David Kaye, UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, has said that the European Union’s copyright law should not be at the cost of freedom of expression. Kaye added that the law should be modernised.

The latest version (pdf) of the proposed directive (Article 13) states that content sharing services like YouTube should license copyright protected material from the rights holders. The provider will be held liable if it cannot demonstrate that the material was licensed despite its best efforts, the rights were not available and that it acted quickly to remove infringing material. It puts volume and size conditions on defining services. Activists have called for civil action to stop this directive from going through.

Kaye said, “Article 13 of the proposed Directive appears destined to drive internet platforms toward monitoring and restriction of user-generated content even at the point of upload. Such sweeping pressure for pre-publication filtering is neither a necessary nor proportionate response to copyright infringement online.”

According to Kaye

  • Most platforms will not qualify for the exemption and face ‘legal pressure to install and maintain expensive content filtering infrastructure’ to comply with the directive.
  • This will kill information diversity and media pluralism in Europe
  • The absence of specific requirements from platforms and Member States to ‘defend freedom of expression’, especially in a case where “quotation, criticism, review” and the “use [of copyrighted works] for the purpose of caricature, parody or pastiche” be protected, for example creates legal uncertainty
  • Kaye asks who would bear the brunt of censorship when it comes to distinguishing between copyright violations and legitimate uses of protected material? The onus would be on the creators and artists who lack the resources to litigate these claims, he added.

Kaye suggested that the European Parliament work with digital rights groups, artists, journalists and other representatives of civil society to resolve issues in collaboration. In June 2018, Kaye had also written to the EU on a previous version of this directive asking it to reconsider the conditions of it. (Read our report on the previous version here.) The European Parliament is scheduled to vote on this directive in the last week of March.

Intermediary Liability in India: Star India’s take on copyright violation

EU’s Article 13 directive is similar to India’s proposed Intermediary Liability guidelines which are under consultation. Some of its proposed rules include taking down of ‘unlawful content’ within 24 hours, having tools to identify, remove and disable public access to unlawful information and content etc.

In its submission to MeitY, Star India said that some intermediaries have misused the the provisions of Section 79 of the IT Act and the Rules thinking that they have complete immunity from Indian laws. It added that intermediaries be made responsible for actively screening and removing infringing content. The Indian Music Industry’s submission also echoes in the sentiment of Star India’s.