There is resistance to the EU copyright reform on the internet. Critics fear, among other things, that so-called upload filters will lead to marks. In this interview, legal expert Jürgen Taeger explains the background.
Mr Taeger, there are currently an increasing number of press reports about the EU copyright reform. What is it all about?
The current EU Copyright Directive dates back to the year 2000, when the major internet platforms such as YouTube, Facebook and Twitter, on which users now upload files on an unimaginably large scale, did not even exist. Some sources cite 450 hours of image material uploaded to YouTube every minute.
There is therefore no question that copyright law must be adapted to the development of the internet, also in order to protect copyrights. A sensible balance must be struck between those who create videos, music and texts as authors - the so-called creatives - and who also want to participate commercially in their exploitation when their works are copied and uploaded to internet platforms. On the other hand, there are those for whom a new culture of linking and sharing has developed on the Internet. Photographs are used to be redistributed as memes with witty texts or modified as caricatures. Self-created films are uploaded with a copyrighted piece of music playing in the background.
In addition, we use search engines to find our way around the internet and receive snippets - short lines of text that tell us what we will find behind the link we have found. These lines of text can be, for example, text extracts from newspaper articles or other copyright-protected works. Newspaper publishers in particular do not want to accept this without remuneration.
The reform aims to achieve a fair balance between these conflicting interests. It is obvious that it is difficult to reconcile the economic exploitation interests of authors, newspaper publishers and collecting societies on the one hand and the interests of advocates of a free internet on the other.
The EU Commission, the EU Parliament and the Council of Ministers recently reached a compromise. Why is there now a wave of criticism on the Internet? In Cologne, as many as 1,500 people have already demonstrated against the compromise...
The criticism is being levelled in particular at two provisions in the draft, which the EU Parliament still has to approve. Above all, Article 13 is being criticised because it increases liability for large platform operators such as YouTube and Instagram. Internet service providers already have to delete content if the rights of others are infringed by uploaded files. However, the authors must actively assert a claim for injunctive relief. In addition to the injunctive relief - or more clearly formulated: the right to erasure - the service providers are not obliged to pay monetary compensation because they are currently not considered to be infringers of copyright. This will continue to be the case until transposition into national law, but will then change. The new regulation now makes YouTube, Instagram and similar providers liable as infringers. Their aim is to store content uploaded by their users and make it accessible to the public in order to generate profits - for example through advertising.
These service providers are now to be held liable if copyright-protected works are uploaded by users without a licence. In future, they will be obliged to check files for copyright infringement before uploading them. Ultimately, this means that they will have to use upload filter software. Google had already developed such a filter for YouTube at a cost in the hundreds of millions. This algorithm will have to be refined, which will again entail considerable costs. Google will market this algorithm to other platform operators, whereby smaller providers will find it difficult to afford the high licence costs. I fear that this measure will also contribute to increasing the market power of the large providers.
Incidentally, our government once clearly spoke out against an upload filter in the coalition agreement. Now it is to be introduced via the EU after all. How can that be? The new directive now also treats platform operators as infringers if they allow a file that infringes copyright to be uploaded. They may only do so if they have negotiated a licence beforehand. If he does not do this or does not obtain the licence and uploads the copyright-infringing file anyway, he not only has to delete it, but would now also be asked to pay.
Are there exceptions in terms of liability?
Yes, under the current compromise, providers of non-profit online encyclopaedias such as Wikipedia, educational institutions and scientific archives as well as online marketplaces such as eBay and Amazon are exempt. Firstly, the platform operator is not liable if it has made every effort to obtain authorisation. This is a completely incomprehensible exception. It is not regulated from whom he can obtain the licence if he does not know the author, and what the open fact of "best endeavours" actually means in concrete terms. Who determines when this is the case? This provision will lead to great legal uncertainty.
This also applies to the second exception, according to which the operator must have made "best endeavours" to prevent the availability of an upload after being informed of the infringement. And finally, he is not liable if he removes the file after being notified of the infringement and ensures that it is not uploaded again. The last point, however, is already applicable law according to BGH case law.
It is also striking that a proportionality test must be carried out before any liability can be imposed, taking into account the type, audience and size of the service and the type of works or other items uploaded by the users, as well as the availability of suitable and effective means and their costs for the service providers. These requirements are also so vague that they will be difficult to manage in practice.
You have already mentioned this: Won't it be technically and financially very difficult for small platform operators, where third-party content can be uploaded, to fulfil these requirements?
Yes, this consideration was apparently taken into account when formulating a compromise. Article 13(5) now states that new services that are less than three years old and have a turnover of less than 10 million euros will be exempt from strict liability, but will be obliged to remove the file in question if they become aware of the infringement. However, this obligation to act already applies now. Paragraph 5 goes on to state that if platforms have more than 5 million user accesses per month on average in the last calendar year, they must ensure that the uploading of the content in question is not repeated - regardless of the turnover or age of the platform operator.
What could change for internet users?
The character of the internet would change permanently if algorithms were used to check whether a copyright infringement has occurred. It should still be possible to use protected works for criticism, satire or art in the future. However, I doubt that machines will be able to make appropriate legal judgements. This is probably one of the reasons why the Managing Director of Bitkom, Dr Bernhard Rohleder, has expressed the criticism of the Internet industry in drastic terms, stating that the obligation to carry out prior checks using upload filters crosses the line between control and censorship. This criticism cannot be dismissed out of hand. It is difficult to understand why, according to the wording of the draft, there should be no "general monitoring obligation", but the application of an upload filter is in fact made mandatory.
You mentioned the legal uncertainty. Do you expect a lot of complaints after the implementation into national law?
There will certainly be. It will then take a few years until the case law of the ECJ ultimately provides more clarity in the interpretation of the open elements of the offence. As far as legal disputes are concerned, which are conducted because the filter has rejected the upload or because a service provider does not prevent the upload or does not delete the file, it should be noted that the member states must provide for an out-of-court dispute resolution procedure.
You mentioned at the beginning that there is also criticism of another regulation...
Article 11 of the Copyright Reform Directive, which provides for the introduction of neighbouring rights in all Member States, is also controversial. According to this, platforms such as search engines, for example Google, should not be allowed to display headlines or short excerpts of press texts in their search results without authorisation. Other platforms will also no longer be allowed to include short text excerpts from third-party texts if they set a link. This seems to me to be a rather user-unfriendly regulation. In Germany and Spain, such national ancillary copyrights had already failed earlier for good reason, so that today we can once again find meaningful links in search engines. There is compensation for this to the rights holders. Art. 11 would make the Internet less convenient.
What happens now?
The EU Parliament still has to approve the compromise. Based on the outcome of the trialogue - i.e. the negotiations in the Commission, Council and Parliament - a majority is likely to be secured. However, it should be borne in mind that not all member states agreed to the compromise in the Council of Ministers during the trialogue. Malta, Slovakia, Italy, Poland, the Netherlands, Sweden, Finland and Luxembourg have spoken out against the compromise. However, Germany has now voted in favour of the draft text after all, although the German government's 2018 coalition agreement still stated that an obligation for platforms to use upload filters would be rejected as disproportionate. The protest from users and the internet industry is growing stronger, as can be seen from the numerous tweets on Twitter. More and more demonstrations are also taking place. I don't want to rule out that this will make an impression on Parliament and that the reform will be stopped in this form. Otherwise, once the directive is adopted and published in the Official Journal, the member states will have two years to adapt their national copyright laws or telemedia laws.