Germany Drops Idea Of 'Pre-Flagging' Legal Uploads, Which Could Have Stopped EU Copyright Filters Blocking Memes, Parodies, Quotes And Creative Commons Material

from the that's-not-a-bad-approach,-better-get-rid-of-it dept

Techdirt recently wrote about how copyright companies are not satisfied with the already one-sided EU Copyright Directive, but want to tilt the playing-field even further in their favor. In particular, they want to ignore one of the few safeguards that the new law includes: the requirement that legal content must not be blocked by the upload filters that will inevitably be introduced by Article 17 (formerly Article 13). The bad news is that the German government is planning to give the copyright maximalists what they want in its national implementation of the new EU legislation.

Julia Reda reported in an article on Heise Online back in July that the initial proposal from the German government had some attempts to limit the damage from upload filters (original in German). For example, it introduced the sensible idea of letting users “pre-flag” as legal the material that they upload. In this way, things like memes, parodies or material released under a Creative Commons license would not be blocked by the upload filters. As Reda explained, the idea was not without difficulties, but at least it provided a way for uses of copyright material that people believed to be legal to be signposted before they were blocked automatically. In a depressing turn of events, the latest proposal from the German government ditches this innovative approach almost completely. Reda writes on Netzpolitik.org (original in German):

According to the Ministry of Justice’s new plans, [online] platforms should be obliged to check content for copyright infringements in real time, while it is being uploaded. Only if this real-time check detects copyright-protected content for which the platform has not acquired a license, will users then be given the option of either marking the content as permitted or canceling the upload process. In the first instance, potential copyright violations should not be published.

In such situations, the new draft law does not offer any protection against erroneous bans. The elimination of the option to mark uploads as legal as a precaution means anyone who uploads a legal quote or a parody, for example, can no longer protect themselves against future blocking requests from rights holders. Users can only complain afterwards if content has already been blocked. However, this approach does not even meet the requirements of Article 17 itself, which requires that legal content is not blocked in the first place.

Reda goes on to note that there are many cases of perfectly legal uploads being blocked by unintelligent filters like Google’s Content ID, because companies have falsely claimed rights to material that has been released freely, or under a Creative Commons license. It is also easy to imagine average users being intimidated when their uploads are immediately blocked by the system, and naturally concerned that they what they have done is seriously illegal in some way. Unless they are well versed in copyright law, many people will simply cancel the upload of their witty meme or parody, and the world will be a poorer, more boring place.

It’s pretty outrageous that the German government is ignoring the explicit requirement of the new law that legal content should not be blocked in an automatic fashion. On the plus side, this flagrant omission could make it more likely that a legal challenge to the EU Copyright Directive at the EU’s top court — something that is bound to come — would be successful, and lead to Article 17 being struck down completely.

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Comments on “Germany Drops Idea Of 'Pre-Flagging' Legal Uploads, Which Could Have Stopped EU Copyright Filters Blocking Memes, Parodies, Quotes And Creative Commons Material”

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13 Comments
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Samuel Abram (profile) says:

You know who I blame for this?

I blame the Berne Convention. That treaty made copyright opt-out instead of opt-in, and as a result, everything was automatically copyrighted, and so when the internet came into being, everybody was made into a criminal.

Personally, as digital rights people, as copyright reformers, I think our ultimate goal, our brass ring, is to reform the Berne Convention. I suggest to make copyright opt-in again, but where every nation is a signatory to the agreement, if you opt-in your copyright in one country, you opt-in to all countries.

That’s my dream © regime, anyway.

Scary Devil Monastery (profile) says:

Re: You know who I blame for this?

"Personally, as digital rights people, as copyright reformers, I think our ultimate goal, our brass ring, is to reform the Berne Convention. I suggest to make copyright opt-in again, but where every nation is a signatory to the agreement, if you opt-in your copyright in one country, you opt-in to all countries."

Here’s my own thought on the matter. Scrap copyright completely. Severely limit patents as well.

Give authors trademark rights for their works instead, meaning that what is protected is the authors right to stand as origin, and has the sole right to determine commercial exploitation of that work.

I.e. feel free to make any use of a created work as you wish but if money changes hands or you changed the author’s name then you’re in for it.

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

"In such situations, the new draft law does not offer any protection against erroneous bans… However, this approach does not even meet the requirements of Article 17 itself, which requires that legal content is not blocked in the first place."

Herein lies the problem. The law requires 100% accuracy, which is impossible. Yet, the people who are pushing for this kind of law are absolutely fine with false positives so long as it benefits the corporations that employ them. The clause about legal content always being allowed was most likely written by someone paid to believe that "legal" = "content created by a major entertainment conglomerate", and did not even consider that vast amounts of legal content produced by independents. Hence, this is a bad idea that should die as soon as possible.

As usual with these things, it’s all fine until you inject reality into the mix, then you are forced to deal with the many, many grey areas that reality presents you, and many would prefer that law is forced to deal with reality.

"Unless they are well versed in copyright law, many people will simply cancel the upload of their witty meme or parody, and the world will be a poorer, more boring place."

It’s not just about the artistic value of such things. How many memes and parodies will have been created from last night’s horrific presidential debate, for example? While I despise people who form their opinions based on memes, it’s important to get the facts out to people who missed the live event and inform them of what happened. Blocking outlets that have not been pre-approved by the incumbent candidate would be very bad, and while European politics haven’t descended to the same level as the US has yet, it’s good not to make it harder to fight back against that kind of thing.

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

If you have to lie to defend your argument/position/bill...

Why, it’s almost as though much like the ‘there are no requirements for copyright filters’ bit they lied when they said they cared about creators, and only threw the part about not impacting legal content to try to shut people up, knowing that they wouldn’t pay any attention to it if the law was passed…

Beyond pointing out that countries are openly violating the law I do see one avenue to shut the whole thing down, and that is mandatory copyright registration and record keeping. They want to make it so that platforms don’t host any infringing content, then it should be entirely on them to create, maintain and keep current a database for platforms to check to know the copyright status of a work and who owns it, and if it’s not on the database then it’s free game. As the parasites have shown that they are almost deathly allergic to actually doing any work I imagine this would cool their enthusiasm real quick, as it would require them to do something other than just collect free money rather than dumping it all on the platforms.

R.H. (profile) says:

Re: If you have to lie to defend your argument/position/bill...

I don’t know about the EU but, the United States even already has a system that something like your registry could be based on, it’s the Library of Congress. We could require all copyright registrants to submit a version of their material to the LoC and increase the funding of the LoC so that they’re able to keep up with the workload. If we were to also require that changes in registration status (sales of rights) require registration too, that would make it easier to contact everyone who needs contacting when someone wants to pay for a license for a copywritten work.

Anonymous Coward says:

To comply with this law big websites like facebook will go with the german version or the worst version .eg it,ll let content by big corporations thru on the filter, it,ll block random content, images, video,s by members of the public.thefilters will probably block all images or videos that are parody,s, fair use,
reviews of a tv show,film, by random forum users or users on social media websites.
the filters will probably be set to have a list of video,s and music by big corporations like nbc,comcast, bbc etc
they will likely block all content by random users or even small artists ,creators since they have no way of knowing if its legal or not.
Small websites that cannot afford expensive filters will probably just block
all audio, video content by users .or else shut down forums that allow comments and users to post links .
This law is a massive attack on free speech in the EU.
I Cannot see how websites like reddit could operate in the eu,
as they host alot of random video,s and images and memes uploaded by users .
A filter would have no way of looking at this content and checking is this legal,
is this uploaded by th ipholder or is it an image that has random txt on it to a meme .
websites like youtube or facebook will be ok as they have the money to build
expensive filters for the eu.

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