1. Upload filters: The Lord Voldemort of the Copyright Directive
Our position is the same as that held by mostly professional creatives (journalists, musicians, authors, etc.): We need better regulations, better contractual positions and appropriate remuneration – even in the digital age. Nevertheless, it can be said that the problem of creatives’ poor negotiating position is older than the Internet itself (see 6. Closing Remarks). Moreover, we all need regulation for an Internet free from discrimination, for an Internet that is open to democratic dialogue and new ideas, including strict rules against fake news, hate speech and dangerous content. We must therefore also take the perspective of individual users seriously, as well as the way in which communication takes place on the Internet today. And we must consider that, ultimately, many users are also institutions: schools, libraries, research institutions, archives and museums. Ultimately, we should not naively approach the new business models of the large platforms, which market both our personal data and our creativity while outmanoeuvring traditional media outlets with their approach to advertising, and have thoroughly upended the market in recent years.
Many professional artists are represented by their collection management organisations and publishing houses (music, film, books). This can even culminate in contracts with platforms, such as the top-secret 2016 agreement between the German GEMA and YouTube, which is not even accessible to GEMA’s extended circle of members. Other artists, journalists, scientists, but also everyday users of social networks who are not – and do not want to be – members of the collection management organisations, do not gain any advantage from extended blanket agreements such as those the CDU wanted to impose as a major part of its copyright reform. Ultimately, real-time communication can hardly be organised according to a publishing model from the 19th century. However, many of the conflicts that occurred in the copyright reform debate arose from a lack of attention to network communication itself – its possibilities, opportunities and risks. It was not possible to shake off the feeling that politics was being drawn into a huge power struggle between old and new major players, and that the interests of the market shake-out were to be asserted for press publishers and collection management organisations. The fact that some lobbyists referred to ‘quality journalism’ and others to ‘creatives ’ became more and more obvious without the interests being truly transparent in the end.
It is not only works by professional artists that are uploaded to platforms, but also the users’ own creations, not all of which are licensed. With regulations of all kinds, we should consider that on user-generated content platforms, i.e. networks that we can all use for uploads, there are large numbers of creators, i.e. people, for example, who have image rights, although they would never have them licensed, or users who only want to protect their moral rights through creative commons licences (free use subject to conditions) and are interested in the widespread distribution of their ideas, images, music and texts. Their material is also available for use in other productions, which are then sometimes used for a fee as a new programme or new contribution. Due to the new regulations, these nested types of use cannot be traced back and are ultimately directed against some of the creators themselves. This is happening today through unjustified overblocking. You cannot publish your idea, opinion or position because it has been mistakenly recognised as a copyright infringement. Such creators are not helped by downstream dispute mechanisms if they have been excluded from current debates on the web or prevented from participating in live streaming.
The all-encompassing licensing idea contained in the new Article 17 (previously 13) completely by-passes the aspect of lively and fast-moving network communication and is based on the copyright rules of the 20th century. For example, if users share tutorials with their own images on older technical topics from the fifties, game programs from the eighties or political documents (flyers or postcards from 1968, which, from the beginning, were produced for non-commercial purposes – see Article 11, previously 7, etc.), there were never any collection management organisations for this, nor will there be in the future. And we already know that a party’s own creations that represent parodies, quotations, collages or other alienations which are not copyright infringements – no matter how many exceptions we write in the text – cannot be detected by filters. Filters cannot read context. (Up to now, only linguistic routines can do this to some extent, with a success rate of around 70%.)
What do we find in the text of the disputed Article 17 concerning upload filters under part 4?
(4) Art 17 (previously 13) in note 272, page 122. If no authorisation is granted, online content-sharing service providers shall be liable for unauthorised acts of communication to the public, including making available to the public, of copyright-protected works and other subject matter, unless the service providers demonstrate that they have:
(a) made best efforts to obtain an authorisation, and
(b) made, in accordance with high industry standards of professional diligence, best efforts to ensure the unavailability of specific works and other subject matter for which the rightholders have provided the service providers with the relevant and necessary information; and in any event
(c) acted expeditiously, upon receiving a sufficiently substantiated notice from the rightholders, to disable access to, or to remove from their websites, the notified works or other subject matter, and made best efforts to prevent their future uploads in accordance with point (b).
The upload filter is the Lord Voldemort of Article 17. At no time did it appear in a draft of the legislative texts – nor is it formulated in the currently applicable Article 17 despite all the coordinated efforts. At one point there was a reference to technology (in the Commission’s 2016 draft), then to automatic means, and now we have a version that refers to the ‘best efforts’ (in accordance with industry standards). Many experts have correctly interpreted this as follows: this is not a solution without an upload filter as full licensing is not a genuine alternative.
At the same time, the current solution is even a potential goldmine for Google (YouTube) because in the future, Google can sell its good industry standard as upload filter licences to all small platforms, since nobody is developing such technologies as a side line. (The development of the current YouTube Filter Content ID cost 100 million dollars.) For smaller firms that are more than three years old, the requirements of the Directive mean huge investments or even the end of the company. Before the trialogue, the exception to the filtering obligation for start-ups was still in the text, but since the consultations in the Member States, this exception has also disappeared.
The actual aim of Article 17, namely to close the value gap, i.e. enable better remuneration of creators on the web, is not directly anchored in the Article. It also remains unclear whether these threats – which endanger network communication as a whole – are intended to lead to better remuneration of those who are not members of a collection management organisation in favour of blanket licensing agreements.
2. Better contractual position of creatives for better remuneration
The contractual position and therefore the remuneration of creators is only dealt with in Articles 18–20 (originally 16-18), not in Article 15 (11) – ancillary copyright for press publishers – or in Article 17 (13), the Article on upload filters as a problematic means of choice in order to reduce the loss of turnover for creative individuals. After the trialogue, the outcome of Article 18 (previously 14) was worse than before. Artists have again been deprived of the opportunity to submit an inquiry to third-party licensees and – in order to create the necessary transparency regarding their contracts and their implementation – they only have the possibility once more of turning to their publishers or collective organisations if they want to obtain information on further contracts with third parties that contain rights of use to their own works. Why have new information rights that were still in the text in the autumn of 2018 disappeared? With a new right to renegotiation (bestseller clause), which is regulated in Article 19 (previously 15), artists finally also need good quality information about their complex contractual situation, which has now been restricted again. Even if myths about the better contractual position of creatives continue to be spread, some new opportunities have long since disappeared from the adopted legal text.
3. What do journalists have to gain from ancillary copyright law?
The same applies to the mode of operation of Article 15 (previously 11), which has often been defended by invoking an improvement in the work situation of journalists. So why then have the mostly ‘bad’ total-buy-out contracts (without any opportunity for renegotiation or subsequent own use) not been prohibited in the considerations or in the articles? There is no mention of anything in the text to suggest secure and improved remuneration for journalists. Moreover, it was decided that the Member States should take responsibility for ensuring that they are fairly remunerated. Article 15 (now 11) contains no other provisions. For this reason, the International Federation of Journalists rejected the final version in a press release in February 2019 (later it made proposals, but no changes were voted on): Nobody needs a European Copyright Directive for such lukewarm regulations for journalists. In Germany, more than 8 million euros was paid in lawyers’ fees in order to enforce the ancillary copyright law, which had previously been in force in Germany and had failed. And, in the end, Google received a flat-rate licence free of charge.
4. Who are the users?
Users also have rights, not only basic rights such as freedom of opinion and freedom of the arts and sciences. We have many institutional users such as libraries, archives, museums and educational institutions – sometimes they are also rights owners, for example when a museum creates reproductions of its collections. They do not have any budget for the administration of large licences, but the exceptions do not completely exempt them from licensing.
One of the aims of this Directive was to harmonise European copyright law, including its exceptions, which is not achieved by this text and, unfortunately, is hardly ever discussed in the public debate. All of the exceptions are full of loopholes and opt-out clauses for the Member States. This is not the way to support European cultural heritage, digitisation for learning or young researchers. Nor is this the way to deal with digital issues in 2019. Even today, a museum cannot show much of its collection on the Internet. According to this Directive, we have almost the same situation as before – for example, when it comes to processing cultural heritage.
5. How can we regulate platforms and for what purposes?
Those on the left want strong regulation for large (!) platforms, i.e. the new players, but implementing just one of our aims (a digital tax) will only go so far in achieving this.
We must also concern ourselves with conditions of employment that are fit for human beings and the principles of democratic societies. We need a new check of the ethics of algorithms. This involves automatic measures that have been designed for collaboration and communication – and this applies to platforms that work with user-generated content (UGC) and those of many users whose own content and ideas are published. Algorithms in use here should be transparent for everyone since we cannot allow any programmed discrimination in technical routines.
We should follow one rule: technology should never take control of, or decisions relating to, legally protected interests such as freedom of speech. This does not affect direct technologies which are used for better business processes such as search functions, translation software, etc., and may continue to be treated as a business secret and a company’s specific know-how. There is also a huge need for discussion on this matter, which is also being continued in the EU, especially in the new legislature.
For those who are even more interested in such political strategies, we recommend – as a quick introduction – the Top 10 Principles for Ethical Artificial Intelligence by Christina Colclough, the Director of Platform and Agency Workers, Digitalisation and Trade UNI Global Union.
In the final stages of the – especially in Germany – hotly debated issue of the upload filters, many alternative solutions were discussed. Suddenly, the Conservatives in Germany also proposed flat-rate licences and allegedly do not want to implement Article 17 (13) – which Oettinger, in turn, does not consider to be in line with EU standards and would result in penalties.
However, flat-rate licences are already possible today without this Directive, as this is the job of the collection management organisations and large companies operating in the cultural and creative industries anyway – if that is what they want. But we know that they often have no real interest in offering such solutions (e.g. Hollywood and other big players) because they earn more money with individual purchases – and other business models, such as Netflix or Amazon Prime. Besides, flat-rate licences are only a solution for large publishing houses and collection management organisations and their creative staff. No Conservative can really explain why only the current versions with the upload filters were approved when everything is supposed to lead to a N&TD mechanism (Notice & Take Down, when the creator can submit an application preventing the publication of copyrighted material). This reform would not have been needed for that. It will thus be interesting to see what will actually be proposed here for national implementation.
It is fundamentally wrong to reduce the copyright debate to the conflicts between modern platforms and professional creatives. This is only one aspect and the solutions are not satisfactory if we look closely at the text.
There are many other alternatives for a modern copyright law, such as a radical reduction of the protection period, but this is a discussion for the next few years, not for the next few days.
6. Closing remarks
After three years spent following the development of this legal act, not only Article 15 and 16 (the outright expropriation of the creators, which is probably why this was kept quiet at all costs), but also 17 (previously 11, 12, 13) should not have been approved. Furthermore, the dismantling of copyright contract law in the subsequent articles and the timid exceptions were reason enough to reject the Directive even beyond the disputed Articles.
However, by then separate votes were no longer possible. No alternative options were considered.
After all the media debates, it can nevertheless be stated that the problem of the poor negotiating position of creatives is older than the Internet itself. It all began 200 years ago with the emergence of the art market, the liberal arts, which due to dependencies on the Court and patronage now operated with publishing houses, galleries, etc. The invention of copyright law is still quite recent and, to a large extent, dates back – with the Berne Convention – to 1886. With the exception of Tunisia, this was a truly European event at the time. Although American copyright law has come closer to the European version, it includes many more references to fair use. It is interesting for today’s debate that – with reference to Art. 9 et seq. and 17 of the Berne Convention – it is still the exclusive right of the creators to say whether and how they want to make use of their works. A kind of compulsory licensing, as tends to be provided for in the new Copyright Directive, especially by Art. 17 (previously 13), reverses the entire copyright law and is also questionable in light of the applicable aspects of the Berne Convention.