Upload Filters Will Always Be A Bad Idea, But Germany's New Implementation Of Article 17 Is An Attempt To Provide Some Protection For Users, Which Others May Follow
from the but-what-will-the-CJEU-say? dept
The EU’s Copyright Directive was passed back in 2019, and the two-year period for implementing the law in national legislation is almost up. The text’s contradictory requirements to stop infringing material from being posted online without imposing a general requirement to monitor users, which is not permitted under EU law, has proved difficult for governments to deal with. France aims to solve this by ignoring even the limited user protections laid down by the Directive. Germany has been having a rather fraught debate about how exactly Article 17, which implicitly requires upload filters, should be implemented. One good idea to allow users to “pre-flag” as legal the material they upload was jettisoned. That led to fears that the country’s implementation of Article 17 would be as bad as France’s. But the final version of the law does attempt to ensure that automated filters — now admitted as indispensable, despite earlier assurances they were optional — do not block user uploads that are not infringing on copyright. Communia explains:
the German implementation relies on the concept of “uses presumably authorised by law”, which must not be blocked automatically. For an upload to qualify as “presumably authorised by law”, it needs to fulfil the following cumulative criteria:
The use must consist of less than 50% of the original protected work,
The use must combine the parts of the work with other content, and
The use must be minor (a non-commercial use of less than 15 seconds of audio or video, 160 characters of text or 125 kB of graphics) or, if it generates significant revenues or exceeds these thresholds, the user must flag it as being covered by an exception.
Although it’s good that this “presumably authorised by law” use is enshrined in law, the actual limits are absurd. For example, the name alone of the EU Copyright Directive in German is longer than 160 characters. Copyright holders can still challenge the legality of material, but platforms have to keep the uploads online until the complaints have been reviewed by a human. As former Pirate Party MEP Julia Reda writes on the Gesellschaft für Freiheitsrechte (Society for Civil Liberties) site, there’s another feature of the new German law that might help keep upload filters in check, at least a little (original in German, translation via DeepL):
In order to enforce freedom of expression and artistic freedom against upload filters gone wild, the draft law provides for a right of association action for non-commercial associations dedicated to protecting the interests of users. These associations can take legal action against platforms that repeatedly block legal content. In addition, users will be able to claim damages against false copyright claims. The Society for Civil Liberties will use these possibilities if it becomes necessary.
Those are important new options for getting material back online, and discouraging over-blocking. Reda notes that there is also good news for popular online activities such as caricature, parody and pastiche, which will be permitted without restrictions:
This copyright exception includes memes, remixes, mashups, fan fiction and fan art. The German government’s draft proposal was to restrict this right to remix in the German copyright reform, although it was adopted as mandatory at the EU level as part of Article 17. The German government’s proposal that these uses should only be allowed “provided that the extent of the use is justified by the specific purpose” generated an outcry in the fan fiction community. This has apparently had an effect, because the [German parliament’s] legal committee has removed this restriction. Fans in Germany can now look forward to a solid legal basis for fan art and remix culture.
The new German copyright law also brings in copyright exceptions for online teaching, and text and data mining. Cultural institutions such as libraries or archives will be permitted to make their collections available online if these works are no longer commercially available. Those are all welcome, but it is the implementation of Article 17 that is likely to have the most impact. As the Communia blog post notes:
the German implementation law sets a new standard for the implementation of the [Digital Single Market] directive. This is especially true for the implementation of Article 17. With the Commission having missed the chance to issue guidance for the member states in a timely manner [discussed previously on Techdirt], other member states who seek to implement Article 17 in a fundamental rights-compliant way should look at the German law for guidance.
Since the new Germany copyright law could become the model for other EU nations as they implement Article 17 — except for France, of course — it’s good news that it has a number of positive elements. Those are likely to prove crucial if — or rather when — the EU Copyright Directive faces another legal challenge at the CJEU, the Court of Justice of the European Union (Poland has already lodged one). The complaint is likely to be that Article 17 cannot be implemented without violating the fundamental rights of users. In that case, the CJEU will have to decide whether Germany’s innovative approach goes far enough in preserving them.