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.