EU policymakers respond to developers on upload filters

Both the EU Council and EU Parliament heard developers who responded to our call to action on the EU’s proposal to require copyright filters for uploaded content. Upload filters raise a number of efficacy, speech, and privacy concerns for software developers and the public. Although upload filters remain an unsettled part of the debate, EU policymakers are making more concerted attempts to narrow the scope of who filters would apply to.

In their latest proposals, Council and Parliament each exclude “non-for-profit open source software developing platforms.” Despite their intentions, neither the Council nor Parliament has yet to effectively protect open source software development because most open source software development is built on platforms, like GitHub, that aren’t not-for-profit.

DIGITALEUROPE, an organization representing the digital technology industry in Europe, emphasized this point in its recent letter to the EU Council:

The scope of Article 13 remains far too broad and out of proportion with its stated goals. We are not aware of any calls to address a value gap in relation, for example, to open source software repositories, yet such services are only excluded if they operate on a non-profit basis (which is not the case for many such service providers).

On Friday, the Council considered adopting its current version of the copyright proposal, but was unable to reach agreement. Two of the main sticking points were Article 11 and Article 3, each of which could affect developers.

Article 11 would create a new right for press publishers, sometimes referred to as “ancillary copyright,” and would enable them to require a license to post the snippets of text that describe links. Requiring this kind of permission would add overhead to anyone developing software for the web. It also would run counter to exceptions to copyright that allow copying for certain limited purposes, such as to comment on a copyrighted work.

Article 3 proposes a copyright exception for text and data mining in the EU, but only by research organizations for scientific purposes on a not-for-profit basis. Text and data mining is critical to AI and machine learning, and in the US is considered fair use. Article 3’s narrow exception would undermine the future of software development in the EU, including the EU’s own efforts to promote AI.

These articles (upload filters, ancillary copyright, and text and data mining) remain the most controversial parts of the Copyright Directive and each potentially affects developers. Discussions continue in Council, which hopes to agree on a proposal soon, and in Parliament, which currently plans to vote on its version of the proposal in late June.

There is still time to help policymakers effectively protect software development in the EU and it’s still important for those policymakers to hear from developers directly. Write to us to find out ways to engage with EU policymakers to protect software development!

Written by

Abby Vollmer

@vollmera

I'm GitHub's Director of Platform Policy and Counsel, building and guiding implementation of GitHub’s approach to content moderation. My work focuses on developing GitHub’s policy positions, providing legal support on content policy development and enforcement, and engaging with policymakers to support policy outcomes that empower developers and shape the future of software.