France, As Promised, Is First Out Of The Gate With Its Awful Copyright Directive Law: Ignores Requirements For User Protections
from the what-a-mess dept
France was the most vocal supporter of the EU Copyright Directive’s upload filters provisions (originally known as Article 13, but Article 17 in the final version). Despite promises that the law wouldn’t require a filter, right after the Directive passed (which only happened after the French negotiators strong-armed Germany into a questionable deal), French officials promised that it would be be first in line to “transpose” Article 17 into a new law.
While it wasn’t quite as quick as they initially promised (there was talk of having it ready last summer), France has now proposed to put Article 17 into law in that country and it’s just about as bad as you could possibly imagine. Indeed, the law appears to simply ignore wholesale the already weak requirements that were put into Article 17, promising that the laws would protect user rights. That’s not what France was pushing for it. Instead, it was all in on the copyright maximalism, so user rights — the rights of the public — can apparently be ignored.
… the audacity with which the proposed French law ignores the safeguards included in the EU copyright directive to protect user rights should be baffling even to the most cynical commentator.
As former MEP Julia Reda notes, the whole thing, top to bottom is pretty crazy, and shows how France thinks about copyright law as a method for enriching the entertainment industry, rather than as a tool to benefit the public:
The new draft law on ?audiovisual communication and cultural sovereignty in the digital age? covers a number of different subjects aside from copyright law, including the protection of minors and the regulation of video streaming platforms like Netflix. The title of the proposed law gives a glimpse into the mindset of French legislators, presenting the enforcement of copyright laws in the interest of private entertainment companies as a matter of asserting France?s ?cultural sovereignty?. It frames Article 17 as a means to support the European entertainment industry in its conflicts with American tech companies. Users? interests are at best an afterthought in this struggle for ?cultural sovereignty?.
It will comes as no surprise — even as it is troubling — the French proposal will create massive problems for smaller internet sites should they wish to host any sort of user-generated content:
Despite assertions by supporters of Article 17 that the law is aimed at huge social media companies like YouTube and Facebook, the French proposal still tries to extend the new obligations to as many platforms as possible. The definition included in section 1 of the proposal is mostly identical to the definition included in the EU copyright directive, which has been criticized for being exceedingly vague. No effort is made to narrow down what is meant by unclear terms from the directive such as ?large amounts? of copyrighted content uploaded to a platform. Instead, the French law provides that a decree should define what is considered a large amount.
There is, however, one important change: The definition does not just include platforms that profit directly from user uploads of copyrighted content, but also those that do so indirectly. That could include platforms whose business model is not based on giving access to user uploads of copyrighted content (for example by placing advertisements next to that content), but who nevertheless allow such uploads. One example could be the dating app Tinder, which is based on a freemium business model, where users can pay for extra functionality which gives their dating profiles greater visibility. These profits are clearly not directly derived from giving users access to copyright-protected content, yet without the possibility to upload copyrighted content (pictures), the app clearly would not function, so it could be argued that it derives its profits indirectly from organizing the uploaded pictures.
That bit above is notable because when Julia and others (including us here at Techdirt) raised concerns about how the law might apply to sites like Tinder or others where the content was secondary, we were told that would never happen and the law would clearly not cover such sites. Yet, here we are, and (shocker) the promises we were told turned out to be lies.
Perhaps most incredible is that throughout the negotiations, MEPs tried to put in very weak safeguards here and there to make sure that the worst of what protesters were claiming would be limited. But France just decided to ignore a lot of that and push for what it wanted in the original Directive anyway:
It seems that the French government cherry-picks from the recitals, ignoring the guidance that is supposed to narrow down the definition and only including the parts that widen it. For example, the clarification from the recitals that Article 17 should only apply to platforms that compete with licensed content streaming services for the same audiences (which would clearly exclude platforms like Tinder) is completely missing from the French law.
Also, the French version of the law will require upload filters — breaking another promise made by supporters of the Directive. Indeed, Reda notes that Germany had promised to work with the other EU states to make sure implementation would not require filters. France’s response, apparently, was the French equivalent of “nope.”
The French draft law clarifies that rightsholders should be completely free in deciding whether to give a license to a platform, shutting down any efforts such as those discussed in Germany to avoid upload filters by introducing some kind of mandatory licensing solution. Whenever a rightsholder decides not to offer a platform a license, it will therefore have to use upload filters. This is particularly interesting given that the German government announced that it would try to cooperate with other European countries to try to find a solution that doesn?t rely on upload filters. France, one of the largest EU Member States, is clearly not interested in such a solution.
As for the near total lack of user rights in the French transposition proposal, Reda notes that it does have a section entitled “User Rights,” but after those two words, it’s all downhill:
The only part of this section that?s faithful to the directive is the title. Remember when the European Commission claimed that your memes will be safe? Memes would not be deleted, the Commission argued, because Article 17 makes the exceptions for parody, caricature, pastiche and quotation mandatory and clarifies that Member States have to make sure that users can benefit from these exceptions in practice. It also states that platforms cannot be forced to generally monitor all user uploads (which is necessary for any upload filter) and that legal uploads must not be deleted as a consequence of implementing Article 17.
Well, France ?forgot? to mention all of that in its national proposal. The copyright exceptions under French law stay completely unchanged, although they are notoriously patchy and do not cover all situations that may arise on online platforms, such as quoting from a video. France also completely fails to ensure that users can benefit from these exceptions in practice when they upload something to a platform. Instead of ensuring that platforms do not override existing copyright exceptions in their terms and conditions, as the directive requires, the French proposal simply asks platforms to inform users about the existence of copyright exceptions under national law. The decisive parts of Article 17, which state that platforms must allow users to actually benefit from these exceptions, and that such legal content must not be blocked in the first place, are completely missing.
It?s clear from the creatively named ?user rights? section of the draft law that copyrighted content gets blocked by default and users can only benefit from copyright exceptions if they complain after their content has already been blocked. Of course, getting your reaction gif or live stream unblocked a couple of days after the fact is completely useless, which explains why very few users ever make use of such complaint mechanisms where they exist. Under the French proposal, platforms have to offer a mechanism to deal with user complaints about blocked content (so the procedure is clearly ?block first, ask questions later?).
Oh, and it gets worse. The French proposal makes it even easier for those claiming to be copyright holders to use the law to censor content, ignoring what little protections were baked into the EU Directive:
Rightsholders, unlike what the directive says, do not have to justify their initial requests to block content, but only have to respond once a user challenges the blocking of one of their uploads. During this dispute resolution, the content stays blocked. This opens the door to copyfraud, where companies falsely claim to hold rights in other people?s creations, and the original author has to complain to have their own work unblocked. Although the directive says that all decisions by a platform to block content must be subject to human review, the French proposal only requires this in cases where a user complains after their content has already been blocked. Outrageous mistakes by fully automated upload filters are likely to become a lot more common under this proposal.
To add insult to injury, when users or rightsholders want to complain about the result of the redress mechanism offered by the platform, they are supposed to turn to a new regulator called ARCOM, which is the direct successor of HADOPI, the organization best known for administering the infamous ?three strikes? rule, which could block users from accessing the Internet if they repeatedly violated copyright law. This is hardly a regulator that is known for impartially weighing the competing interests of users and rightsholders.
The French proposal still needs to be voted on, though it appears to have pretty widespread support among French officials. Once it does become law, it will almost certainly be challenged in some form or another with cases that eventually make their way to the EU Court of Justice, which will be in charge of determining if the law meets the standards of the EU Copyright Directive. But that could take years, and CJEU rulings may be more narrowly focused as well. In short, France can do a lot of damage in the meantime.
Of course, what’s most insane is that most of this damage will be to its own citizens and its own creative community who will now be greatly limited by this ridiculous law.