In 2019 the European Parliament adopted the new Copyright Directive that aims to modernize how copyright is protected in the online environment.
After the directive passed, individual EU member states began working on implementing the text into local law, which has to be finalized next month
This includes the controversial Article 17, which requires online services to license content from copyright holders. If that is not possible, these companies should ensure that infringing content is taken down and not re-uploaded to their services.
Many opponents fear that this language will effectively lead to broad ‘upload filters’ that will take down more content than needed. This worry has been reiterated reiterated by several experts over the years.
Germany Tames Upload Filters
One option to limit the damage would be to implement the requirement into local law with several precautions. This is the direction Germany being taken by Germany.
Last week, the German Parliament adopted its version of Article 17, which includes various measures to prevent over-blocking. Once signed into law, online services will have to ensure that copyright-infringing content is not re-uploaded, but not without keeping potential legal uses in mind.
As pointed out by Communia, Germany introduced the concept that some uploads can be “presumably authorized by law.” This refers to uploads that qualify for a combination of fair use elements.
These “presumably authorized” uploads should not be blocked automatically if they qualify for all of the selection criteria below.
– The upload should use less than 50% of the original copyrighted work
– The upload must use the copyrighted work in combination with other content
– The use should be ‘minor’
The term ‘minor’ applies to non-commercial uses of fewer than 15 seconds of video or audio, 160 characters of text, or 125 kB of graphics. If the use of a copyrighted work exceeds these ‘minor’ thresholds, it can still qualify as ‘presumably authorized’ when the uploader flags it as an exception.
Rightsholders Can Object
If all conditions are met an upload can’t be blocked automatically. However, copyright holders still have the right to object and request a further review from the online platform.
Additionally, the “presumably authorized” classification doesn’t apply to content that’s still being broadcasted. This is in part to protect sports rights holders, who don’t want short clips of live events being made available, while a game is ongoing.
The German Article 17 proposal has yet to be signed into law by the President but that is expected to happen soon. It will then become the first Article 17 implementation with over-blocking protections built-in, which could set an example for other EU countries that have yet to implement the text into law.