The Lies Told About The EU Copyright Directive's Upload Filters May Help Get Them Thrown Out In Court

from the freedom-to-conduct-business dept

Although the main fight over the EU's Copyright Directive was lost back in March 2019, there are plenty of local battles underway. That's a consequence of the fact that an EU Directive has to be implemented by separate national laws in each of the region's 27 member states. Drawing up the local legislation is mostly straightforward, except for the controversial Article 17, which effectively brings in a requirement to filter all uploads. Trying to come up with a text that meets the contradictory obligations of the Directive is proving difficult. For example, although the law is supposed to stop unauthorized uploads, this must not be through "general monitoring", which is not permitted in the EU because of the e-Commerce Directive.

As the various countries struggle to resolve these problems, it is no surprise that they are coming up with very different approaches. These are usefully summed up in a new post on the Kluwer Copyright blog. For example, France is implementing the Copyright Directive by decree, rather than via ordinary legislative procedures. As Techdirt reported, the French government is pushing through an extreme interpretation that ignores requirements for user protections. Germany, by contrast, is bringing in wide-ranging new law that contains a number of positive ideas:

a new "minor use" exception that would legalise minor uses of third party works on online platforms.

In addition, the proposal also introduced the ability for uploaders to "pre-flag" any uploads as legitimate, protecting them from automated blocking.

It limited the scope of the requirement for platforms to obtain licences to "works that users typically upload". Platforms can meet their best efforts obligation to obtain authorisation by approaching collective management organisations and by responding to licence offers from rightsholders with a representative repertoire.

There is an irony here. One of the main reasons for introducing the Copyright Directive was to make copyright law more consistent across the EU. Article 17 is causing copyright law there to diverge even more.

The Kluwer Copyright blog has two more recent posts about Article 17, written by Julia Reda and Joschka Selinger. They look at an aspect of upload filters that could be of crucial importance in the case brought before the Court of Justice of the European Union (CJEU) by Poland, which seeks to have upload filters removed from the Copyright Directive.

On several occasions, the CJEU has thrown out blocking injunctions for violating the service providers' freedom to conduct a business. In a recently published study on behalf of German fundamental rights litigation organization Gesellschaft für Freiheitsrechte e.V., the authors of this blog post argue that when ruling on the request for annulment of Article 17, the CJEU will have to balance all relevant fundamental rights, including the freedom to conduct a business. In this blog post, we will put the spotlight on this under-examined fundamental right. In part 1, we will discuss its relevance for the court case pending before the CJEU. We will examine the ways in which Article 17 places new burdens on online platforms that are fundamentally different from the voluntary copyright enforcement schemes employed by some of the larger platforms today. In part 2, we analyse those new platform obligations in light of the CJEU case law on the freedom to conduct a business and discuss the role of the proportionality mechanism included in Article 17 (5). We find that the legislator may have grossly underestimated the impact of Article 17 on the freedom to conduct a business.

The basic argument is simple. During the debate on the Copyright Directive, its supporters were deeply dishonest about how it would work in practice. They repeatedly claimed that it would not require upload filters, and denied that it would be hard to implement in a way that was compatible with existing EU laws. Unfortunately, the politicians in the European Parliament were taken in by these claims, and passed what became Article 17 without amendments.

But the case before the CJEU gives another chance to point out the truth about upload filters. The fact that they only exist for things like music and video, not all copyrightable material as Article 17 requires; that those don't work well; and that even these flawed systems can only be afforded by Internet giants like Google. In practical terms, this means that smaller companies that allow user uploads will be unable to comply with Article 17, since it would require the use of technology that would be expensive to develop or license, and which wouldn't even work properly. As such, a key argument in the CJEU case will be that upload filters represent an unjustified interference in the freedom to conduct a business in the EU, and should be thrown out. Let's hope the CJEU agrees.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

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Filed Under: article 17, copyright, eu, eu copyright directive, france, general monitoring, germany, upload filters, user protections


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  • identicon
    Anonymous Coward, 29 Jan 2021 @ 11:15am

    Keep up the good fight

    No mercy for the power pyramids!

    It was a good day when I decided to send money to the Gesellschaft für Freiheitsrechte.

    reply to this | link to this | view in chronology ]

  • icon
    Jojo (profile), 29 Jan 2021 @ 11:18am

    It’s good to know that the copyright Directive for Europe is as unitary and agreeable as the Protestant Reformation.

    reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 29 Jan 2021 @ 1:07pm

    Funny except

    That parts of our justice system that Are not supposed to monitor the USA, but to look at the rest of the world, Did find a way to look at the USA.
    Dont do it in the USA, have another country do it, for you.
    LOVE that CIA

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Jan 2021 @ 1:28pm

    And web services like google and facebook will simply foolow the most extreme version of article 17 ,instead of trying to make different rules for france, poland ,germany, etc
    so content that may be legal in france could still be blocked because
    its not legal in poland .
    The people who passed this law did not consult with programmers or tech experts or the owners of small websites that maybe allow user posted link,s ,or short videos, or audio clips .
    they consulted with the old legacy media companys ,music corporations
    sony, etc

    reply to this | link to this | view in chronology ]

    • icon
      ECA (profile), 29 Jan 2021 @ 3:09pm

      Re:

      I think you are close, but google/amazon Can limit country to country, IF needed.
      And your comment should be more to the Fact that SOMEONE must of been PAID to get this on Every countries congress/parliament/whatever, or was this the EU group thats supposed to HELP balance the EU, thats PAID good money to Over rule any regulation, that a single country can make itself.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 30 Jan 2021 @ 6:48am

        Re: Re:

        More like the collateral damage is functioning as intended.

        Copyright Maximalists love this kind of collateral damage because it means less competition for them to compete with. Even if it's legal elsewhere, if that more popular work isn't on the shelf, your work can't be overshadowed by it. If that publisher cannot secure a license, they can't keep you from getting it. If that website can't critique the work, they can't inform others of your underwhelming performance. All of this means more potential (read: expected to the point of entitlement) profit for you.

        Never mind that Copyright Maximalists would also do away with Fair Use outright, automatically charge you for thinking about a work, and hold all works under perpetual copyright for eternity, if they could.

        This is not a case of stupidity, it is a case of malice.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Jan 2021 @ 3:09pm

    Some people used dishonesty to get this article17 implemented, you say? I dont believe it! Who would do such a thing? I didn't think that the USA entertainment industries had so far reaching influence! Yeah, right! Nothing, to them, is more important! It doesn't matter what else is completely fucked up, as long as those industries get what they want! As for being dishonest, it is in their genes. After all, they moved to California so as not to be sued for copyright infringement! Two faced fuckers!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Jan 2021 @ 3:52pm

    It's an EU wide law but each government can choose to interpret it in different ways,
    The problem is old legacy company's push for laws like all content must be filtered, only company's like Google , Facebook can afford
    complex filters, small local websites that deal with local content will shutdown,
    Eg a website that hosts French folk music
    that may not even be registered with music
    copyright organisations
    We already see youtube ignores fair use
    Many videos are removed because small
    creators have not the money or resources
    to use the legal system to fight some
    Dmca takedowns

    reply to this | link to this | view in chronology ]

  • icon
    techflaws (profile), 30 Jan 2021 @ 4:51am

    Germany, by contrast, is bringing in wide-ranging new law that
    contains a number of positive ideas:

    But of course, also as usually our government is brownnosing rightsholder and publishers (cause otherwise they could write something bad about them) by letting them get through with their ridiculous demands for the Leistungsschutzrecht: users are allowed to quote/use without compensation to the rightsholders:

    • 15 seconds of a video
    • 15 seconds of a song
    • 160 characters of an article
    • 125 KB of a photo

    reply to this | link to this | view in chronology ]

  • icon
    Mike Gale (profile), 31 Jan 2021 @ 3:48pm

    Any chance of mankind waking up before it's too late?

    This blundering around by legislatures and legal systems will have major impacts.

    Those driving it don't understand what they're doing.

    What could go wrong?

    Is there a way to get a lot of people realise, so they can fix it?

    reply to this | link to this | view in chronology ]

    • identicon
      Rekrul, 1 Feb 2021 @ 12:22pm

      Re: Any chance of mankind waking up before it's too late?

      Any chance of mankind waking up before it's too late?

      This blundering around by legislatures and legal systems will have major impacts.

      Those driving it don't understand what they're doing.

      What could go wrong?

      Is there a way to get a lot of people realise, so they can fix it?

      Well, 75 million people voted for the guy who sat on his ass and let a pandemic rage out of control across the country, so I'd say the chances of there being any great awakening any time soon are pretty much nil.

      reply to this | link to this | view in chronology ]

  • identicon
    Rekrul, 1 Feb 2021 @ 12:23pm

    Wasn't directive 17 passed using bait and switch? Didn't they rename it at the last minute so that the various politicians didn't know what they were actually voting for? I'd think that would be a strong legal argument for getting it overturned.

    reply to this | link to this | view in chronology ]


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