Last week the European Union’s top court, the Court of Justice of the European Union (CJEU), handed down its judgment on whether upload filters should be allowed as part of the EU Copyright Directive. The answer turned out to be a rather unclear “yes, but…“. Martin Husovec, an assistant professor of law at the London School of Economics, has published an opinion piece exploring the ruling, which he sums up as follows:
The Court ruled this week that filtering as such is compatible with freedom of expression. However, it must meet certain conditions. Filtering must be able to “adequately distinguish” when users’ content infringes a copyright and when it does not. If a machine can’t do that with sufficient precision, it shouldn’t be trusted to do it at all.
The problem is deciding whether implementations of the upload filters do indeed “adequately distinguish” between legal and infringing material. As Husovec notes, both the CJEU and the EU Member States have tried to make this tricky problem someone else’s. That’s hardly surprising, since it is far from obvious how to resolve the issue of allowing filtering but only if it respects legal use of copyright material. However, Husovec offers a way forward with some concrete proposals:
Filters should be subjected to testing and auditing. Statistics on the use of filters and a description of how they work should be made public.
Consumer associations should have the right to sue platforms for using poorly designed filters. Some authorities should have oversight of how the systems work and issue fines in the event of shortcomings.
Husovec notes a neat way to bring in those requirements without wading back into the swamp that is the Copyright Directive. He suggests using the EU’s new AI Act, currently under discussion, as a vehicle to impose safeguards on upload filters, which will inevitably be based on algorithms, and could thus be subject to the artificial intelligence legislation if policymakers added them.
It’s a good approach. Given that the CJEU has approved the stupid idea of upload filters, the least we should do is to apply a little (artificial) intelligence to how they will operate.
Feature image by geralt.