During a pandemic and just before the US election, other issues are easily forgotten. Especially when they are as bulky as the “law to adapt copyright law to the requirements of the digital single market”. But the Federal Ministry of Justice’s draft bill deserves a second look. Because the EU copyright directive, which Germany wants to implement, is one of the most controversial legislative processes in recent years.
A year and a half ago, the reform brought hundreds of thousands of people to the streets. Their protests centered on the term upload filter. If Facebook and Youtube had to have every piece of content that users upload checked by error-prone software, freedom of expression would be at risk, they criticized.
Those who warned back then will feel confirmed today: The draft bill leaves most platforms little choice but to use an upload filter. Wikipedia, young start-ups and companies that turn over less than one million euros per year would be excluded. But Wikimedia board member Abraham Taherivand also rejects the draft. “If filter algorithms are used as proposed in the current draft, the entire free knowledge creation process suffers massively,” he says. “The interests of the users are far too little taken into account.”
It won’t work without an upload filter
All other platforms would have to make “their best efforts” to acquire licenses. But nobody can buy usage rights for all content, there are simply too many different rights holders, cultural workers and collecting societies for that. So the platforms have to use filters if they don’t want to be held liable for copyright infringement.
“Then even more data will run through the hands of the large American Internet companies, who will then learn more about all users,” said Federal Data Protection Officer Ulrich Kelber in an interview with SZ last year. “We therefore consider upload filters to be wrong and dangerous.” He does not want to comment on the current proposal because the draft has not yet been finalized. In fact, the Ministry of Justice and the Economy have been haggling over wording for months. The current version is unlikely to be final either.
A spokeswoman for the Ministry of Justice emphasizes that the draft follows the requirement of the federal government to avoid upload filters if possible. The CDU had announced that it would completely refrain from implementing it. “Humbug” called it the green politician Tabea Roessner. Now she feels confirmed: With the new draft, the government is breaking its promise. This is especially a shame for small and medium-sized companies that often cannot afford expensive locking software. “This is not only at the expense of the diversity of service providers, but also at the expense of freedom of expression online.”
Julia Reda sees it similarly, who as a MEP in 2019 was one of the most prominent opponents of the reform. “If companies are forced to use real-time upload filters, it strengthens the largest Internet companies such as Google or Facebook, which can afford to develop this monitoring technology,” says Reda, who now works for the Society for Freedom Rights. “What the Justice Department presents as an improvement is actually going to lead to massive bans on legal content.”
Successful lobbying from Google?
Reda and Rößner both ask why the current ministerial draft deviates from the discussion drafts developed in January and June in key areas. Originally, users were supposed to be able to mark content as legal while it was being uploaded in order to prevent accidental blocking. This option has now been severely restricted. The Ministry of Justice announced that the fear that the new regulation could have negative effects has been acknowledged and that the concerns will be examined. The new wording corresponds to a proposal that Google made in the summer. “There is a certain suspicion that there has been a successful lobbying on this issue,” says Roessner. Google also lobbied vigorously on another passage in the draft, which revolves around what is known as ancillary copyright.
The lobby of the press publishers seems to have a better connection to the Ministry of Economic Affairs and the Chancellery. The new law aims to give publishers a share of the income generated by search engine operators when they make press publications accessible. In the previous drafts, there was an exception for up to eight words. “Single words or very short excerpts” are now allowed. This vague formulation is likely to occupy the courts.
Criticism also comes from the rights holders. An alliance of ten associations criticized the fact that the draft bill weakens the position of creatives and collecting societies. Currently, 20 seconds of a film, 1000 characters of text and photos with a size of up to 250 kilobytes can be used. Some criticize that these exceptions are far too generous.
Some see freedom of expression as threatened. Others fear that lax regulations will harm rights holders. At least here the reform opponents were right: the Ministry of Justice cannot implement the directive in such a way that everyone is happy.