The Dutch Parliament has landed in an untenable legislative cul-de-sac with its version of the Copyright Directive.
By Cory Doctorov and cross-posted from Electronic Frontier Foundation.
With the passage of last year’s Copyright Directive, the EU demanded that member states pass laws that reduce copyright infringement by internet users while also requiring that they safeguard the fundamental rights of users (such as the right to free expression) and also the limitations to copyright. These safeguards must include protections for the new EU-wide exemption for commentary and criticism. Meanwhile states are also required to uphold the GDPR, which safeguards users against mass, indiscriminate surveillance, while somehow monitoring everything every user posts to decide whether it infringes copyright.
Serving these goals means that when EU member states turn the Directive into their national laws (the “transposition” process), their governments will have to decide to give more weight to some parts of the Directive, and that courts would have to figure out whether the resulting laws passed constitutional muster while satisfying the requirement of EU members to follow its rules.
The initial forays into transposition were catastrophic. First came France’s disastrous proposal, which “balanced” copyright enforcement with Europeans’ fundamental rights to fairness, free expression, and privacy by simply ignoring those public rights.
Now, the Dutch Parliament has landed in the same untenable legislative cul-de-sac as their French counterparts, proposing a Made-in-Holland version of the Copyright Directive that omits:
- Legally sufficient protections for users unjustly censored due to false accusations of copyright infringement;
- Legally sufficient protection for users whose work makes use of the mandatory, statutory exemptions for parody and criticism;
- A ban on “general monitoring”— that is, continuous, mass surveillance;
- Legally sufficient protection for “legitimate uses” of copyright works.
These are not optional elements of the Copyright Directive. These protections were enshrined in the Directive as part of the bargain meant to balance the fundamental rights of Europeans against the commercial interests of entertainment corporations. The Dutch Parliament’s willingness to pay mere lip-service to these human rights-preserving measures as legislative inconveniences is a grim harbinger of other EU nations’ pending lawmaking, and an indictment of the Dutch Parliament’s commitment to human rights.
EFF was pleased to lead a coalition of libraries, human rights NGOs, and users’ rights organizations in an open letter to the EU Commission asking them to monitor national implementations that respect human rights.
In April, we followed this letter with a note to the EC’s Copyright Stakeholder Dialogue Team, setting out the impossibility of squaring the Copyright Directive with the GDPR’s rules protecting Europeans from “general monitoring,” and calling on them to direct member-states to create test suites that can evaluate whether companies’ responses to their laws live up to their human rights obligations.
Today, we renew these and other demands, and we ask that Dutch Parliamentarians do their job in transposing the Copyright Directive, with the understanding that the provisions that protect Europeans’ rights are not mere ornaments, and any law that fails to uphold those provisions is on a collision course with years of painful, costly litigation.