LEAK: German government edges towards agreement on copyright law

A sign at a demonstration against upload filters in spring 2019. [EPA-EFE | Omer Messinger]

UPDATE: This article has been revised following news that the German government has postponed the adoption of the copyright directive. 

The German implementation of the European copyright reform is edging towards adoption, despite having been postponed from cabinet talks on Wednesday (27 January). The most recent draft, obtained by EURACTIV, once again strengthens rights for authors and publishers. EURACTIV Germany reports.

Upload filters appear to be inevitable, as platforms will be forced in the future to check content for copyrighted material as soon as it is uploaded. With the vast amounts of data uploaded to YouTube or Facebook every day, this is only possible with automated software.

The text had been due to be adopted by the German cabinet on Wednesday, but on Tuesday evening, a government spokesperson announced that talks had been sidelined. A Bundestag source informed EURACTIV that the centre-right Christian-democratic alliance decided to shelve the adoption.

This scenario brought over 100,000 people to the streets in Germany in March 2019, fearing censorship, because current software cannot distinguish with 100% accuracy whether an upload is legal or not.

Therefore, the EU Parliament included in the text that legal content should not be blocked under any circumstances. After Germany agreed, the CDU promised that the German solution would do without upload filters and instead rely on blanket licences.

According to the draft from summer 2020, platforms would buy these licences across the board, artists would be paid fairly, and users would be free to upload and consume anything. At least that was the idea.

But since then, the draft went through several negotiation loops, and the promise to do without upload filters was abandoned.

The news that Germany will not outlaw the use of upload filters was unwelcome to some.

“The German government has broken its promise to prevent upload filters. But at least it is trying to minimize the blocking of legal content,” Julia Reda, ex-Pirate MEP and copyright project manager at the Society for Civil Liberties, told EURACTIV Germany.

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Tightening of exceptions

Filters are to be used in the very first step of the upload: The platform must check whether the content is protected by copyright.

Specifically, the system will then ask two questions: Is there content here that a rights holder has already successfully declared as their property? If so, does the content fall under the exceptions provided by law? If not, do we, as a platform, have the right licence for it?

Some of these exceptions are unique to Germany. The European regulation already provided for ‘pastiche’ uses, for example, to protect memes.

Germany went a step further, and introduced a small claims barrier. Copyright-protected content should be allowed to be uploaded if it is small enough. Here, there was a tightening compared to the last draft.

Protected video and sound clips must now be under 15 seconds long (instead of 20), images under 125 kb (instead of 250), and text under 160 characters instead of the original 1000.

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“It is no longer acceptable in our view that platforms take some key decisions by themselves alone without any supervision.”
– …

Concession to publishers

The latter could be a concession to the print publishers, who have lobbied publicly against these exceptions in recent months.

In addition, the upload may only use 50% of the protected work. If all this is met, the de minimis rule applies and the content can be uploaded. However, this does not automatically make it legal, as rights holders can still sue for deletion. Another unique German feature is that authors must be paid fairly for all these exceptions, for example through licencing agreements or collecting societies.

If the upload filter gives the green light – either because no protected material was found or because the exceptions apply – the video is uploaded.

If the upload filter rejects it, it is the users’ turn to “pre-flag” it by vouching for the upload as legal, for example, because the filter did not recognise that the exceptions apply.

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More rights for authors

What is new in the current draft is now ‘trusted rights holders’ can force the deletion of successfully uploaded content even before a complaint procedure has been completed.

Until now, the rule has been that once content is “pre-flagged,” it is safe from deletion until a court rules.

The platforms’ obligation to acquire licenses for content has also been tightened. Previously, platforms were required to “use best efforts to acquire the contractual rights of use for the communication to the public of copyrighted works.” For example, they are required to accept license offers as long as the price is fair.

What is new here is that platforms must actively contact ‘representative rights holders (…) known to the service provider’ – for example, major record labels. The law comes into force on 7 June.

A Polish lawsuit against the copyright directive is currently before the European Court of Justice, but it will probably not be decided until the fall – and could once again force all countries to adapt their laws.

Edited by Samuel Stolton

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