Copyright Reform in Germany: Damage Reduction on Article 17

While waiting for the implementation guidelines from the European Commission and the CJEU ruling on whether upload filters are legal or not, some Member States are implementing the Directive. Germany has done some damage reduction in its implementation, according to former MEP and current GFF staff Felix Reda

By Gesellschaft für Freiheitsrecht (guest author) · June 2, 2021

On Friday, May 28, Germany adopted its implementation of the Copyright Directive. Its most controversial element, the copyright service provider act (English translation of the government draft available here), which implements Article 17 of the Directive, is set to enter into force on 1 August. Despite the extremely problematic EU provision, which makes upload filters de facto mandatory for several commercial online platforms, civil society was able to secure significant safeguards against the blocking of legal content. The European Court of Justice is set to decide whether Article 17 violates the Charter of Fundamental Rights. However, the decision has been delayed, so even if Article 17 is eventually repealed, the national implementation law is going to apply in the meantime. This makes the freedom of expression safeguards we managed to secure even more important. This blog post gives an overview of the most important safeguards against over-blocking in the German bill as well as an account of the advocacy strategies used by civil society to limit the damage of Article 17.

Ex-Ante Safeguards

Article 17 requires that the cooperation between rightsholders and platforms that make best efforts to block infringing material must not lead to the unavailability of legal uploads. The German government has followed the interpretation of this provision defended by the EU institutions before the European Court of Justice, according to which it is insufficient for Member States to allow users’ to complain about wrongful removals ex post. Instead, Member States must ensure that legal content is not blocked in the first place, by limiting automated blocking to manifestly infringing content.

Of course, it is practically impossible to limit the use of upload filters to absolutely clear-cut cases of copyright infringement. Copyright law is too complex to be enforced by algorithms. That’s why Germany has introduced the concept of “presumably legitimate uses”, which receive ex-ante protection from automated blocking, based on the reasoning that those uses are likely to fall under a copyright exception such as quotation or parody.

“Presumably authorised uses” are uses of copyright protected content that fulfil all three of the following criteria:

  1. The upload includes less than 50% of a protected work (except for images, which may be used in full),

  2. The upload combines the protected work with other content and

  3. The use is either minor (less than 15 seconds of video/audio, 160 characters of text or 125kB image file size that don’t generate significant revenues) or has been flagged by the user as falling under a copyright exception.

Whenever a presumably authorised use is detected by an upload filter, the platform is required to notify the rightsholder of the upload but must refrain from blocking access to it. Rightsholders may then request the upload to be blocked after human review. Platforms pay compensation to collecting societies for presumably authorised uses.

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Of course, the definition of presumably authorised uses has serious shortcomings and was significantly watered down during the legislative process due to rightsholder lobbying. For example, this safeguard offers little protection against over-blocking based on false copyright claims. It is better suited to prevent the automated blocking of uses which fall under the exceptions for quotation or caricature, parody and pastiche. In another win for civil society, Germany has fully implemented the caricature, parody and pastiche exception and clarified in the explanatory memorandum to the copyright bill that the concept of pastiche covers remix, memes, reaction GIFs, mashup, fan art, fan fiction and sampling – the closest any EU country has come to a right to remix!

Ex-Post Safeguards

Given the limited protection offered to legal uses by the ex-ante safeguards, the German bill also includes ex-post safeguards which are supposed to incentivise rightsholders and platforms to avoid the blocking of legal content. Aside from the complaint and redress mechanism, which is spelled out in Article 17 of the EU directive, Germany has introduced “measures against abuse” of the upload filtering system.

The measures against abuse include the possibility for both platforms and users to sue the originators of false copyright claims for damages. In addition, platforms are required to exclude entities that repeatedly send false copyright claims from the use of upload filters. If the false copyright claim concerned a work that was found to be in the public domain or under a Creative Commons license during the complaint procedure, the platform must add this work to an allow list to prevent the same work from being blocked in the future. Finally, the law introduces a new collective redress instrument that allows associations representing users (such as GFF) to sue platforms that repeatedly block legal content for injunctive relief.

Whether these ex-post safeguards will be sufficient to incentivise platforms to improve their filtering systems and deter (alleged) rightholders from making false copyright claims will depend heavily on whether those provisions are enforced in practice. GFF is going to start collecting instances of over-blocking as soon as the new law enters into force on 1 August, in order to be able to enforce user rights in court where necessary.

Lessons Learned From German Upload Filter Debate

A number of factors have helped civil society to secure these safeguards against the blocking of legal content. First of all, Germany had the largest protests against Article 17 of all EU countries, with more than 100,000 people taking to the streets against upload filters in 2019. While the protests did not deter the German government from voting for the Copyright Directive in Council, the government parties made far-reaching promises to protect user rights in the national implementation, with the Christian Democrats even going as far as promising that upload filters would not be used. While the government was unable to keep this promise, the protests made it harder for the government to ignore concerns over the impact of upload filters on freedom of expression.

During the debate on the German implementation, it proved crucial to have up-to-date examples of overblocking from Germany and other EU countries, some of which were highlighted in a recent blog post for the Digital Freedom Fund. Wikimedia engaged individual members of the government parties in public debates that are more critical of upload filters than the mainstream of their respective parties. Communia and GFF testified as expert witnesses to the Parliament hearing on the Copyright reform. While remaining fiercely critical of Article 17 and upload filters as such, civil society still acknowledged the efforts of the German government to try to introduce safeguards. This strategy ultimately proved more effective than the music industry’s approach of loudly complaining about the very existence of safeguards while failing to acknowledge any of the concessions that the government made to protect their interests. At the end of the day, politicians have little incentive to respond to policy demands if they know that they will be publicly attacked no matter what they do. Finally, the active engagement of fan communities in the effort to push for a broad implementation of the caricature, parody and pastiche exception proved successful. Members of the fan fiction community, which is particularly large in Germany, petitioned parliament to protect their culture. Depending on the national context, civil society groups in other countries may be successful in engaging this or other communities that use the internet as a creative tool, for example social media influencers, sports fans or cosplayers.

If you are working on Article 17 implementation in your country, or have examples of copyright censorship to share, don’t hesitate to get in touch with Felix Reda at GFF!

(Contribution by: Felix Reda, EDRi member, Gesellschaft für Freiheitsrecht)