The EU Commission published its long-awaited guidelines on Article 17 of the new Copyright Directive on Friday, which is linked to the dreaded upload filters. It explains on the 26 pages that the clause, which has been contested for years, does not specifically prescribe the use of upload filters. But it is not forbidden either.
Automatic blocking of content that users upload to larger online platforms should be limited to obvious copyright infringements and should be avoided in cases of doubt, writes the Brussels government institution. At the same time, however, it confirms the possibility for rights holders to mark certain content that could cause them “considerable economic damage”. These would then have to automatically block upload filters, even if they were used legally in principle.
With Article 17, the EU legislator has introduced stricter rules for platforms for sharing online content, the Commission explains. The operators would therefore have to make license agreements with rights holders such as music or film producers for the exploitation of songs, videos and other copyrighted content. If this does not happen, they are obliged to make every effort to ensure that content that is not authorized by the rights holders is not accessible on their websites. However, this duty of care according to the “best effort principle” does not mean “that a certain means or a certain technology is prescribed”.
With the recommendation, the Commission wants to support the “correct and coherent implementation and application of Article 17 in all Member States”. In doing so, she pays particular attention to the need to “ensure an appropriate balance between the various fundamental rights of users and rights holders”. The instructions come very late, however, as the deadline by which the EU countries have to implement the directive expires on Monday.
Less strict with smaller platforms
For new small platforms, a less stringent rule applies in the event that no permission from the rights holders is available it says in the paper. This affects service providers who have been active in the single market for less than three years, who have a turnover of less than 10 million euros and who have fewer than 5 million monthly users. As soon as such startups grow, they would have to provide additional evidence. For example, they should also do their best to ensure that content that has been reported by rights holders does not reappear on their portal later.
“The Copyright Directive protects freedom of expression,” says the Commission. They lay down strict protective measures for users. Everywhere in Europe, the use of existing works for quotations, criticism, reviews, caricatures and parodies is expressly permitted. Memes, for example, can be used freely. Users could also quickly object to “an unjustified removal of their content by the platforms”.
“Sad day for Europe”
Civil rights organizations such as European Digital Rights (EDRi) and their members sharply criticized the guidelines. They complain that upload filters operated by Google, Facebook & Co. will in future decide which content can be shared online. EDRi demanded that the “incorrect guidelines” be withdrawn until the European Court of Justice has ruled whether Article 17 with the Charter of Fundamental Rights is compatible.
“Today is a sad day for Europe,” stated Julia Reda, copyright expert at the Society for Freedom Rights (GFF). Instead of listening to reason and arguments, the political influence of the entertainment industry triumphed again in the back room. The Electronic Frontier Foundation (EFF) complained that a first draft of the guideline had brought user rights even more to the fore after the dialogue with interest groups that was initiated in 2019. The final result is disappointing.
The Bundestag recently passed national rules for upload filters that will take effect from August. In order to protect artistic freedom and social communication from unauthorized blockades, the use of works protected by copyright, in particular for the purposes of quotations, caricatures, parodies and pastiche, is permitted within narrow limits. This applies to snippets of video, audio and text material for non-commercial purposes. In such cases, it is a matter of “presumably permitted uses”. Rights holders can contest this and, for example, enforce a block with the “red button” for premium content.