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.

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Comments on “France, As Promised, Is First Out Of The Gate With Its Awful Copyright Directive Law: Ignores Requirements For User Protections”

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This comment has been deemed insightful by the community.
That One Guy (profile) says:

France: For when you thought it wasn't possible to screw up more

Well, it will be interesting to see which companies are stupid enough to stay in the country and which ones will be smart enough to bail before they find themselves in ‘damned if you do, damned if you don’t territory’ where no matter what they do they’ll still lose. Of course the large ones may decide to eat the costs if that’s the price of killing off any potential competition, and the realization by the regulators that france has effectively enshrined the likes of Google and Facebook as the only platforms available should be worth a few chuckles at least.

Silver lining(of sorts), french regulators might very well get their goal of ‘cultural sovereignty’, as any platform that doesn’t absolutely have to be in the country and is run by people with working brains gets out as quick as possible and geoblocks the country to be safe, ensuring that the only ones left to offer ‘culture’ in france will be those that live in the country.

This comment has been deemed insightful by the community.
Anonymous Anonymous Coward (profile) says:

Re: France: For when you thought it wasn't possible to screw up

I can’t wait to see what Frances’ reaction will be when their next upcoming generation finds out that some culture, culture they would like to be immersed in, exists outside of their country (I should live so long). Or worse, that the only culture they know, due to these restrictions, is what is produced in France and that it is less than compelling. (Makes one wonder what their history books will look like, or what students of say art or music history will or won’t learn?)

Then, that generation will find out how hard it will be to change these laws as they will spend their next 20+ years gaining enough influence to have sufficient impact to overcome the entrenched bought and paid for positions currently being taken.

Thad (profile) says:

Re: Re: France: For when you thought it wasn't possible to screw

I can’t wait to see what Frances’ reaction will be when their next upcoming generation finds out that some culture, culture they would like to be immersed in, exists outside of their country

If you’re waiting for the French to recognize outside culture as equal to their own, I think you’re gonna be waiting a lot longer than a generation.

Wyrm (profile) says:

Re: Re: Re: France: For when you thought it wasn't possible to s

Not sure how much sarcasm was in that comment, but the younger generation is already pretty open to outside influence. The older generation, in particular those who hold most of the political power, is the one that is reacting badly to those foreign influences.

Add to this the large "author’s right is sacred" frame of mind, and a willingness to cater to the large "cultural industry" (an oxymoron in my opinion) and you have a law that completely ignores what rights the people have in the matter.

You only have to listen to any of the ministers of culture (former or current) to get an idea about their priorities. Some of their speeches are egregiously condescending, borderline contemptuous for the public. Listening to them, authors are superior beings that bestow their art to the masses and must be protected from the rabble that might pirate their work. Although these same ministers’ actions somehow tend to subordinate the authors to the will of their producers, who are the ones with the real influence.
It’s a mess, both in concept and execution. Then, they yell "cultural exception" like that’s supposed to excuse everything.

That One Guy (profile) says:

Re: Re: Re:2 France: For when you thought it wasn't possible

Not sure how much sarcasm was in that comment, but the younger generation is already pretty open to outside influence. The older generation, in particular those who hold most of the political power, is the one that is reacting badly to those foreign influences.

I wonder if that’s part of the reason for the insanity, the older generation seeing that the younger one is more open to non-french culture and lashing out in an attempt to force them back into focusing if not only then at least primarily on french stuff.

Scary Devil Monastery (profile) says:

Re: Re: Re:4 France: For when you thought it wasn't p

"Wait till the backlash comes. You’ll think the Yellow Jacket protests were a picnic compared to what’s coming."

I sort of doubt the french politicians will listen to the protests. The only thing which will move a french politician is a 12-meal dinner offered by some prominent cultural or media figurehead or the threat of being drowned in cowdung by a few irate peasants.

Pretty sure the french will end up with the internet version of being that one station all the trains pass without stopping. They’ll be able to browse anything in english as long as they choose to visit the .uk, .us or .ru domains…but they’ll be online have-nots by the time they discover this legislation was too intolerable.

Scary Devil Monastery (profile) says:

Re: Re:

"Does the Internet contain instructions on how to build a guillotine, and how soon can one be erected outside the French parliament."

I doubt that will happen. Now if this legislation threatened the same disaster for the french agriculture industry as it does for the french IT industry the french parliament would be under ten feet of manure tomorrow and vote to repeal this mess the day after.

Sadly, however, the younger generation only has votes. Rarely enough pigs to amass sufficient excrement to make a political statement with, nor a brewery capable of producing enough bottles to render the freeway in and out of Paris impassable.

This mess will last exactly for one term of office until the successor abolishes it and blames the previous administration for being a technophobic set of luddites, despite having voted in favor at a time at which they can now be very happy they were not the ones in executive power.

Scary Devil Monastery (profile) says:

Re: Re: Re: Re:

"Are you so sure, because if the law does severe damage to peoples use of the Internet they will be annoyed, and in need of something to do to replace their Internet time."

Fairly sure. French politicians are well inured to ignoring the views of university students and the generic citizenry. The only reason france has ridiculous agrarian subsidies is because farmers discovered that running up a ten-ton fertilizing machine and drowning politicians exiting the parliament in well-fermented shit was the only way to get the political ball rolling.

If all you’ve got is riots in the streets and a bunch of demonstrators hosed down with mace it’ll just generate headlines for a few days then die out.

The usual procedure when france adopts some insanely self-harming law is just that the current administration sticks with it to save face and the successor who is eventually forced to confront it then blames it all on the previous administration.

Look at HADOPI. It’s a total clusterfuck which has produced NONE of the desired effects while being a solid embarrassment to every french administration unfortunate enough to inherit it.

But since it doesn’t do enough harm to the citizenry to actually overturn the ship it just gets quietly ignored with successive cuts in the budget slowly choking it out of practical existence.

THIS implementation of directive 17, however, will seriously harm french industry and successive administrations will try to rewrite it until they finally realize that until they abolish it completely they will remain a third world online.

As some people pointed out, part of the reason the french hang on to this is because they haven’t ever accepted that the lingua franca of the world is english now. Hence why they see the forced exile of every anglo-saxon IT industry as a positive.

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Anonymous Coward says:

Re: Re:

I didn’t even post to this thread.

For the record, I support ultra-strong copyright protection for a period of five years, at which point all works should enter the public domain to allow creative websites to monetize it and build commerce and our tax base.

Most of my work sold most of its copies during the first five years, and was replaced by other work after that. In fact, new works didn’t change the sales figures at all. Whatever was created most recently sold. If anything, artists should sell their entire catalog on a thumbdrive directly to their audiences, with very strong copyright protection for five years, of course.

I’d hardly call that "maximalism." The indie doesn’t need 88 years of legacy the way the big corporations do, but those first five years are a big deal. I even had success offering something for free if people waited but charged them for instant delivery. There are ways to make copyright work for everyone. Lower penalties like that for an ASCAP violation or for actual damages (construed moderately) would also work.

Please don’t confuse me with the maximalists as I am not one, and I have very rarely enforced my copyrights relative to how often I could have, and still could.

Anonymous Coward says:

Re: Re: Re:

"I didn’t even post to this thread"

Like… I don’t fucking get this. The original post of satire, if in poor taste, was already hidden. What was the point of posting that you haven’t posted, exactly? Because you think people care? Because people think that a pseudonym sexually aroused by copyright is going to cause en masse destruction of copyright enforcement? What was the point beyond drawing attention to something that, had you not chosen to concern troll for a pseudonym, would have just been hidden by one line of grey text and nobody would have been any the wiser?

This comment has been deemed insightful by the community.
charliebrown (profile) says:

Copyright In General

I know this article is about France but I’d like to mention this: The last three weeks, I have been researching copyright laws, primarily the Australian one, because I am Australian. And, quite frankly, the laws are so convoluted and twisted that ….. well, after reading all I have (including many actual laws, not just people’s interpretations/summaries of them), I have quit!

Exceptions are so narrow as to be useless. Material where the copyright has "expired" after so many years, still has "underlying rights" that don’t expire for decades still. And forget culture: "Art" is so old by the time it enters the public domain that it is completely irrellevant to all but historians.

Anonymous Coward says:

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

Really, Julia? That’s "crazy" to you? This mentality is something you find surprising? Can’t imagine where they would have gotten this idea? It strikes you as abnormal?

Anonymous Coward says:

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.

So in theory one could claim the rights to all content produced by the French government, and it would have to be taken down until the dispute is resolved? And, also theoretically, someone else could make a similar claim once that initial dispute was resolved, at which point the content would have to be taken down again? Asking for un ami.

Anonymous Coward says:

Isn’t it about time that all govts and courts admitted that their only concerns are handing the Internet over to the Entertainment Industries snd stopping the general population, everywhere from having the ability to find out exactly what all these fucking asdholes sre up to? While politicians were helping all their friends to get massive incomes while keeping as mere plebs on slave wages and slave conditions, things were fine. As soon as we had the ability to check on them all, things changed and it became obvious that wasn’t liked and which organisations would help stop the flow of info. Because the industries are helped in every possible way by those above, giving names in return found during surveillance for ‘copyright infringement’ (yeah, right), it wont be long before the Internet becomes a ‘permission only, paid for’ service and all the things deemed ‘bad’ atm ( like torrent files) will become the best thing ever!

Scary Devil Monastery (profile) says:

France is always keen on demonstrating the bad ideas in action..

Just goes to show, we owe it to the french yet again, to demonstrate in every possible way just WHY shit legislation is considered shit. In order to do which they are willing to sacrifice most of their IT sector and force their entire younger generation to get used to the idea that the .fr domain is dead.

I think we owe them a minutes worth of silent respect here, for boldly going where no one sane would tread.

Anonymous Coward says:

Can I start filling copy write claims on all France’s gov sites? If the system is largely automated the sites probably would all end up blocked. At that point the gov would have to file protests against all the claims and wait to be unblocked. If I didn’t protest further would I be legally liable? How long do you think it would take before the government realized their sites were blocked and took action?

That One Guy (profile) says:

Re: Re:

Nice idea, but I can all but guarantee that government sites(and likely the sites of those that own the various politicians) will, if they aren’t already, be on a list of ‘claims made against this site will automatically be discarded’.

Can’t have the government/nobility having to deal with the same laws they’ve foisted on the public after all.

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