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Copyright Directive: six Member States question legality of proposals for automated upload filtering
5.9.17
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The European Commission's proposed Copyright Directive has caused controversy since its publication, in particular with its proposals that would introduce the automated filtering of uploads to online content-sharing platforms to try to detect copyright infringements.

A note (pdf) published today by Statewatch shows that concerns over the proposals raised by academics, civil society organisations, lawyers, MEPs and others are shared by some EU governments. Belgium, the Czech Republic, Finland, Hungary, Ireland and the Netherlands have asked the Council's Legal Service whether the proposal is compatible with EU law.

The note, sent to the Legal Service on 25 July, highlights that:

"the [Commission's] proposal does not provide for appropriate measures that would enable these users to actually benefit from public interest copyright exceptions. It is important to point out that certain exceptions to copyright, such as e.g. parody or the quotation right are the embodiment in copyright of fundamental rights other than the right to property." [emphasis added]

The note asks:

"Would the standalone measure/ obligation as currently proposed under Article 13 be compatible with the Charter of Human Rights (and more specifically Article 11- freedom of expression and information, Article 8 - Protection of personal data - and Article 16 - Freedom to conduct a business) in the light of the jurisprudence of the CJEU that aims to secure a fair balance in the application of competing fundamental rights?

Are the proposed measures justified and proportionate?" [emphasis added]

MEPs, civil society organisations, academics and legal experts have long argued that they are not.

The note also poses a number of other questions on Article 13, the related Recital 38 and their compatibility with other aspects of EU law.

It is believed that the Council Legal Services will offer a response to the questions at the meeting of the Council's Intellectual Property Working Party on 11-12 September, when national officials will also discuss recent proposals from the Estonian Presidency of the Council on a number of articles including Article 11, dealing with press publishers' rights, and Article 13.

See: Written questions from the authorities of Belgium, Czech Republic, Finland, Hungary, Ireland and the Netherlands to the Council Legal Service regarding Article 13 and Recital 38 of the proposal for a Directive on copyright in the digital single market (pdf)

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