A year ago, EU copyright law was reformed under strong protest and with a narrow majority in the EU Parliament. Germany is still working on implementation, but civil society is already preparing to fight the directive in court. EURACTIV Germany reports.
Last Friday (17 April), the EU copyright reform celebrated its first birthday. Even before it was decided at the time, it achieved something revolutionary: national media suddenly began to report in detail on the European Parliament.
An EU law was debated on television in prime time. People took to the streets: on 23 March last year, over 170,000 people demonstrated against the reform across Europe, under the slogan “Save Your Internet.”
Despite all this, it was adopted, along with Article 13 (now 17), the biggest thorn in the side of critics. Its official goal: to stop content theft. Whoever creates something should be fairly paid for it.
While there was little controversy around the underlying objective, there was criticism of the implementation. Article 17 makes platforms (YouTube, Facebook etc.) responsible for users uploading stolen content.
Too much material
It happens all the time: remixes, top ten videos and film analyses use content without paying for rights. So if platforms can be punished for this, they must prevent such content from being uploaded.
But how? On YouTube alone, 300 hours of video material are uploaded daily, and to view all this would require legions of employees.
Or one uses software that automatically scans content, identifies stolen material and prevents uploads. Nicknamed the “upload filter,” this solution became the object of hatred from critics who feared that even legally uploaded content could be suppressed, because no software could perfectly distinguish between legal and illegal content, but also because authorities might be tempted to use these systems for censorship.
However, the government will hardly be able to keep this promise, says Julia Reda, net scientist and former MEP (Pirate Party Germany, now independent) in an interview with EURACTIV Germany. She expects upload filters to become mandatory by June 2021, as manual viewing of all uploads is simply not possible.
In fact, a third alternative, a licensing system, is under consideration: platforms could pay in advance for user rights. For example, YouTube could buy a “Universal Studios” license, and from then on users would be allowed to cut excerpts from Jurassic Park into videos. The CDU had already considered such a system.
In practice, such a system could only prevent upload filters if flat-rate licenses were prescribed by the state for absolutely all content. There are also legal concerns here, because such a blanket exception would possibly violate EU law. (However, this is a point of academic debate, and there are also voices saying that European law would allow this.)
Reda sees the even greater hurdle in film industry lobbying. Some studios would not be satisfied with license fees, and simply do not want to see their content on platforms.
Defence through strategic litigation
Reda sees European governments facing a dilemma because of the “most obvious contradiction” of the directive. On the one hand, platforms must do “everything technically possible” to prevent illegal uploads, but on the other hand, no legal uploads must be prevented.
The latter was added late in the legislative process in order to calm the angry public and save the very narrow majority for reform.
According to Reda, a key problem is that the ability of automatic upload filters was overestimated at the time. Even the most modern systems based on artificial intelligence cannot distinguish between legal and illegal uploads. “There is no technology that is capable of doing this,” she says. Then there would be illegal collateral damage, according to the text of the law.
To arm citizens against such and other harm arising in connection with copyright, Reda launched the “control ©” project together with the Society for Civil Rights (GFF) to “celebrate” the directive’s anniversary.
In a video message, she called on citizens to bring such cases to their attention. GFF would help the injured parties to go to court in cases that are particularly significant in terms of fundamental rights, in order to work towards an interpretation of copyright in terms of “freedom of communication” (i.e. freedom of opinion, press, information, science and art) through “strategic litigation.”
Axel Voss: “Anyone who wants to cheat does so”
The question remains as to why the directive went through despite ambiguities or, according to Reda, “inherent contradictions.”
Apart from the overestimation of technical possibilities for upload scanning, the legislators simply ran out of time, Reda thinks. 17 April 2019 was just before the EU elections and the end of the legislative period.
Axel Voss (CDU) also said the latter in an interview with EURACTIV Germany. The MEP was the rapporteur for the directive at the time and became the public face of the reform.
“If I had had more time, I would have put in another round to address even more strongly the fears and concerns related to the directive,” said Voss.
He agrees with Reda on another point: without technology it won’t work. “We have to decide. If we want to have both mass upload platforms and copyrights, we need technical solutions,” Voss said, making it clear that he himself is also against upload filters.
Instead, he cites “identification software” as a possibility. It would not be automated, but would work on the basis of author input. Whoever creates content would have to send a digital signature of the content, which would then be compared with signatures of content uploaded later.
Voss knows that this could be cheating, but “for every law, the rule is: if you want to cheat, you do it.”
Edited by Samuel Stolton