Tuesday, February 26, 2019

Germany's Federal Data Protection Commissioner: EU copyright reform poses risks to data protection

[Update] The Federal Commissioner's spokesman has thankfully communicated the agency's approval of my translation as correct, and everyone disseminating it will be able to point to that fact. Thanks to fellow IP blogger Dr. Birgit Clark for telling me that an official translation would be more helpful, an impulse that led me to seek official approval. [/Update]

To skip to said translation of the statement, please click here.

In my previous post I reported and commented on the two-thirds majority of the members of the European Parliament's legal affairs committee (JURI) that voted in favor of the proposed EU Copyright Directive and announced at the end that I was going to translate--in the post you now have in front of you--a statement that came out just before the JURI vote and may help with a view to the European Parliament's plenary vote as well as the further process, provided there is a further process, which requires the Parliament to reject or amend the directive.

The Federal Data Protection Commissioner of Germany, Ulrich Kelber, issued a statement voicing his concerns about the most problematic element of the bill in its current form: upload filters. The bill doesn't mention them explicitly, but simply makes them a de facto requirement, and Mr. Kelber's statement (in German; I'll translate the full text below) addresses the ramifications of upload filters for data protection.

Please bear with me for a minute before I provide the translation because I have an anecdote to tell. In 2004, a parliamentary aide employed by his party (SPD = social democrats) arranged a meeting for me and a fellow anti-software-patent activist, Marco Schulze, with Mr. Kelber in his Bundestag (German federal parliament) office. When suggesting the meeting, that aide had told us: "You guys gotta meet Uli. He's sympathetic to your concerns about software patents because he has a computer science degree and knows the stuff." At the start of the meeting, I said "As a programmer, you obviously...," but he interrupted me: "No, I'm not a programmer. I hate programming." My conversation starter had failed. I asked anyway: "But you do have a computer science degree?" And he replied: "Sure, but there's a whole lot of things you can do with that degree other than writing code." Well, in his case it's obvious that he made a political career anyway. And that conversation back in 2004 went very well despite my unawareness of his despise of the activity of coding. Years later, I contacted him about standard-essential patents, and while patent policy was no longer his focus, he told me he read a few of my blog posts anyway just to reminisce our joint efforts against software patents...

So here's my translation of the statement he issued today, which should really come in handy in the build-up to the EP's plenary vote:


This translation, which was furnished by Florian Mueller (fosspatents.com), has been approved as correct by the Federal Commissioner for Data Protection and Freedom of Information. Feel free to disseminate, but please do include this notice.

Copyright reform also poses risks to data privacy rights

Bonn/Berlin -- February 26, 2019

The copyright reform package that is currently being discussed in Brussels could also pose significant risks relating to data privacy rights. Above all, the use of so-called upload filters presents a threat of a few large providers of such technology gathering even more data concerning the users of many Internet platforms and services.

The Federal Commissioner for Data Protection and Freedom of Information, Ulrich Kelber, therefore warns against the potential consequences of the reform in question: "Even though upload filters are not explicitly mandated by the bill, they will be employed as a practical effect. Especially smaller platform operators and service providers will not be in a position to conclude license agreements with all [copy]right holders. Nor will they be able to make the software develoment effort to create upload filters of their own. Instead, they will utilize offerings by large IT companies just the way it is already happening, for one example, in the field of analytics tools, where the relevant components created by Facebook, Amazon and Google are used by many apps, websites, and services."

"At the end of the day, this would result in an oligopoly consisting of a few vendors of filtering technologies, which would then be instrumental to more or less the entire Internet data traffic of relevant platforms and services. The wealth of information those vendors would receive about all users in the process is evidenced by, among other examples, current media coverage of data transfers by eHealth apps to Facebook."

Therefore, the Federal Commissioner for Data Protection and Freedom of Information sees a clear and present danger of a further concentration of data in the hands of an oligopoly of vendors as an adverse effect of the present EU proposal. Against the background of the decision the Federal Cartel Office [Germany's national antitrust authority] handed down against Facebook a few weeks ago, the objective should actually be to achieve the opposite [of such concentration of data].

Ulrich Kelber calls for further steps to be taken to avert the previously-outlined scenario: "If the EU believes platform operators can meet their new obligations [under the proposed copyright directive] without upload filters, it must make a clear showing. That is why I am awaiting with great interest the [European] Commission's forthcoming recommendations. In the other event, data privacy considerations require a thorough overhaul of the bill. Notwithstanding the need to update the protection of author's rights in our times, such a measure must not harm or compromise the protection of Internet users' data."

With its present copyright bill, the EU is seeking, among other goals, to strengthen the position of creators enforcing their rights against commercial Internet platforms such as YouTube. The objective is to establish liability for platform operators failing to take measures to prevent the illegal distribution of copyrighted works via their services.


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