entertainment giant Bertelsmann (who, way back in the day, was actually one of the more forward thinking of the old line entertainment companies -- until they fired that management team) is also whining about how the law doesn't go far enough. From Spiegel, translated via Google (random aside: perhaps Google should charge news sites for the benefit of these free translations...)

This emerges from a document which the group distributes to individual parliamentarians and which is available to SPIEGEL. It is a so-called non-paper, an unofficial document without a letterhead and without a signature. It states unequivocally: "We see in the directive as a whole no longer the originally intended and we advocated strengthening the right holders and creatives".

[....]

According to the Bertelsmann paper, article 13 "as discussed now contains loopholes for the platform operators, which is why the group rejects it" completely ". "All in all," it continues, "with the adoption of the EU Copyright Directive, there are more disadvantages than advantages for us."

Amusingly, even though this is basically the exact same stance that Axel Voss himself stated earlier this week, now he's frustrated with Bertelsmann as well:

Axel Voss of the CDU, the rapporteur in the European Parliament, is also dissatisfied with the current compromise proposal of the Romanian Presidency on Article 13 because he is not strict enough on the issue of liability. Nevertheless, Voss considers Bertelsmann's approach to be "extremely counterproductive".

In short, we remain in a situation where basically everyone dislikes the current draft of Article 13, though for vastly different (and often conflicting) reasons. The whole process is a mess and even the people who hate Article 13 for being too easy on platforms (which is not even close to true) don't seem to agree on the reasons why they hate it.

Perhaps it's time for Voss and others to admit the obvious: Article 13 was and is a bad idea in any form, and it's time to drop it entirely.