Filter or No Filter?

No, this column is not about cigarettes or tobacco although this month’s topic does get a lot of people fuming.  Have you ever wondered what the EU is up to when it is not busy telling Theresa May that ‘no’ means ‘no’?  Well, it has, for example, been spending quite a bit of time on a new draft Directive on Copyright in the Digital Single Market.  If terms such as trilogue negotiations, aggregators, upload-filter and value gap don’t mean anything to you, then you have been missing out on some heated action.  Boring, I hear you say?  Not for the internet generation, who have been out on the streets in their tens of thousands across the EU, demonstrating against the new proposals and, specifically, against article 13 of the draft directive  At the same time, the draft document caused deadlock between EU institutions for several months (that’s where the trilogue negotiations between the EU institutions came in to agree the legislative proposal).

So what is the excitement all about?  Well, scores of EU bureaucrats have been locked up in the shed for a few years now, so to speak, building a shiny new digital single market, where digital and online services flow freely across borders between member states.  Good idea.  In the process, they realised that the last EU copyright reforms go back to 2001 and some parts of the law are now well out of date.  It made sense therefore, to bring copyright law up-to-date and make it fit for the 21st century, and the social media age, at the same time as creating the regulatory environment for the new digital single market to succeed; save that the copyright law reform opened up a massive generation gap.

Article 13 tries to answer the question how online content sharing services should deal with copyright protected content, such as movies, television programmes and music, uploaded by their users.  The answer given by Art 13 is that content sharing services must obtain a licence of copyright protected material from the rights holders, the idea and objective being to protect creativity and the interest of copyright holders.  This is where the value gap comes in – enabling authors of creative works to own a bigger share of the income generated by the content they create.  If it is not possible to licence such content, and service providers cannot demonstrate that they used best efforts either to obtain permission or prevent content from being uploaded, they may be held liable.

This is where upload filters come in.  Article 13 does not require social media companies to filter what users are uploading but, in practice, they will be left with little choice if they want to avoid being caught on the sharp end of a copyright infringement claim.

Unsurprisingly, YouTube is one of the main service providers who has been at the forefront of lobbying efforts against article 13 whereas the entertainment industry has of course been all for it.  YouTube already has its Content ID system, which can detect copyright protected music and videos and block them from being uploaded.  However, the algorithms behind these filters make mistakes and there are concerns that they might take down legitimate content.  Online rights groups are worried that these filters will subject all communications of every European to interception and arbitrary censorship if a black-box algorithms decides that text, sound or images match a copyright protected work.  Video game streamers who share their gameplay online are also up in arms.  Article 13 tries to counter these concerns by requiring service providers to put a complaint and redress mechanism in place to help if content is blocked by mistake.

Article 13 is by no means the only controversial provision in the directive but probably the one that has been most discussed.  The proposals may have a big impact and now face a final vote by MEPs in the next few weeks.  For the moment, it is unclear whether the new directive would apply to the UK – this will depend on when it is adopted and whether the implementation deadline falls within any transition period during which the UK would still be required to apply and implement EU law.

Gregor Kleinknecht, Partner

This article is originally published in Discover Germany’s April Issue.