It Took Four Months And Thousands Of Dollars To Overturn One Manifestly Stupid Upload Block: Imagine How Bad It Will Soon Be With EU Copyright Directive's Blanket Use Of Filters

from the this-is-gonna-be-bad dept

The upload filters required by the EU's Copyright Directive are not yet in operation -- even though France seems keen to bring them in as soon as possible. So we have been spared for the moment the inevitable harm to freedom of speech and loss of online users' rights that this ill-conceived and dishonest legislation will cause. But a minor case in the Czech Republic provides a foretaste of what is to come. It concerns the Czech file-sharing and hosting site Ulož.to. TorrentFreak has the details:

Late last year, the Municipal Court in Prague ruled that Ulož must filter and block files that reference the word "Šarlatán" ('Charlatan') which is also the name of a Czech movie.

Blocking files that merely reference a particular word is a ridiculously crude approach: all kinds of material will be caught and blocked. Fortunately, the stupidity of this move, requested by the movie distributor Cinemart, was understood by the High Court in Prague when Ulož appealed against the order. However, it took four months to overturn the preliminary filtering order, during which time Ulož was obliged to comply with the lower court's instructions. Not unreasonably, it is now seeking compensation for the unnecessary work this entailed, as well for its legal costs:

Ulož is seeking 585,000 Czech Koruna (~$27,320) to compensate for the filtering and monitoring costs, and another 200,000 (~$9,340) to cover the legal costs and fees.

In itself, it's hardly a ground-breaking result. But even for this minor case, it required considerable amounts of time and money before a manifestly unjust ruling was thrown out. Imagine how things will be once the EU's new upload filters start to operate. They will give rise to many cases -- hundreds? thousands? more? -- where material is wrongly blocked, but where sites are unwilling to allow it to be posted on appeal. Most members of the public will give up at this point, deterred by the prospects of unknown costs for what are likely to be far more complex legal questions than the simple one considered in Prague. All-in-all, the isolated case of Ulož does not bode well for what will soon be the painful everyday reality of copyright across the whole of the EU.

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Filed Under: article 17, censorship, copyright, eu, eu copyright directive, prague, upload filters


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  1. icon
    Blake C. Stacey (profile), 30 Apr 2021 @ 10:37am

    Apropos, there's an interesting post today from the Organization for Transformative Works, who run Archive Of Our Own (AO3):

    Germany is working on implementing Article 17, which makes significant changes in European copyright law. This has created an exciting opportunity to clarify that fan fiction is legal under German copyright law.

    The German government has sent a draft bill to the two houses of Parliament. The final vote is planned for the beginning of May. The government proposal makes clear that nonprofit websites like the Archive of Our Own should not be required to get licenses from copyright owners, as commercial websites like Facebook and YouTube will have to do. The draft bill also proposes to explicitly legalize fan fiction, fan art, and many other transformative works, as part of the EU exception for “caricature, parody and pastiche”.

    There is one problem, and one risk. The problem is that the proposal includes language that is not required by Article 17 and that could be confusing and unduly restrictive of the ability to engage in caricature, parody and pastiche. This language restricts caricature, parody and pastiche “to the extent required by the specific purpose,” which would invite second-guessing of an artist’s purpose by courts and copyright claimants. Fan fiction, like caricature, parody and pastiche in general, has its own artistic existence and courts should not ask whether a work of fan fiction takes “too much” of the characters.

    The risk is that some lobbyists are asking for a remuneration requirement for caricature, parody and pastiche—including fan fiction and fan art—even if they are not posted on commercial websites. The consequences of a payment requirement would be perverse: it would favor commercial platforms over nonprofits such as the Archive of Our Own and Wikipedia. This is because users could freely upload fan fiction, fan art, memes etc. to YouTube or Facebook, because the commercial platform would already be paying a collecting society through the implementation of Article 17, but the same users would have to pay a collecting society if they wanted to upload the same fan fiction, fan art or memes to their personal website or to a nonprofit website such as Archive of Our Own. In practice, the law would strengthen the big commercial platforms by creating an incentive for internet users to close down their private websites, leave nonprofit platforms such as AO3, and move their activities to a Facebook group instead. [...] We believe that the law should not add an additional condition, not part of Article 17, to the exception for parody, caricature and pastiche, saying that uses should only be allowed “to the extent required by the specific purpose”. This wording only serves to muddy the waters, because it is very difficult for a user to determine the extent of the use of a work that is “required” for the purpose of fan fiction, fan art, and other transformative uses. Likewise, we believe that the law should protect individual fans and noncommercial websites, and fight against the dominance of Facebook and YouTube, by rejecting a compensation requirement for the exception for parody, caricature and pastiche.


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