Saturday, March 16, 2019

Merkel's party proposes upload-filter-free national implementation of Article 13: constructive, but EU Parliament should postpone copyright vote

Late on Friday by local time, the Christian Democratic Union (CDU) of Germany--Chancellor Dr. Angela Merkel's party--and its Bavarian sister party, the Christian Social Union (CSU), provided by far the most compelling argument to date for a postponement of the European Parliament's copyright reform vote, which would normally take place right after the plenary debate envisioned for March 26.

Further to an initiative taken by the party's secretary-general Paul Ziemiak, who is 33 years young and likely better-placed than some others to understand the commercial and legal realities facing digital platforms, a group of CDU and CSU politicians focusing on policies for the digital economy unveiled a position paper on the future implementation of the contemplated EU directive into national law. You'll find my translation (unofficial unless and until one of the authors would approve it) of that paper further below (or just click here). Its main thrust is that a directive based on the recent interinstitutional compromise resulting from trilateral talks ("trilogue" in EU lingo) between EU Council (= Member States), EU Commission (= EU executive government and initiator of legislation) and EU Parliament could allegedly be transposed (= incorporated, implemented) into national law in a way that would render upload filters unnecessary.

Upload filters can result in overblocking, which even the EU Parliament's rapporteur Axel Voss MEP (CDU, state of North Rhine-Westphalia) conceded in an interview. In Germany, upload filters are as sensitive an issue as they are divisive. The written agreement based on which the CDU and CSU formed another government coalition about a year ago with the Social Democratic Party of Germany (SPD) explicitly rules out upload filters, but an EU-level compromise between the German and French governments resulted in a qualified majority in the EU Council for Article 13 of the proposed Directive on Copyright in the Digital Single Market ("EU Copyright Directive"). The CDU has consistently and vehemently denied--all the way up to the Chancellor's spokesman Steffen Seibert--that Article 13 in its post-trilogue form would entail upload filters. But critics have insisted that they would be a practical consequence borne out of necessity, and in recent weeks, two SPD politicians in senior government positions strategically undermined--one might even say "torpedoed"--that representation:

  1. The Federal Commissioner for Data Protection and Freedom of Information, Ulrich Kelber, elaborated on the negative implications of upload filters on data privacy due to a further concentration of Internet traffic as only a few companies would be in a position to provide such functionality (and everyone else would practically have to rely on their solutions in turn). He voiced this concern contingent upon the absence of a proposal for implementing Article 13 without such filters. Thankfully, Mr. Kelber's agency officially approved my English translation of his statement by confirming its accuracy.

  2. A state secretary of the Federal Ministry of Justice and Consumer Protection answered a question from a libertarian member of parliament and conceded in the ministry's reply--which officially constituted "the Federal Government's position" despite visible disunity--that high data volumes would practically necessitate such filters.

The CDU/CSU position paper (page 1; page 2; and translated below) seeks to alleviate the related concerns by arguing that the German Bundestag (federal parliament) could and would transpose the directive into national law with the guiding principle of favoring payments to copyright holders (without depriving them of their right to request takedowns) over precautionary blocking. There's a lot I could say, and at a later stage might say, about the substance of the proposal. But I'll refrain from it in this post (one of the reasons being that I'll seek official approval of my translation) and focus on procedural implications. The procedural aspect is most urgent: on Thursday (March 21), the Conference of Presidents of the EU Parliament (= the decision-making body of the leaders of the political groups) will have to formally adopt an agenda based on which the plenary vote on copyright would be held the week after. In my opinion, the CDU/CSU paper--which we should all welcome as a constructive step forward whether or not we consider it sufficient--indirectly provides three good reasons for postponing the EU Parliament's plenary vote into the new legislative term:

  1. The strongest point here is that CDU/CSU politicians have consistently argued in recent weeks that there must be closure for a legislative process that has been ongoing for years, with public protests escalating only in recent months--but now, only about 10 days prior to the envisioned plenary vote (where the CDU and CSU would like to see the EU bill rubberstamped), those very parties have put forward an 11th-hour proposal of the kind they, too, would have been free to present earlier in the process. Actions speak louder than words, so they've just conceded that further discussion at the EU level is warranted.

    The unusually high density of typos in that paper shows a sense of urgency on its authors' part.

  2. Again, for now I'm being intentionally nonjudgmental on how helpful the proposal is, but let's assume arguendo that it does alleviate/eliminate concerns over upload filters, and let's furthermore assume that the German implementation wouldn't be effectively overruled by the Court of Justice of the EU. On that optimistic basis, all Europeans should benefit from it; inconsistencies between national implementations should be minimized for the sake of the Digital Single Market; and I call on CDU/CSU to acknowledge the commercial reality that Germany, as large as it obviously is, represents but a minority of the Digital Single Market, so even if German law contained a valid and viable workaround for upload filters, platform operators addressing the Digital Single Market at large would likely still have to implement them on a precautionary basis so as to steer clear of liability issues in other countries.

  3. The CDU/CSU paper says that they do take citizens' concerns and criticism "very seriously." It is no secret that EU elections will be held two months after the presently-envisioned date of the plenary vote, and that the CDU/CSU's election campaign has already been impacted in various ways (in the digital as well as the physical worlds). The very best way--most meaningful and most helpful--for CDU/CSU to demonstrate their understanding of public concerns would be a postponement of the plenary vote.

The remainder of the post is my translation of the CDU/CSU paper.

Here's a direct link to this translation (designed to skip the above part proposing a postponement of the vote). Feel free to copy, paste, and distribute the translation below, provided that this notice is included. Translated by Florian Mueller ( Translator's explanatory notes in [brackets].


Promoting freedom of speech, improving the legal situation of end users, providing fair and effective compensation to creators, involving and obligating platform operators--but all of the foregoing without upload filters

Further to an initiative by CDU secretary-general Paul Ziemiak, CDU politicians focusing on legal and digital affairs as well as the spokespersons of #cnetz [a digital affairs think tank closely aligned with CDU/CSU] have agreed on a set of proposals for the national implementation of the EU-level compromise on copyright reform. By means of the proposals we've agreed upon, we seek to guarantee that the following objectives be reached:

  1. The German implementation will do without upload filters.

  2. We don't want content uploads to be blocked in practice--instead, we want to ensure fair compensation for content.

  3. Authors, musicians, artists, creatives and other producers of copyrighted works will be able to enforce their intellectual property rights on a better, more convenient, and simpler basis.

  4. End users' freedom of speech will be strengthened, and end users will enjoy a very high degree of legal certainty.

  5. Obligations will be imposed on Internet platform operators. Business models based upon copyright infringement will be intervened against. Platform operators must pass on a fair share of their profits to those who actually created the content. In exchange they, too, will enjoy legal certainty.

For two-and-a-half years, EU-level negotiations of a copyright bill have been taking place, with the following objective inmind: even in the digital space, authors, artsists, creatives, musicians and other creators of copyrighted works are entitled to intellectual property protection. Divergent interest had to be taken into consideration during this democratic and protracted process involving the EU Commission, the EU Council, and the EU Parliament. Finally, a compromise was reached in February 2019. A partly intense debate has been raging since said compromise at the latest. At the heart of said debate are concerns that the new legal framework would require the use of so-called upload filters. In this context, there are fears of an overblocking of content by platforms and, as a result, restrictions on the freedom of speech and the diversity of opinions.

The CDU takes concerns over and criticsm of the EU-level compromise very seriously. Like all EU directives, the copyright reform bill will also have to be transposed into national law. In that process we want to ensure that upload filters will not be used. At the same time, we are guided by the principle that work must be rewarded and seek to ensure that authors and artists will receive fair compensation. Furthermore we strive to provide certainty to Internet users that their uploads will not expose them to cease-and-desist claims. Finally, we are driven by the desire to impose obligations on platforms that have been making a lot of money with other people's creative works without providing a reasonable level of compensation to them. What the platform operators will get out of this is legal certainty.

In order to achieve these objectives, the CDU puts forward its proposals for the national implementation of the EU-level compromise. Our proposals are largely based on the following items:

  • The approach outlined herein, which prevents upload filters, will form the basis of our national [German] implementation of the copyright directive. Our guideline is: pay, don't block. There will not be any upload filters.

  • The bottom line is: you will be able to upload any content. Up to a certain period of time, uploads are exempt from license fees. Above and beyond that period, the platform operator will have to take a license to all copyrighted works that come with a digital fingerprint identifying the creator. That is normally the case.

  • Alternatively, right holders can also waive their rights or request a takedown. In all other cases, a legally mandatory bulk license fee will apply.

  • This will enable each and every creator to receive compensation for their works. The bulk license will relieve patforms of their obligation under Article 13 to perform an individual analysis of copyright violations prior to upload. Therefore, uploads will not have to be subjected to filtering, and overblocking will not occur.

  • Without exceptions and as envisioned by the directive, consumers will not be liable for violating copyright through their uploads. This will result in a fair balance between the interests of end users, creators, and platform operators.

  • In legal terms the bulk license will constitute a limitation of copyright law.

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