Copyright Directive: alert for technical intermediaries

Draft Article 13 of this copyright directive would oblige hosting service providers (whether storage providers, e-commerce sites, social networks or video-sharing platforms) on the Internet to actively monitor and filter user-generated content, with strong obligations to detect and remove content covered by copyright.

Such obligations would thus undermine the liability regime for hosting providers laid down in Europe by the e-commerce directive and in France by the law on confidence in the digital economy, a regime that has proved fundamental to the development of the Internet in France and Europe.

Furthermore, the Estonian Presidency of the European Union has invited Member States to consider measures that would openly undermine the hosting provider regime (1), and to decide on an extension of copyright that would make Internet intermediaries automatically liable, in contradiction with the intermediary liability regime of the e-commerce directive (2).

Implementing such an obligation would imply systematic pre-screening by hosts of every piece of content sent by an Internet user before publication, and would therefore threaten not only the operation of these services, but above all everyone’s access to the means of free expression and creation online. De facto, hosts would become the sole judges, ex ante, of what should or should not be accessible on the Internet.

So, beyond the impact on intermediaries, the measures envisaged would necessarily lead to a restriction of European citizens’ fundamental rights on the Internet. This analysis is shared by over fifty European academics (3), and an open letter on the subject (4) has been signed by nearly 60 NGOs across Europe defending fundamental freedoms.

The signatory trade organizations therefore call on France to defend the status of hosting providers, which is not contradictory to the implementation of copyright protection measures, and ask that the government initiate a debate involving all stakeholders as soon as possible.