Günther Oettinger presented the proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on copyright law in the Digital Single Market on 14 September 2016.https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52016PC0593&from=EN The revised Directive is part of the European Commission’s Digital Single Market (DSM) strategy. This Directive supplements the Copyright Directive https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32001L0029&from=EN – known as InfoSoc – which has been in force since 2001.
The public debate and criticism of the revised Directive initially related to Article 15 (previously 11) – the ancillary copyright for press publishers – and subsequently even more so to Article 17 (previously 13). The latter, the criticism of Article 17 (previously 13), became known under the keyword of ‘upload filters’, which are intended to provide the automatic content recognition of copyright-protected material in order to close the ‘value gap’, the turnover gap of the creative industry on the web.
We are against the binding and blanket use of automatic detection systems such as upload filters in order to detect copyright infringements, and our opinion is based on the following considerations:
- Upload filters are not only prone to errors, they are above all incapable of
- understanding the context of the use of the copyrighted material. The reason for this is that there are also legal ways of using copyrighted material beyond the scope of acquired user licences. The best-known form of use is citation in journalism, science and education. Here, parts of copyrighted material are quoted in order to arrive at opinions and positions in public communication. There is also the artistic use of copyrighted material, e.g. in parody, a collage or similar. And there are also types of use in which the copyrighted material that is used is completely irrelevant for an individual’s own publication, for example when uploading a video of a rally with music playing in the background. Upload filters are not capable of identifying such permitted types of use with 100 % accuracy because they do not understand the context.
- There are cases of nested types of use that cannot be recognised by upload filters either, e.g. a TV programme that uses a cc-licensed song correctly, but subsequently licenses the entire programme. This has led to numerous cases whereby the actual creators could no longer use their own song and were unjustifiably blocked. The bestknown case in Germany was a campaign song by the feminist initiative Pinkstinks: https://www.spiegel.de/netzwelt/web/pinkstinks-video-gegen-gntm-gesperrt-ein-vorgeschmack-auf-die-upload-filter-a-1197172.html because German broadcaster RTL used the campaign’s freely available song in one of its programmes, the campaign group could no longer use it themselves, since it was then only recognised as material licensed to RTL. Any dispute resolution mechanism is too slow if such issues result in a campaign launch being pushed back beyond a certain time frame. Even if one is subsequently proved right, the decision then comes too late and one’s freedom of expression has been suppressed.
On her website, Julia Reda offers a summary of times when filters have got it horribly wrong.
The rapporteur in the European Parliament for the preparation of the revised EU copyright reform was Axel Voss (Christian Democratic Union). Shortly before the votes were held in the European Parliament, he said to opponents of the reform: “This ‘nice’ fake news campaign, with keywords such as ‘censorship machine’ or ‘upload filter’, etc., where everybody jumps up without ever reflecting on the classification we established here… What we’re trying to do here now is to establish a recognition software for copyright protected content”.
Among those who responded to his comments was Sascha Lobo: “That’s like saying: get from Frankfurt to New York in 8 hours – but without flying.”
The European Parliament called for separate votes in June 2018, but then decided on the negotiating position with regard to the disputed Articles 15 (11 – ancillary copyright law) and 17 (13 – upload filters) in September 2018.
The governments of the EU Member States have stood by the position taken by the European Parliament. In doing so, however, they have, among other things, removed the exemptions for Small and Medium-Sized Enterprises (SMEs) from Article 17 at the instigation of France. This means that now all operators, from small homework portals to large video sharing platforms, should use upload filters in the absence of licensing agreements, which many cannot afford. The strengthening of creatives’ rights with respect to collection management organisations, which are supposed to act on their behalf vis-à-vis the media (Article 18 – contractual transparency), has been weakened once again. This was also the result of a deal between France and Germany in the Council.
Only once did the public learn about these negotiations between the Member States – one day before the final vote in the Parliament on 25 March 2019. Surprisingly, the investigative impetus came from German broadsheet FAZ, although, like many other press publishers throughout Europe, they had spent the preceding weeks blurring the line between editorial commentary and lobbying, above all for the enforcement of ancillary copyright law for press publishers (Article 15, previously 11). Unfortunately, there was no further examination of the background to the deal, i.e. that France was allegedly allowed almost blanket coverage of the upload filter obligation in exchange for withdrawing its objection to Nord Stream 2, which Germany was pushing for.
The result of the trialogue discussions between the institutions, which was submitted once more to the European Parliament after the coordination process between the EU Commission, the European Council and the European Parliament, was accepted without any agreement on motions for amendments. Details and a summary commentary on this final vote can be found in Martina Michels’ press release, and the document that was then adopted is now available online.
Shortly before the vote on 23 March 2019, there were demonstrations across Europe in which 200,000 took part https://savetheinternet.info/, as well as the handing over of a petition against this reform: with 5 million signatures, it is considered to be the largest ever petition within the EU.
This vote had an unusual aftermath: on 15 April 2019, the Council of the European Union adopted the EU copyright reform at a meeting of the Ministers of Agriculture when Germany voted in favour and entered a statement for the minutes. This was because the vote represented over 71% of the EU population. However, Food and Agriculture Minister Julia Klöckner (CDU) was not present at the meeting. The person responsible for Germany’s approval at the ministerial level was Katarina Barley, then Minister of Justice and the Social Democrats’ top candidate for the European Parliament.