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European MEPs vote to reopen copyright debate over ‘censorship’ controversy

A 318-278 majority of MEPs in the European Parliament has just voted to reopen debate around a controversial digital copyright reform proposal — meaning it will now face further debate and scrutiny, rather than be fast-tracked towards becoming law via the standard EU trilogue negotiation process.

Crucially it means MEPs will have the chance to amend the controversial proposals.

Last month the EU parliament’s legal affairs committee approved the final text of the copyright proposal — including approving its two most controversial articles — kicking off a last ditch effort by groups opposed to what they dub the ‘link tax’ and ‘censorship machines’ to marshal MEPs to reopen debate and be able to amend the proposal.

The copyright reform is controversial largely on account of two articles:

  • Article 11 — which proposes to create a neighboring right for snippets of journalistic content in order to target news aggregator business models, like Google News, which publishers have long argued are unfairly profiting from their work.

Similar ancillary copyright laws have previously been enacted in Germany and Spain — and in the latter market, where the licensing requirement was not flexible, Google News closed up shop entirely, leading, say critics, to decreased traffic referrals to Spanish news sites.

  • Article 13 — which makes Internet platforms that host large amounts of user-uploaded content directly liable for copyright infringements by their users, and would likely push platforms such as YouTube towards pre-filtering all user generated content at the point of upload, with all the associated potential chilling effects if/when algorithms fail to recognize fair use of a copyrighted work, for instance.

Article 13 is arguably the more controversial element of the two, and it is certainly where opposition campaigning has been fiercest. Though it has strong support from musicians and the music industry who have spent years fighting YouTube, arguing it exploits legal protections around music videos viewed on its service and pays lower royalties than they are due.

In the opposition camp, a broad coalition of digital rights organizations, startup groups, Internet architects, computer scientists, academics and web advocates — including the likes of Sir Tim Berners-Lee, Vint Cerf, Bruce Schneier, Jimmy Wales and Mitch Kapor, who in an open letter last month argued that Article 13 “takes an unprecedented step towards the transformation of the Internet from an open platform for sharing and innovation, into a tool for the automated surveillance and control of its users”.

This week several European language versions of Wikipedia also blacked out encyclopedia content in a ‘going dark’ protest against the proposals, though the European Commission has claimed online encyclopedias would not be impacted by Article 13.

A claim that is, however, disputed by opponents…

An online petition calling for MEPs to vote for the parliament to be able to amend the proposals had gathered more than 850,000 signatures at the time of the vote.

Right ahead of the vote, MEPs heard brief statements in favor and against fast tracking the proposal.

Speaking in favor, MEP Axel Voss — rapporteur on the legal affairs committee which voted in favor of the text last month — said the proposals are intended to end “the exploitation of European artists on the Internet”.

“We’re talking about the major US platforms like Google and Facebook that have been making huge profits at the cost of European creatives. We need to prevent that,” he said. “And I think it is inexplicable how some people want to support this Internet capitalism, while others are calling for America first an abusing data and exploiting our creatives. We should be standing at the side of our European creators, and otherwise there is a risk of creative insolvency.”

“Why would we be against wanting to prevent copyright violations, why would we be against fair remuneration of creatives, and getting these large platforms to take more responsibility,” he added. “The campaign that we’re subject to, from Google, Facebook, that are meeting with children of MEPs — all of this is based on lies. There are no limits being put for individual users, every person can continue to set up links and carry out their uploads with legal certainty.”

Speaking against the proposal being fast-tracked — to allow for what she described as a “broad, fact-based debate” — was MEP Catherine Stihler, rapporteur on the internal market and consumer protection committee, which had joint competency on Article 13 of the proposal but whose position she said had not been taken into account in the text agreed by the (Juri) legal affairs committee, saying their text “does not achieve the needed balance”.

“We are all united in our shared mission to protect artists and cultural diversity in Europe… In our committee we were able to reach a broad compromise that makes meaningful progress on the value gap but at the same time safeguarding the rights of European Internet users, SMEs and startups,” said Stihler.

“There are real concerns about the effect of Article 13 on freedom of expression, raised by experts ranging from the UN special rapporteur David Kaye to the inventor of the world wide web, sir Tim Berners-Lee. And real concerns voiced by our citizens, just yesterday I received a petition signed by almost a million people against the Juri committee mandate. And although there is consensus — and I do believe there is consensus about the goals behind this law — huge controversy still exists about the methods proposed, something’s not right here. We owe it to the experts, stakeholders and citizens to give this directive the full debate necessary to achieve broad support.”

The outcome of today’s vote means copyright lobbyists on both sides of the fence face a busy summer — ahead of debate, the chance for amendments to the text and another vote, now set to take place in the EU parliament in September.

European Consumer Organisation, BEUC, welcomed today’s vote in the parliament.

In a statement, its DG, Monique Goyens, said: “This is a big decision in the fight to prevent large-scale and systematic filtering of online content from becoming the norm. The legislative debate urgently needs re-direction. The Internet must remain a place where consumers can freely share own creations, opinions and ideas. MEPs have a chance to correct a heavily unbalanced report and make copyright work for both consumer and creators.”

In the not at all happy camp: The Society of Authors, Composers and Publishers of Music (Sacem), whose secretary general, David El Sayegh, described it as “a set-back but it is not the end”.

“Sacem remains dedicated to ensuring that creators are recognised and remunerated for the value of their work,” he added in a statement. “We will not be discouraged by today’s decision and will continue to mobilise the support of musicians and music lovers across the world, in the hopes of reaching a fair agreement with these platforms that will safeguard the future of the music industry.

“We are confident that the European Parliament will eventually support a framework that fully acknowledges the rights of creators in the digital landscape of the 21st century.”

AI spots legal problems with tech T&Cs in GDPR research project

Technology is the proverbial double-edged sword. And an experimental European research project is ensuring this axiom cuts very close to the industry’s bone indeed by applying machine learning technology to critically sift big tech’s privacy policies — to see whether AI can automatically identify violations of data protection law.

The still-in-training privacy policy and contract parsing tool — which is called ‘Claudette‘: Aka (automated) clause detector — is being developed by researchers at the European University Institute in Florence.

They’ve also now got support from European consumer organization BEUC — for a ‘Claudette meets GDPR‘ project — which specifically applies the tool to evaluate compliance with the EU’s General Data Protection Regulation.

Early results from this project have been released today, with BEUC saying the AI was able to automatically flag a range of problems with the language being used in tech T&Cs.

The researchers set Claudette to work analyzing the privacy policies of 14 companies in all — namely: Google, Facebook (and Instagram), Amazon, Apple, Microsoft, WhatsApp, Twitter, Uber, AirBnB, Booking, Skyscanner, Netflix, Steam and Epic Games — saying this group was selected to cover a range of online services and sectors.

And also because they are among the biggest online players and — I quote — “should be setting a good example for the market to follow”. Ehem, should.

The AI analysis of the policies was carried out in June, after the update to the EU’s data protection rules had come into force. The regulation tightens requirements on obtaining consent for processing citizens’ personal data by, for example, increasing transparency requirements — basically requiring that privacy policies be written in clear and intelligible language, explaining exactly how the data will be used, in order that people can make a genuine, informed choice to consent (or not consent).

In theory, all 15 parsed privacy policies should have been compliant with GDPR by June, as it came into force on May 25. However some tech giants are already facing legal challenges to their interpretation of ‘consent’. And it’s fair to say the law has not vanquished the tech industry’s fuzzy language and logic overnight. Where user privacy is concerned, old, ugly habits die hard, clearly.

But that’s where BEUC is hoping AI technology can help.

It says that out of a combined 3,659 sentences (80,398 words) Claudette marked 401 sentences (11.0%) as containing unclear language, and 1,240 (33.9%) containing “potentially problematic” clauses or clauses providing “insufficient” information.

BEUC says identified problems include:

  • Not providing all the information which is required under the GDPR’s transparency obligations. “For example companies do not always inform users properly regarding the third parties with whom they share or get data from”
  • Processing of personal data not happening according to GDPR requirements. “For instance, a clause stating that the user agrees to the company’s privacy policy by simply using its website”
  • Policies are formulated using vague and unclear language (i.e. using language qualifiers that really bring the fuzz — such as “may”, “might”, “some”, “often”, and “possible”) — “which makes it very hard for consumers to understand the actual content of the policy and how their data is used in practice”

The bolstering of the EU’s privacy rules, with GDPR tightening the consent screw and supersizing penalties for violations, was exactly intended to prevent this kind of stuff. So it’s pretty depressing — though hardly surprising — to see the same, ugly T&C tricks continuing to be used to try to sneak consent by keeping users in the dark.

We reached out to two of the largest tech giants whose policies Claudette parsed — Google and Facebook — to ask if they want to comment on the project or its findings.

A Google spokesperson said: “We have updated our Privacy Policy in line with the requirements of the GDPR, providing more detail on our practices and describing the information that we collect and use, and the controls that users have, in clear and plain language. We’ve also added new graphics and video explanations, structured the Policy so that users can explore it more easily, and embedded controls to allow users to access relevant privacy settings directly.”

At the time of writing Facebook had not responded to our request for comment.

Commenting in a statement, Monique Goyens, BEUC’s director general, said: “A little over a month after the GDPR became applicable, many privacy policies may not meet the standard of the law. This is very concerning. It is key that enforcement authorities take a close look at this.”

The group says it will be sharing the research with EU data protection authorities, including the European Data Protection Board. And is not itself ruling out bringing legal actions against law benders.

But it’s also hopeful that automation will — over the longer term — help civil society keep big tech in legal check.

Although, where this project is concerned, it also notes that the training data-set was small — conceding that Claudette’s results were not 100% accurate — and says more privacy policies would need to be manually analyzed before policy analysis can be fully conducted by machines alone.

So file this one under ‘promising research’.

“This innovative research demonstrates that just as Artificial Intelligence and automated decision-making will be the future for companies from all kinds of sectors, AI can also be used to keep companies in check and ensure people’s rights are respected,” adds Goyens. “We are confident AI will be an asset for consumer groups to monitor the market and ensure infringements do not go unnoticed.

“We expect companies to respect consumers’ privacy and the new data protection rights. In the future, Artificial Intelligence will help identify infringements quickly and on a massive scale, making it easier to start legal actions as a result.”

For more on the AI-fueled future of legal tech, check out our recent interview with Mireille Hildebrandt.

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Europe takes another step towards copyright pre-filters for user generated content

In a key vote this morning the European Parliament’s legal affairs committee has backed the two most controversial elements of a digital copyright reform package — which critics warn could have a chilling effect on Internet norms like memes and also damage freedom of expression online.

In the draft copyright directive, Article 11; “Protection of press publications concerning online uses” — which targets news aggregator business models by setting out a neighboring right for snippets of journalistic content that requires a license from the publisher to use this type of content (aka ‘the link tax’, as critics dub it) — was adopted by a 13:12 majority of the legal committee.

While, Article 13; “Use of protected content by online content sharing service providers”, which makes platforms directly liable for copyright infringements by their users — thereby pushing them towards creating filters that monitor all content uploads with all the associated potential chilling affects (aka ‘censorship machines’) — was adopted by a 15:10 majority.

MEPs critical of the proposals have vowed to continue to oppose the measures, and the EU parliament will eventually need to vote as a whole.

EU Member State representatives in the EU Council will also need to vote on the reforms before the directive can become law. Though, as it stands, a majority of European governments appear to back the proposals.

European digital rights group EDRi, a long-standing critic of Article 13, has a breakdown of the next steps for the copyright directive here.

Derailing the proposals now essentially rests on whether enough MEPs can be convinced its politically expedient to do so — factoring in a timeline that includes the next EU parliament elections, in May 2019.

Last week, a coalition of original Internet architects, computer scientists, academics and supporters — including Sir Tim Berners-Lee, Vint Cerf, Bruce Schneier, Jimmy Wales and Mitch Kapor — penned an open letter to the European Parliament’s president to oppose Article 13, warning that while “well-intended” the requirement that Internet platforms perform automatic filtering of all content uploaded by users “takes an unprecedented step towards the transformation of the Internet from an open platform for sharing and innovation, into a tool for the automated surveillance and control of its users”.

“As creators ourselves, we share the concern that there should be a fair distribution of revenues from the online use of copyright works, that benefits creators, publishers, and platforms alike. But Article 13 is not the right way to achieve this,” they write in the letter.

“By inverting this liability model and essentially making platforms directly responsible for ensuring the legality of content in the first instance, the business models and investments of platforms large and small will be impacted. The damage that this may do to the free and open Internet as we know it is hard to predict, but in our opinions could be substantial.”

The Wikimedia Foundational also blogged separately, setting out some specific concerns about the impact that mandatory upload filters could have on Wikipedia.

“[A]ny sort of law which mandates the deployment of automatic filters to screen all uploaded content using AI or related technologies does not leave room for the types of community processes which have been so effective on the Wikimedia projects,” it warned last week. “As previously mentioned, upload filters as they exist today view content through a broad lens, that can miss a lot of the nuances which are crucial for the review of content and assessments of legality or veracity.”

More generally critics warn that expressive and creative remix formats like memes and GIFs — which have come to form an integral part of the rich communication currency of the Internet — will be at risk if the proposals become law…

Regarding Article 11, Europe already has experience experimenting with a neighboring right for news, after an ancillary copyright law was enacted in Germany in 2013. But local publishers ended up offering Google free consent to display their snippets after they saw traffic fall substantially when Google stopped showing their content rather than pay for using them.

Spain also enacted a similar law for publishers in 2014, but its implementation required publishers to charge for using their snippets — leading Google to permanently close its news aggregation service in the country.

Critics of this component of the digital copyright reform package also warn it’s unclear what kinds of news content will constitute a snippet, and thus fall under the proposal — even suggesting a URL including the headline of an article could fall foul of the copyright extension; ergo that the hyperlink itself could be in danger.

They also argue that an amendment giving Member States the flexibility to decide whether or not a snippet should be considered “insubstantial” (and thus freely shared) or not, does not clear up problems — saying it just risks causing fresh fragmentation across the bloc, at a time when the Commission is keenly pushing a so-called ‘Digital Single Market’ strategy.

“Instead of one Europe-wide law, we’d have 28,” warns Reda on that. “With the most extreme becoming the de-facto standard: To avoid being sued, international internet platforms would be motivated to comply with the strictest version implemented by any member state.”

Returning to Article 13, the EU’s executive, the Commission — the body responsible for drafting the copyright reforms — has also been pushing online platforms towards pre-filtering content as a mechanism for combating terrorist content, setting out a “one hour rule” for takedowns of this type of content earlier this year, for example.

But again critics of the copyright reforms argue it’s outrageously disproportionate to seek to apply the same measures that are being applied to try to clamp down on terrorist propaganda and serious criminal offenses like child exploitation to police copyright.

“For copyrighted content these automated tools simply undermine copyright exceptions. And they are not proportionate,” Reda told us last year. “We are not talking about violent crimes here in the way that terrorism or child abuse are. We’re talking about something that is a really widespread phenomenon and that’s dealt with by providing attractive legal offers to people. And not by treating them as criminals.”

In a statement reacting to the committee vote today, Monique Goyens, director general of European consumer rights group BEUC, warned: “The internet as we know it will change when platforms will need to systematically filter content that users want to upload. The internet will change from a place where consumers can enjoy sharing creations and ideas to an environment that is restricted and controlled. Fair remuneration for creators is important, but consumers should not be at the losing end.”

Goyens blamed the “pressure of the copyright industry” for scuppering “even modest attempts to modernise copyright law”.

“Today’s rules are outdated and patchy. It is high time that copyright laws take into account that consumers share and create videos, music and photos on a daily basis. The majority of MEPs failed to find a solution that would have benefitted consumers and creators,” she added.

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