Upload-filters, Article 13, restricting the freedom of speech on the Internet. The EU-wide reform of copyright passed on 26 March has been much discussed. Nevertheless, or for that very reason, it is often difficult for non-professionals to wrap their minds around the massive load of information in 150 page long reform. This article serves answers to all basic questions concerning the new EU-directive.
Why is there a need for a copyright reform in the EU?
The idea of such a reform first came up in 2016, when the EU Digital Commissioner at the time, Günther Oettinger, called for an adaptation of copyright law to the digital age. The result has come to be a directive that applies for all of the EU and, as German Justice and Consumer Protection Minister Katarina Barley explains, aims to "fairly reward artists and guarantee freedom of speech online".
However, the actual transposition of this directive is up to the Member States themselves. Unlike the GDPR, for example, this copyright reform is not a regulation, but merely a directive that leaves room for implementation. National legislators now have two years to decide on their method of adapting to the directive. The new reform will not be entering into force until then.
What does the controversial article 13 say?
The much-discussed Article 13 prohibits Internet platforms such as YouTube, Reddit, Facebook or Instagram to make copyrighted works accessible without ensuring permission of the originator. Platform operators will be required to obtain permits, for example through licensing agreements in the future. If a permission has not been received and licensed content is yet published, the platform is going to be liable in the future. At least if, in accordance with Article 13 (4), the host did not sufficiently seek authorization.
Will this lead to the use of upload-filters?
Currently, the principle of "notice & take down" applies to the handling of copyright infringing content. That means, users who upload unlicensed content must be notified by the platform operator and their content has to removed subsequently. In most cases, this does not have legal consequences on the first occasion.
With the entering into force of the new copyright directive, platform operators will be liable from the moment unlicensed content is uploaded to their site. Accordingly, content must be checked before uploading in the future. The dreaded "upload-filters" are not specifically prescribed in the new directive. However, considering the 400 hours of video uploaded to YouTube alone per minute (!) makes it clear that automated filtering is the most obvious solution.
Such automated filtering techniques, however, are viewed with skepticism by many users. Experience has shown that filter software is indeed able to identify copyrighted material as such, but not to distinguish between unauthorized copying and copyright-compliant use in the context of parody, satire or a quote. Therefore, many users fear that so-called "over-blocking" could become an issue with the introduction of upload filters. Meaning, more content than necessary could be filtered.
Which consequences does this copyright reform have for companies?
Site operators are responsible for third-party content uploaded as part of the new policy. However, this only applies to platforms that earn money with copyrighted works. Article 2 of the new EU reform excludes non-commercial platforms such as online encyclopedias. Equally unaffected are new platforms in the first three years, with annual sales below € 10 million.
In addition, site operators can be held responsible for embedding copyrighted content. For example, for the wrong integration of user-generated content on their own website. Content management tools, such as squarelovin, help prevent copyright issues with UGC by automatically querying image rights and publishing content only after the author has given its explicit consent.