Upload filter: The new copyright concerns everyone – digitally

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It’s winter, a complicated legal text is being published, and hardly anyone is satisfied. This is reminiscent of 2019. At that time, MEPs haggled for months over the reform of European copyright law, while powerful corporations and lobby groups tried to assert their interests. More than 100,000 people took to the streets to protest against upload filters and for the free network.

Two years later, history repeats itself at the national level, but with one crucial difference. While the EU Copyright Directive politicized young people en masse, the usual suspects are primarily interested in the German implementation: civil rights organizations, network politicians, lawyers and lobbyists. This is a shame, because the planned law affects everyone who uploads, shares or simply views content on the Internet – i.e. millions of people in Germany. The most important answers at a glance:

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Who just decided what and why?

The Federal Cabinet has approved a bill to implement what the EU launched in spring 2019. The EU Copyright Directive provides a framework that all member states must translate into national law. The deadline ends on June 7, 2021, so time is of the essence. At its core, the EU reform redistributes responsibility online. Upload platforms are now themselves liable if users upload content that violates copyright law. Therefore, they must acquire licenses or make the best possible effort to prevent copyright infringement.

Why does copyright have to be reformed at all?

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For many years the topic has only triggered negative emotions. Whoever you ask, almost everyone scolds. Everyone can agree on at least one thing: keeping the old copyright law is not a solution either. After all, it comes from a time when AOL was still advertising with Boris Becker. Back then you had to dial into the Internet, there were no smartphones, and instead of uploading videos to YouTube, you burned music onto CDs. Adapting the legal situation to the reality of the Internet is therefore overdue. Creatives should be able to share in the revenues of the platforms in order to be able to live from their work in the digital age.

Why do those involved argue so bitterly?

Copyright is only marginally about the rights of authors. Above all, it is about the interests of the users and large platforms. In short: there is a lot of money involved. On one side are the music and film industries, publishers and other rights holders. On the other hand, there are companies that still have an extra zero on their annual turnover: Google, Facebook and other tech companies from Silicon Valley. Their ideals are far apart: the exploiters want to see money for every use of a copyrighted work. The platforms want the most far-reaching exceptions possible.

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How does Germany intend to implement the reform?

The current bill was preceded by three drafts. With each version, the federal government continued to meet the wishes of the exploiters and publishers. Now the Chancellery and the CDU-led Ministry of Economics seem to have prevailed. The “Copyright Service Provider Act” drastically reduces most of the exceptions and limitations contained in the first draft discussion that the Federal Ministry of Justice published a year ago.

What are the main changes?

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Originally, minimum limits of 20 seconds were intended for video and audio snippets, 250 kilobytes for images and 1000 characters for text. 15 seconds, 125 kilobytes and 160 characters are left of that. That’s less than a tweet, the full name of the bill alone is 220 characters. In addition, a maximum of half of an entire work may be used, and the excerpt must also be combined with other content.

This limitation goes back to lobbying by publishers. They feared that generous limits could undermine ancillary copyright law. This part of the reform is intended to induce search engines like Google to pay press publishers for short excerpts that are displayed in search results or on Google News. However, the de minimis rule only applies to individuals without commercial interests and thus not to Google.

The text of the law restricts caricatures, parodies and pastiches. They are only permitted if their use is “justified by the particular purpose”. What this is supposed to mean remains unclear. Even if that purpose exists, platforms are supposed to pay for quotations and parodies. This breaks with the applicable barriers, which 19 professors criticize in an open letter (PDF). Recyclers get a “red button” with which they can block certain uploads immediately if there is a threat of significant economic damage. Only “trustworthy rights holders” are allowed to press the button, with the platforms themselves deciding who is included.

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What about upload filters?

The federal government’s draft leaves many questions unanswered, but it gives a final answer: The CDU is breaking its promise to implement the copyright reform without an upload filter. Instead it should be now the coalition partner SPD be to blame – who was also against upload filters. This leads to the strange situation that two parties are promoting a law whose consequences they wanted to prevent. Because in order to meet the requirements, platform operators have no choice but to screen content before publication. These filters are already in use, but on a much smaller scale. Even so, the machines keep making mistakes and blocking legal content.

Are there any good aspects too?

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In addition to points of contention such as ancillary copyright law and the upload filters, the 171 pages contain many useful changes. In fact, power and money are unevenly distributed on the internet: a handful of large platforms set the rules and earn billions, while many artists drive taxis. The law strengthens the rights of cultural workers and introduces, for example, direct payment claims for authors. Creatives should be given the right to classify in order to enforce their claims collectively. There are modern regulations for text and data mining as well as exceptions for education and science. However, the barriers for schools, universities or libraries have been reduced significantly compared to previous drafts. That could create legal uncertainty and make digital education more difficult.

What’s next?

Before the law comes into force, the Bundestag and Bundesrat must agree. This is not a sure-fire success: a number of network politicians and digital experts in the governing parties are also critical of the draft. If the Union and the SPD are in agreement and can overcome opposition resistance, it is still not clear how the law will work. It contains a number of unclear formulations that the courts will probably decide on in the end. Even the question of who is actually meant by platform could become a matter of dispute. Youtube should be included, Wikipedia not, but whether Twitter should be included is not yet agreed in the Ministry of Justice.

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But judges should not only be concerned with the interpretation of the copyright reform. In autumn, the European Court of Justice will judge whether upload filters are compatible with the EU Charter of Fundamental Rights. Poland had sued Article 17 of the EU Copyright Directive because the required filters violated the fundamental right to freedom of expression and information. If the European Supreme Court agrees, the copyright dispute will probably go on for a few years.

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