The Lies Told About The EU Copyright Directive's Upload Filters May Help Get Them Thrown Out In Court

from the freedom-to-conduct-business dept

Although the main fight over the EU’s Copyright Directive was lost back in March 2019, there are plenty of local battles underway. That’s a consequence of the fact that an EU Directive has to be implemented by separate national laws in each of the region’s 27 member states. Drawing up the local legislation is mostly straightforward, except for the controversial Article 17, which effectively brings in a requirement to filter all uploads. Trying to come up with a text that meets the contradictory obligations of the Directive is proving difficult. For example, although the law is supposed to stop unauthorized uploads, this must not be through “general monitoring”, which is not permitted in the EU because of the e-Commerce Directive.

As the various countries struggle to resolve these problems, it is no surprise that they are coming up with very different approaches. These are usefully summed up in a new post on the Kluwer Copyright blog. For example, France is implementing the Copyright Directive by decree, rather than via ordinary legislative procedures. As Techdirt reported, the French government is pushing through an extreme interpretation that ignores requirements for user protections. Germany, by contrast, is bringing in wide-ranging new law that contains a number of positive ideas:

a new “minor use” exception that would legalise minor uses of third party works on online platforms.

In addition, the proposal also introduced the ability for uploaders to “pre-flag” any uploads as legitimate, protecting them from automated blocking.

It limited the scope of the requirement for platforms to obtain licences to “works that users typically upload”. Platforms can meet their best efforts obligation to obtain authorisation by approaching collective management organisations and by responding to licence offers from rightsholders with a representative repertoire.

There is an irony here. One of the main reasons for introducing the Copyright Directive was to make copyright law more consistent across the EU. Article 17 is causing copyright law there to diverge even more.

The Kluwer Copyright blog has two more recent posts about Article 17, written by Julia Reda and Joschka Selinger. They look at an aspect of upload filters that could be of crucial importance in the case brought before the Court of Justice of the European Union (CJEU) by Poland, which seeks to have upload filters removed from the Copyright Directive.

On several occasions, the CJEU has thrown out blocking injunctions for violating the service providers’ freedom to conduct a business. In a recently published study on behalf of German fundamental rights litigation organization Gesellschaft f?r Freiheitsrechte e.V., the authors of this blog post argue that when ruling on the request for annulment of Article 17, the CJEU will have to balance all relevant fundamental rights, including the freedom to conduct a business. In this blog post, we will put the spotlight on this under-examined fundamental right. In part 1, we will discuss its relevance for the court case pending before the CJEU. We will examine the ways in which Article 17 places new burdens on online platforms that are fundamentally different from the voluntary copyright enforcement schemes employed by some of the larger platforms today. In part 2, we analyse those new platform obligations in light of the CJEU case law on the freedom to conduct a business and discuss the role of the proportionality mechanism included in Article 17 (5). We find that the legislator may have grossly underestimated the impact of Article 17 on the freedom to conduct a business.

The basic argument is simple. During the debate on the Copyright Directive, its supporters were deeply dishonest about how it would work in practice. They repeatedly claimed that it would not require upload filters, and denied that it would be hard to implement in a way that was compatible with existing EU laws. Unfortunately, the politicians in the European Parliament were taken in by these claims, and passed what became Article 17 without amendments.

But the case before the CJEU gives another chance to point out the truth about upload filters. The fact that they only exist for things like music and video, not all copyrightable material as Article 17 requires; that those don’t work well; and that even these flawed systems can only be afforded by Internet giants like Google. In practical terms, this means that smaller companies that allow user uploads will be unable to comply with Article 17, since it would require the use of technology that would be expensive to develop or license, and which wouldn’t even work properly. As such, a key argument in the CJEU case will be that upload filters represent an unjustified interference in the freedom to conduct a business in the EU, and should be thrown out. Let’s hope the CJEU agrees.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

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Comments on “The Lies Told About The EU Copyright Directive's Upload Filters May Help Get Them Thrown Out In Court”

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

And web services like google and facebook will simply foolow the most extreme version of article 17 ,instead of trying to make different rules for france, poland ,germany, etc
so content that may be legal in france could still be blocked because
its not legal in poland .
The people who passed this law did not consult with programmers or tech experts or the owners of small websites that maybe allow user posted link,s ,or short videos, or audio clips .
they consulted with the old legacy media companys ,music corporations
sony, etc

ECA (profile) says:

Re: Re:

I think you are close, but google/amazon Can limit country to country, IF needed.
And your comment should be more to the Fact that SOMEONE must of been PAID to get this on Every countries congress/parliament/whatever, or was this the EU group thats supposed to HELP balance the EU, thats PAID good money to Over rule any regulation, that a single country can make itself.

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

Re: Re: Re:

More like the collateral damage is functioning as intended.

Copyright Maximalists love this kind of collateral damage because it means less competition for them to compete with. Even if it’s legal elsewhere, if that more popular work isn’t on the shelf, your work can’t be overshadowed by it. If that publisher cannot secure a license, they can’t keep you from getting it. If that website can’t critique the work, they can’t inform others of your underwhelming performance. All of this means more potential (read: expected to the point of entitlement) profit for you.

Never mind that Copyright Maximalists would also do away with Fair Use outright, automatically charge you for thinking about a work, and hold all works under perpetual copyright for eternity, if they could.

This is not a case of stupidity, it is a case of malice.

Anonymous Coward says:

Some people used dishonesty to get this article17 implemented, you say? I dont believe it! Who would do such a thing? I didn’t think that the USA entertainment industries had so far reaching influence! Yeah, right! Nothing, to them, is more important! It doesn’t matter what else is completely fucked up, as long as those industries get what they want! As for being dishonest, it is in their genes. After all, they moved to California so as not to be sued for copyright infringement! Two faced fuckers!

Anonymous Coward says:

It’s an EU wide law but each government can choose to interpret it in different ways,
The problem is old legacy company’s push for laws like all content must be filtered, only company’s like Google , Facebook can afford
complex filters, small local websites that deal with local content will shutdown,
Eg a website that hosts French folk music
that may not even be registered with music
copyright organisations
We already see youtube ignores fair use
Many videos are removed because small
creators have not the money or resources
to use the legal system to fight some
Dmca takedowns

techflaws (profile) says:

Germany, by contrast, is bringing in wide-ranging new law that
contains a number of positive ideas:

But of course, also as usually our government is brownnosing rightsholder and publishers (cause otherwise they could write something bad about them) by letting them get through with their ridiculous demands for the Leistungsschutzrecht: users are allowed to quote/use without compensation to the rightsholders:

  • 15 seconds of a video
  • 15 seconds of a song
  • 160 characters of an article
  • 125 KB of a photo
That One Guy (profile) says:

Re: From the country that brought you GEMA...

Makes sense, I mean I can’t imagine why anyone would ever want or even need to use more than that, and if they do why that’s when the super-duper reasonable licensing fees/threats of massive legal fines for unauthorized use will come into play.

Outline exactly how much can be used without having to pay for it and in the process effectively make it open season on anyone who uses more without paying for it, context be damned, not exactly the most subtle when it comes to shanking the public I see.

Also why do I get the feeling that the third one is an attempt to sneak a link/snippet tax into the law since previous attempts have fallen flat…

Rekrul says:

Re: Any chance of mankind waking up before it's too late?

Any chance of mankind waking up before it’s too late?

This blundering around by legislatures and legal systems will have major impacts.

Those driving it don’t understand what they’re doing.

What could go wrong?

Is there a way to get a lot of people realise, so they can fix it?

Well, 75 million people voted for the guy who sat on his ass and let a pandemic rage out of control across the country, so I’d say the chances of there being any great awakening any time soon are pretty much nil.

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