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 In the first instance, potential copyright violations should not be published.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.