Protecting copyright with robots: a risk for fundamental rights and freedoms

This week, the European Parliament’s Legal Affairs Committee (JURI) will vote on the European Commission’s proposal for a Directive for Copyright in the Digital Single Market (“Copyright directive”). Qwant recognizes the importance of copyright protection and the need for proper online enforcement. As a company driven by the desire to promote a sustainable digital development, we value the right for all authors and publishers to have their works efficiently protected and we understand that such protection enables continued creation. And we equally value the Internet users’ freedom of speech and their right to access information.

We believe that when they rely on platforms to express themselves, citizens should be free to use content that they feel is needed to support their point of view, provided that this use is proportionnate. This requires to find a proper balance between copyright and the right to freedom of expression, and this has been so far the balance sought by the European lawmakers.

Currently, when copyrighted content is unlawfully published, platforms have the obligation to remove it expediously once they have been informed of the infringement, and infringing users can be sued for a blatant use of copyrighted material.

Putting our freedom of speech into the hands of robots

If voted, the proposed article 13 of the Copyright Directive will alter the balance. It requires platforms to implement automated filtering methods, so that whenever copyrighted content is detected, the allegedly infringing content is automatically removed and blocked, unless a license agreement allows the use of the detected content.

Users who feel they should be allowed to publish content will thus have the obligation to make their right recognized afterwards, thanks to appeal mechanisms that, after hours or days, will either greenlight their expression or ban them from publishing what they wanted to publish. This puts a heavy burden on robots that can’t determine when a human being is making a proportionnate and legal use of a third-party content, for instance for parody, satire, reporting or criticism purposes. It will have an impact on freedom of expression, probably without ensuring new revenues for authors of copyrighted content — smaller or even bigger platforms will most often prefer blocking the sharing of any copyrighted content than paying fees that put their business at risk.

As a letter signed by many Internet pionneers warns, “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“. Also we must take note of what David Kaye, UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, says in his own letter about the proposed Copyright Directive. Among other warnings, he notes that the language of the proposed article 13 creates legal uncertainty for platforms whose filtering obligations may change depending on their size, on the volume or the nature of the shared content that they host: “Such uncertainty would also raise pressure on content sharing providers to err on the side of caution and implement intrusive content recognition technologies that monitor and filter user-generated content at the point of upload“.

Qwant is a European company that cares deeply about the protection of privacy and the importance of a digital world made by and for humans. Putting our freedom of speech into the hands of robots that will look into what human beings share and assess the legality of what they say is not the Internet we want for our children. So while we understand the need for efficient protection of copyright, we believe the proposed path is not one to follow.