EU Tech Policy Brief: April 2018 Recap

This is the April recap issue of CDT’s monthly EU Tech Policy Brief. It highlights some of the most pressing technology and internet policy issues under debate in Europe, the U.S., and internationally, and gives CDT’s perspective on them.

EC Crackdown on Disinformation Comes with Great Risks to Free Expression

On 26 April, the European Commission published a Communication on ‘Tackling Online Disinformation: A European Approach’. It follows a public consultation and a report from a ‘High-Level Group on Fake News’. The concerns behind the initiative are understandable, but we caution against the likely impact on free expression online. First, there is very little data available to assess the quantity of misinformation and its impact on society, making it hard to assess what the right policy response is. However, the Commission insists on short-term measures being implemented, such as the creation of an EU-wide Code of Practice and an independent European network of fact checkers. It is essential that the setup and operation of this Code of Practice include representatives of free expression and digital rights groups (existing EC self-regulatory schemes are lacking here). The credibility of an independent European network of fact checkers will require scrupulous political balance and representation of the entire ideological spectrum, as well as full transparency and accountability. Finally, it is regrettable but perhaps not surprising that the Commission uses concerns about disinformation to justify its ancillary copyright proposal in Article 11 of the DSM Copyright Directive. This in itself, as MEP Julia Reda has pointed out, may well qualify as disinformation.

EC Should Broaden TDM Exception in the Copyright Directive to Boost Progress AI Strategy

The European Commission published a Communication on Artificial Intelligence (AI) on 25 April, in which it put forward a strategy to stimulate development and boost investment in this field in Europe. We agree that AI, machine learning, and data analytics offer vast potential for economic growth and increased competitiveness in Europe, and the Commission should be commended for attempting to take a coordinated European policy approach. However, it is worrisome to see that the draft Communication on AI does not recognise the foundational role that Text and Data Mining (TDM) plays in AI. It seems contradictory for the Commission to call for a robust AI strategy while pushing for a restrictive TDM exception within the Copyright Directive proposal (Article 3). In various open letters addressed to the European institutions, we joined a broad range of stakeholders in calling for the adoption a broader TDM exception in the Copyright Directive, in view of helping Europe become a global leader in AI.

EC’s Draft E-Evidence Proposals Require Robust Human Rights Safeguards

On April 17, the European Commission (EC) published its long-awaited draft legislation on E-Evidence to facilitate cross-border law enforcement demands for internet users’ communications content and metadata. While we recognise the motivation behind these proposals, we continue to argue that enhanced access to electronic data by law enforcement authorities cannot come at the expense of fundamental privacy and procedural rights protections. We will base our advocacy on this core principle as the legislative process moves forward in the European Parliament and the Council. This is essential due to the enormous risk to privacy worldwide that the proposals set out. If enacted and implemented, the Regulation and Directive will effectively give each EU Member State access for law enforcement purposes to the data of internet users worldwide, since each provider in the scope of the Regulation can be compelled to disclose its users’ data no matter where the user is located and no matter the country of citizenship of the user. For this reason, CDT set out ten human rights standards the EC’s proposals must meet, and showed how they match up to these criteria. Our initial analysis of the proposals shows that they rely on a high level of mutual trust on the judicial frameworks of other Member States and third countries, and that further safeguards and remedies need to be built in the proposals in order for them to fully meet the human rights protections criteria.

Copyright DSM Directive: Bulgarian Presidency Fails to Force Member States Compromise

On 27 April, the Committee of the Permanent Representatives of the Governments of the Member States to the European Union (COREPER) met to move discussions on the EU copyright reform forward. The Bulgarian Council Presidency wants EU Member States to endorse their latest copyright proposal, and give them a mandate to start negotiating with the European Parliament. This rushed move was widely criticised in an open letter we joined with over 145 organisations, particularly since in the European Parliament the vote has been postponed to June. There has been unprecedented pushback from a broad range of companies, NGOs, and academics, which should make it hard for Member States to justify signing off on a mandate to go ahead with negotiations with Parliament. The academic community has been particularly vocal, with an open letter against Article 11 with more than 160 signatories. Most recently, an open letter from European research centres called for the copyright proposal to be rejected as a whole unless the nature of the negotiations changes radically.

Copyright DSM: European Creators, Artists and Users Reject Upload Filtering in Article 13

As is now well known, Article 13 of the DSM Copyright Directive proposal is based on the “value gap”, which is not easy to define or measure but is at the core a purely commercial issue between YouTube and a handful of global record labels about revenue sharing. Meanwhile, many artists have claimed that the actual value gap is the one separating artists and creators from royalty payments from record labels and collecting societies. For example, the report “Dissecting the Digital Dollar, Part Two”, by the Music Managers Forum, concludes that streaming is profitable but that artists do not get their fair share of “the Digital Pie”. The Commission has adopted the record labels’ arguments wholesale, and proposes mandated upload filtering in Article 13, not only for YouTube and similar platforms but for an extremely broad range of internet services. In this debate, the views of creators, artists, and users have been largely ignored. The Create.Refresh campaign seeks to correct this imbalance. Under its banners, more than 80 artists and creators from all over Europe have pushed back against Article 13. Similarly, the Vox Scientia platform brings together scientists, researchers, educators, librarians, cultural heritage professionals, students, and many others. The platform gives people the opportunity to make their views known on issues like TDM, upload filtering, and publishers’ rights.