If the EU has its way, the Internet will change radically soon. Politicians believe that copyright law needs to finally arrive in the digital age. There has been a lot of discussion about so-called upload filters and the ancillary copyright for press publishers. On September 12, 2018, the European Parliament approved its own draft for the controversial reform of copyright law. Now the legislative process is continuing. But one thing is clear: this paves the way for a Europe-wide ancillary copyright law and also for the much-discussed upload filter.
The EU took a long time to adapt European copyright law to the Internet age. About time, copyright infringements on the Internet have taken over. This played into the pockets of American monopolists such as Google and Facebook for quite some time; they benefit from user-generated content through advertising revenues. The objective of the planned reform is therefore to better protect copyright across borders and to involve authors more in the use of their works.
But reforming an EU directive is a difficult process. The interests of authors, users and distributors are clashing and the minds of the public are boiling over, especially when it comes to copyright issues. Particularly during the vote in the EU Parliament, many stakeholders and critics participated vividly in the discussion. Only after the EU Commission published a proposal for a reform of the EU Copyright Directive in September 2016 did the member states initially agree on a common position in the EU Council of Ministers on May 25th. On September 12, 2018, the European Parliament approved its own draft for the controversial reform of copyright law after the much discussed proposal was rejected earlier in July.
But what was actually changed in comparison to the last, failed version in Parliament? What is the significance of the new versions of the two highly controversial proposals, namely the ancillary copyright for press publishers and the alleged obligation to introduce so-called upload filters? And what happens now?
Liability of platforms for copyrighted content
– Article 13
All three proposals are intended to oblige major platforms such as YouTube (Google), Facebook (incl. Instagram) or Twitter to ensure that no copyright infringing content such as photos and videos are uploaded to them. These platforms should also give up some of their profits by entering into licensing agreements with the authors or their representatives and thus sharing the advertising revenue with the creators. The three drafts differ in exactly how this is to be done.
The reform proposal on which the EU Parliament has now voted provides for the following points:
- The current draft no longer includes the relatively explicit introduction of upload filters. The old draft intended to oblige platforms (such as YouTube) to obtain the consent of the rights holders before users could upload their content. Without the consent, the material could not be published. This has changed. Now, YouTube, Facebook & Co. are fully liable for copyright infringing content. Up to now, these platforms could only be held liable as so-called “disrupters” for ceasing and desisting, since the platforms themselves are legal. When it comes to liability also for damages, a liability privilege applies. So far, platforms can only be held liable for a copyright infringement if they ignore a notice-and-takedown procedure and do not react to the infringement. Preliminary checks were not planned in principle. However, on September 13, 2018, the Federal Court of Justice (BGH) referred the question of further liability of YouTube for copyright infringements by third parties to the European Court of Justice. Irrespective of the outcome of this case, the new parliamentary proposal now intends to completely waive the liability privileges of the E-Commerce Directive.
- In practice, the liability rule is intended to force the major platforms to remunerate right holders for copyrighted material in order to avoid lawsuits by authors. Authors and platform operators will have to enter licence agreements so that third parties (users) can continue to post copyrighted material on said platforms, who will have to pay for it. On the other hand, authors should not be obliged to allow their works to be used at all.
- In addition, the platforms will be obliged to install a complaint management which react swiftly to complaints about “overblockings” or redress mechanisms. This is intended to prevent technology alone from deciding whether content should be blocked or deleted. Alternatively, users must also be able to complain to employees of the company.
- Platforms such as the Google Group including YouTube, Facebook, Instagram and Twitter are now to be quite explicitly affected by the increased liability. This is because only platforms that sort and advertise content are to be affected by the draft.
- Non-commercial platforms such as the online encyclopaedia Wikipedia in particular are explicitly excluded from the scope of the changes. Even small and micro-enterprises should not be affected in order not to prevent start-ups and innovations. Finally, educational platforms, cloud providers, open source software platforms and trading centres are no longer covered by the proposal. The danger that services other than YouTube and social media will now also be covered by the law seems at least to be averted.
Are upload filters coming?
Unfortunately, there is a high probability that the platforms will implement upload filters in order to avoid liability. Otherwise, it would hardly be possible to check the copyright conformity of user content in advance.
The technical implementation of such filter systems is considered difficult. The only system that currently seems to be working reasonably well is “ContentID”, which Google has developed for YouTube. European companies are currently either using ContentID – or are in the process of developing their own filtering systems. It could therefore be that Google, for example, will ultimately benefit massively from the sale of its software.
The risk here is that technology cannot distinguish between illegal copying and permitted parody or quotation or other legal means of repurposing copyrighted material. This can lead to user contributions being excessively blocked. That is another reason the platforms will be obliged to set up a complaints management; people will have to distinguish. But still: If content is wrongfully blocked by technology, users must take action themselves.
Ancillary copyright for press publishers, Article 11
In addition, a new ancillary copyright law is to be introduced throughout the EU. In particular, it will give newspaper publishers the exclusive right to make their content available to the public for a certain period of time. This right is intended to help publishers to receive remuneration for the digital use of their press content and thus to earn a share of the profits of large corporations. Above all, search engine providers and social networks are to enter licence agreements with publishers in order to continue to display copyrighted content of the publishers, for example through preview texts and headings (snippets). This would mainly concern the Google News service.
The proposals of the Commission, the Council of Ministers and the Parliament have the same goal, but ultimately differ in their concrete implementation.
With regard to ancillary copyright, the current proposal of the EU Parliament also retains the core of the old proposal, albeit with some changes:
- Ultimately, this is also primarily about meeting the big players such as Google with Google News, Facebook and Twitter, who always display the complete headlines of online articles, including detailed preview texts. This should become even clearer in the new draft.
- The publication of hyperlinks to press articles, including individual words, will continue to be permitted without a license in future. This makes it clear, however, that only individual words and no longer complete headings can be displayed.
- The use by individuals and the setting of hyperlinks is also to be expressly excluded from the scope of this proposal.
In addition, the rights of organisers of sporting events are to be protected. In future, fans could therefore find it difficult to share excerpts from programmes about such events in social media or to upload them to their own video portals.
Publishers will be involved in the exploitation of the works. And this time, the proposal also explicitly stipulates that the creators of the works themselves, i.e. journalists in particular, must be required to benefit from the revenues.
Is ancillary copyright going to change the web?
Currently, every online article, especially on Google News, is displayed in the search results with a heading and a description, which works as a teaser (snippet). This preview shows readers what the article is about and encourages them to read it.
If the ancillary copyright law were to take effect and the search engines and social networks were not to get involved in fee-based licensing agreements, this preview would change massively. According to the will of Parliament, only part of the heading would be visible next to the link. The exact length of this heading is unclear. If it is a complex topic, however, the remaining lines would be forcibly cut off. A user would therefore no longer know what the article is about at all.
Will the idea of ancillary copyright work this time?
In Germany, the ancillary copyright law has proved useless for press publishers. Ultimately, the publishers gave in and granted Google free licenses for the listing in order not to lose the additional readership. In Spain, the introduction of an ancillary copyright law did not generate any revenue either. Instead, the Google News service was shut down, which has harmed small and medium-sized publishers in particular.
This time, the EU wants to ensure, however, that the publishers and thus also the journalists benefit financially. First of all, the recitals to Parliament’s proposal state that “entry in search engines” should not be understood as “fair and proportionate remuneration”. This sentence is intended to ensure that Google & Co., unlike in Germany, cannot be granted free licences.
We can only hope that Google & Co. will accept these planned changes. The negative effect, according to the critics, could be that the American platforms would rather do without snippets in the EU and Google News would be closed. This would immensely reduce the accessibility of smaller online newspapers and niche magazines in particular. Unlike Spiegel-Online, these are usualle are found using search engines on a specific topic.
Where do we go from here?
Things will change, that much is clear – because the three proposals under discussion essentially provide for similar measures. All three reform proposals will ultimately lead to an ancillary copyright and indirect upload filters.
Now, the three proposals will go into the so-called trilogue – a non-transparent procedure in which Parliament will negotiate with the Member States and representatives of the EU Commission. Next spring, shortly before the European elections, a final version will be voted on.
Once the directive is in place, the individual member states will have to convert it into national law. In Germany, the Copyright Act (UrhG) would have to be adapted to make the changes a reality.
Attorney Solmecke would do it differently
The advantage of the new draft is that, more so than in the past, rightholders will now be able to demand fair compensation or remuneration for the use of their works. This is obvious because it is the purpose of the law. In my opinion, platforms are the biggest beneficiaries of copyright infringement on the Internet and should also hand over part of their billions in profits to creators. So far, YouTube, Facebook and the like have rested on the position that any infringements are committed by users. That will no longer be possible in this form in the future.
Overall, however, I am of the opinion that this draft goes too far. For example, the planned regulation will force users to defend themselves against unlawful filtering. Ultimately, this will lead to too much content being deleted rather than too little. For me, the whole project and the idea behind it is a step in the wrong direction. Ultimately, there should be possibilities to use such content freely and to ensure in a technical way that someone pays for the works. To this end, the filters could also be used in a different way, namely in order to then charge the platforms in the sense of a fair use regulation.
One can only hope that the last word has not yet been spoken here and that even more sensible counter proposals will be heard either in the EU Parliament or in the subsequent trialogue.