By EDRi

The idea was so simple and yet so genius. After the dramatic Euro 2016 quarter finals between Italy and Germany, the web-artist Kurt Prödel had a wonderful idea: he created a 14-second video, which showed all penalties by the German team simultaneously. In the video, all players are running simultaneously towards the Italian goalkeeper who, himself, is replicated on the gal line, trying to defend his goal. The video clip spread quickly across social media and was even shown in German television – until it got blocked by the Union of European Football Associations (UEFA). This is yet another case that shows how outdated and ill-suited to modern media culture the current European copyright regime really is.

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The UEFA is the rights holder of the images that were used to create this short video, and for which no permission for reproduction was granted. UEFA requested that the video was taken down on major sharing platforms (such as YouTube or Facebook) alleging a copyright infringement. Twitter temporarily blocked the whole account of the video-artist. The purpose of copyright is to protect the legitimate interests of creators and rights holders to exploit their works. Blocking the account of an artist for remixing images which do not affect UEFA’s earnings could be seen as overreacting.

In the United States the video would most likely fall under the so-called “fair use” exemption (although UEFA would probably still have used YouTube’s ContentID to remove it anyway). This exemption allows the re-use of small parts of a work, without the explicit permission of the rights holders, as long as the outcome is a “new” work. The idea is that copyright laws should not impede the creation of new works which do not compromise the exploitation of an original work. The European copyright framework does not contain such a general exception.

This year, the German Constitutional Court ruled that the artistic freedom prevails over the copyright in the case of “sampling” or “remixing” (re-using excerpts of sound recordings in a piece). The German Court recognised this “right to remix” as an essential part of modern media culture, which needs to be protected from excessive claims of right holders. This notion seems to be missing in the current EU copyright framework.

Online service providers such as Youtube or Facebook are continuously confronted with requests to take down content from their platforms because of alleged copyright infringements. These platforms are facing claims that are usually difficult (and costly) to verify and generally use automatic systems to make decisions (such as ContentID). In order to avoid legal liability, even perfectly legal content is often taken down. In the worst misuses of the system, this has been proven to be used as a tool for censorship.

The blocking of the penalty shot video reveals the need to reform European copyright in order to provide legal certainty for creators and rights holders. The only way to achieve this certainty and to foster modern media culture is to harmonise copyright law across the EU, and include the “right to remix” among the mandatory exceptions to copyright protection.

Ironically, German Minister Heiko Maas also enjoyed the video and tweeted a link to it, before it was taken down. The Minister is best known internationally as a politician who thinks that internet companies should become more involved in online content regulation. Maybe he understands the issue a little better now. Maybe.

Article 5 of the Directive 2001/29/EC provides a definite list of exemptions to copyright and related rights. The Directive would have to be changed accordingly to include a right to remix.
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001L0029:EN:HTML

§ 24 of the German Urheberrechtsgesetz regulates the free use in copyright law
http://www.gesetze-im-internet.de/urhg/__24.html

EDRi: Copyfail #1: Chaotic system of freedoms to use copyrighted works in the EU (19.05.2016)
https://edri.org/copyfail-1/

The ruling of the German Constitutional Court (31.05.2016)
http://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/2016/05/rs20160531_1bvr158513.html

Blocking of Euro-meme by UEFA: in case of doubt, decide against artistic freedom (06.07.2016)
https://netzpolitik.org/2016/sperrung-von-euro-meme-durch-die-uefa-im-zweifel-gegen-die-kunstfreiheit/

Copyright Law as a Tool for State Censorship of the Internet (03.12.2014)
https://www.eff.org/deeplinks/2014/12/copyright-law-tool-state-internet-censorship

(Contribution by Claudius Determann, EDRi intern)

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