EU anti-piracy plan would introduce internet surveillance and 'ancillary copyright'

Proposals would contradict eCommerce Directive and ECJ court judgements

A leaked document from the Council of the European Union indicates that member states are pushing to introduce ‘indiscriminate internet surveillance' as part of a forthcoming copyright directive.

The proposals, backed by the Estonian government while it holds the six-monthly rotating EU presidency, have been justified on the grounds of tackling internet piracy.

The proposals suggest two ways in which the copyright directive could be further strengthened to tackle piracy. The first maintains the original proposal for an "upload filter" controlled by companies hosting content online.

In essence, this would mandate EU-wide censorship, argues the European Digital Rights initiative (EDRi), although references to "content recognition technologies", which would also raise the barrier still higher for internet start-ups, has been removed.

This second option is for the EU-wide extension of the concept of ‘ancillary copyright', which would require anyone publishing news or data snippets - and presumably any website or media organisation quoting the work of another media organisation - to pay royalties to the originator.

The EDRi describes the second option as a "more extreme version" of the first. "It seems so extreme that it almost makes the first option look like a reasonable compromise," claims the EDRi.

Ancillary copyright has already been introduced in Germany and Spain following publishers' complaints that it enabled Google to profit from their work. The practical result was that Google closed Google News in Spain, while in Germany, according to the EDRi, everyone except Google is now compelled to pay the so-called Google tax.

It would also contradict the liability regime in the eCommerce Directive, which would nevertheless not be amended or appealed, leaving two contradictory pieces of EU law on member states' statute books, according to the EDRi.

On top of that, the so-called upload filter would also contradict existing EU privacy legislation as it would entail monitoring of people's online activities in order to be effective. This, suggests TorrentFreak, would also directly contradict a European Court of Justice case, Sabam versus Netlog, that ruled that hosting sites cannot be compelled to filter content as this would violate users' privacy.

The proposals are due to be discussed at a meeting of the EU's Working Party on Intellectual Property next week.