Article 13 of the Copyright Directive considered harmful

[this is a translation+partial update of my original post in French here]

The “directive on copyright in the Digital Single Market“,  in short “Copyright Directive”, having passed the JURI commission vote with amendments on 20 June  2018, will soon be voted in a plenary session of the European parliament, 5 July 2018.

I wrote the following text before calling some Members of the European Parliament (MEPs), thus participating in the campaign started by

I would like to invite you to do the same, not before you have read some of the references quoted at the end of this page, and consulted

Two articles are especially dangerous.

  • Article 11, about referencing and quoting press articles; we will not develop this issue any further here.
  • Article 13, about so-called “upload filters” on all content sharing sites (ie all sites who have a function of sharing content, including comments/videos/photographs/audio on social networks).

The stated goal of article 13 is to protect rightholders of the entertainment industry against the hegemony of the big web sharing platforms, most notably Youtube, which alledgedly results in revenue “evasion” when rightholder’s contents are illegally uploaded and consulted on these platforms.

The proposed solution is to create a legal obligation to deploy system blacklisting protected contents, on all content sharing sites, for all types of content, even those that don’t need protection (for example, computer software source code).

We are going to examine how such systems work, why they are costly to implement, with significant collateral damage, and why the targeted platform already implement measures to satisfy the stated goal.

Content blacklist systems

They can be roughly classified in three categories :

“Exact match” detection

They are relatively cheap in terms of resources. They work on raw digital data. They don’t need to be aware of formats or media type, not even of the detailed original content to protect, thanks to the use of so-called “hashing” or “digest” algorithms.

These features make these systems very easy to implement and operate, and very cheap. The algorithms are free and open source software, or public domain (for the underlying mechanism), and they are easily adapted to any platform.

On the other hand, these systems are very easy to bypass, through minor changes in the protected file. In consequence, they constitute a very poor protection for rightholders.

Detection “by similarity”

These systems are much more sophisticated. They have a knowledge of media formats, and are able to extract characteristic elements, similar to a fingerprint of the protected content.

This process enables a much wider detection of the content, even heavily modified, for example a barely audible background sound in a family video ou amateur show.

The most famous system in this category is Content-Id, implemented by Youtube, described here by Google. A lot of comments on Article 13 refer to Content-Id as a model. Article 13 itself seems to have been written with Content-Id in mind.

Systems “by similarity” are very expensive to develop and implement. According the the Google video quoted above, Content-Id required an investment of over $100 million.

There are also no free and open source implementation of such systems, which makes it even more difficult to deploy: you need to develop a custom, in-house system, or acquire a license for an existing commercial system, if you find one.  The companies in a position to provide such specific services are rare.

Furthermore, the detection performance (false positive and false negative rates) of these systems is difficult to estimate. First, for the above mentioned reasons (proprietary systems with limited access), second, because the underlying technical processes are based on heuristics which stops them from being fully reliable.

Finally, these system present an important drawback: as explained by Google in the Content-Id presentation video, rightholders must provide the original content, or protected excerpts from the content, which is difficult to achieve on a wide scale (many works and many actors on both roles, rightholders and content sharing platforms).

“watermarking” systems

These systems are mentioned in the annex of the directive. They are only presented here for the sake of completeness. Their costs are comparable to those of similarity detection systems, but they are of limited scope, probably not reasonably usable in the context of Article 13.

Blacklist management

Black list management, independently from the above technical criteria, constitutes an issue in itself.

Article 13 does not really provide satisfactory solutions to the following issues:

  • false positive (over-blocking): blocking legitimate content.
    • erroneous blacklisting by an alleged rightholder
    • erroneous blocking of content protected by an exception (parody, memes, etc), but in which the blacklisting systems have identified protected content.
    • erroneous insertions in the blacklist for other reasons. This happened repeatedly, for example, in the French police DNS blocking systems, including by misconfigured test systems. See [FR] bloqué pour apologie du terrorisme suite à une « erreur humaine » d’Orange.
  • false negative (under-blocking): not blocking illegitimate rightholder content. Content protection is difficult to implement, even on the rightholder side: many works have not even been digitalized by their legitimate rightholders.
  • adding new content to the blacklist may require manual, hence heavy, checks, to reduce false positives, but does not guarantee their elimination.
  • unwieldy and unreliable complaint mechanisms: all over-blocking and under-blocking issues have to be handled via human, or even judicial, intervention. But there are daily reports of abusive content removal here or there. For example, under the United States DCMA (Digital Millennium Copyright Act), some rightholders have been known to request content removal on works they didn’t own, by mere title similarity, or by claiming DMCA procedures to force removal of price lists in price comparators.
  • individuals and small companies are defenceless against abusive blocking of their content, if the site-internal reporting mechanism fails to address the issue in time. In most cases, action in court or even using an alternative dispute resolution system (13a) will be too expensive and too slow, resulting in a posteriori self-censorship.

Article 13 in its final redaction does not satisfactorily address these concerns, the last point above being the most worrisome.

The Content-Id system

Although Content-Id is owned by Google and Youtube-specific, it deserves a more thorough examination, as it seems to have been an implicit model for Article 13.

Content-Id is a “detection by similarity”. To use it, rightholders have to provide Youtube with the videos they wish to protect, or samples of these.

When a protected content is identified in a posted video, 3 options are available:

  • block the video
  • monetize the video (advertisement)
  • obtain traffic data, for example to know in which countries the video is popular.

According to Google, Content-Id has already enabled payment of several billions of dollars to rightholders, and the system includes hundreds of millions of videos.

Impact assessment of the directive

The summary of the impact assessment, as annexed to the project, is very incomplete: as compared to the full impact assessment study, it mentions only in part the impact for rightholders, limiting itself to a legal discussion in the digital single market. It doesn’t mention either the efficiency and technical feasibility of Article 13, or its consequences on Internet sites and the Internet ecosystem. It is advised to refer to the full impact assessment study.

1. Disappearance or marginalization of  contributive sites

Contributive sites based on free (Creative Commons, etc) content will not have the resources to exploit, not to mention develop or even rent/subscribe to systems similar to Content-Id.

The impact assessment study provides a real example of the subscribing costs to such a service: €900/month for a small site (5000 transactions/month, ie about €0.18/transaction; a transaction being a single check, needing to be executed for every post by a user).

The study only considers commercial sites where sharing is the main purpose. This fails to recognize the impact on high volume contributive sites, social networks, amateur or family photo sharing sites, classified advertisement, etc, for which there is no significant revenue stream as compared to the cost of monitoring posted content.

Most notably, social networks are targeted, as Article 2/4b of the directive excludes only 3 very specific types of sites from the requirements of Article 13.

  • services acting in a non-commercial purpose capacity such as online encyclopaedia
  • providers of cloud services for individual use which do not provided direct access to the public
  • open source software developing platforms
  • online market places whose main activity is the online retail of physical goods

As a consequence, this first impact on freedom of speech seems underevaluated.

2. All content types are targeted

Most content protection systems currently operated focus on contents from the entertainment industry:

  • videos and movies
  • music

On the other hand, Internet sharing applies to many other types of contents, for example photographs.

Again, the burden on Internet sites will be significant, with the same risks for abusive blocking, which also amplifies the consequences on the other listed issues.

3. Issues with respect to Freedom of Speech

As explained above and confirmed by many non-profit organizations, similarity detection systems are unable to differentiate illegal use from legal use such as a quote, a meme, a parody, etc.

It also happens frequently that works that are initially free of use are erroneously blacklisted, for example after being presented or quoted in protected TV shows or TV news.

In any case, content detection systems already result, when they are implemented, in abusive censorship. To force their generalization through the Directive can only be severely harmful to Freedom of Speech, especially on social networks, making it more difficult to exercise the above mentioned legal exceptions.

Finally, as explained, widening content detection systems to all types of contents can only make this risk more acute.

4. The proposed legal dispositions are inefficient to protect rightholders

As explained, similarity systems like Content-Id are not usable at global scale because of their cost, and exact match systems are easy to bypass.

Furthermore, similarity systems are already deployed on major sites, as explained by the impact assessment study:

In all, as content recognition technologies are already applied by the major user uploaded content services, it is likely that this option would not lead to significant increases in unjustified cases of prevented uploads compared to the current situation

In other words, Article 13 is not needed since the goals it seeks to achieve are already implemented where it matters.

5. The proposed dispositions may be harmful to cultural diversity

The impact assessment studies estimates that Article 13 will promote cultural diversity, which is assumed to be a natural byproduct of rightholder protection.

But Article 13 hampers the ability of contributive and/or non-profit sites, which without a doubt are also part of cultural diversity. Most of their contents are free of rights, hence with naturally maximized visibility and dissemination.

This is evidenced by Wikipedia’s statistics: 5th site in the world, according to the Alexa study. Furthermore, according to Wikimédia France: “platforms will prefer precaution by blocking more content than necessary, which will hamper their diversity, by preventing participation from people less accustomed to new technologies” (translated from « les plateformes opteront pour un principe de précaution en bloquant plus de contenu que nécessaire ce qui réduira la diversité de ces plateformes en empêchant les personnes peu aguerries aux nouvelles technologies d’y participer » here)

In summary, Article 13:

  • would not improve the rightholder’s situation with respect to the big platforms, since these already have deployed content detection and revenue sharing systems;
  • would not improve, either, the rightholder’s situation with respect to non-profit or low traffic platforms, which don’t have the ability to operate complex detection systems, don’t violate protected works other than accidentally thus in a limited way, and are already in position to remove illegal content.
  • represents, on the other hand, the following risks:
    • arbitrary censorship
    • reinforcement of the hegemony of big platforms by introducing significant barriers to entry
    • disappearance or marginalization of non-profit platforms, or fallback of these platforms on static content, removing the content sharing angle which is a key characteristic of the Internet;
  • represents, as well, serious risks regarding Freedom of Speech and Cultural Diversity.

For the above reasons, and as expressed by numerous organizations and renowned experts, it seems likely that Article 13, if kept in the directive, will do more harm than good on the European Internet.

A few references

The Open Letter on EP Plenary Vote, of which (as CEO) I am a signatory:

2 articles (amongst many others) on Julia Reda’s blog :

Open letter by 70 Internet experts

Positions of the EFF (Electronic Frontiers Foundation)

Other sites campaigning against Article 13:

Statement by the Wikimédia Foundation:

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