How Mexico's New Copyright Law Crushes Free Expression

Deeplinks 2020-07-27

Summary:

When Mexico's Congress rushed through a new copyright law as part of its adoption of Donald Trump's United States-Mexico-Canada Agreement (USMCA), it largely copy-pasted the US copyright statute, with some modifications that made the law even worse for human rights.

The result is a legal regime that has all the deficits of the US system, and some new defects that are strictly hecho en Mexico, to the great detriment of the free expression rights of the Mexican people.

Mexico's Constitution has admirable, far-reaching protections for the free expression rights of its people. Mexico’s Congress is not merely prohibited from censoring its peoples' speech -- it is also banned from making laws that would cause others to censor Mexicans' speech.

Mexico’s Supreme Court has ruled that Mexican authorities and laws must recognize both Mexican constitutional rights law and international human rights law as the law of the land. This means that the human rights recognized in the Constitution and international human rights treaties such as the American Convention on Human Rights, including their interpretation by the authorized bodies, make up a “parameter of constitutional consistency," except that where they clash, the most speech-protecting rule wins. Article 13 of the American Convention bans prior restraint (censorship prior to publication) and indirect restrictions on expression.

As we will see, Mexico's new copyright law falls very far from this mark, exposing Mexicans to grave risks to their fundamental human right to free expression.

Filters

While the largest tech companies in America have voluntarily adopted algorithmic copyright filters, Article 114 Octies of the new Mexican law says that "measures must be taken to prevent the same content that is claimed to be infringing from being uploaded to the system or network controlled and operated by the Internet Service Provider after the removal notice." This makes it clear that any online service in Mexico will have to run algorithms that intercept everything posted by a user, compare it to a database of forbidden sounds, words, pictures, and moving images, and, if it finds a match, it will have to block this material from public view or face potential fines.

Requiring these filters is an unlawful restriction on freedom of expression. “At no time can an ex ante measure be put in place to block the circulation of any content that can be assumed to be protected. Content filtering systems put in place by governments or commercial service providers that are not controlled by the end-user constitute a form of prior censorship and do not represent a justifiable restriction on freedom of expression." Moreover, they are routinely wrong. Filters often mistake users own creative works for copyrighted works controlled by large corporations and block them at the source. For example, classical pianists who post their own performances of public domain music by Beethoven, Bach, and Mozart find their work removed in an eyeblink by an algorithm that accuses them of stealing from Sony Music, which has registered its own performances of the same works.

To make this worse, these filters amplify absurd claims about copyright for example, the company Rumblefish has claimed copyright in many recordings of ambient birdsong, with the effect that videos of people walking around outdoors get taken down by filters because a bird was singing in the background. More recently, humanitarian efforts to document war-crimes fell afoul of automated filtering.

Filters can't tell when a copyrighted work is incidental to a user's material or central to it. For example, if yo

Link:

https://www.eff.org/deeplinks/2020/07/how-mexicos-new-copyright-law-crushes-free-expression

From feeds:

Fair Use Tracker » Deeplinks
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Tags:

agreements

Authors:

Cory Doctorow

Date tagged:

07/27/2020, 19:52

Date published:

07/27/2020, 19:32