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Following the adoption of the EU Copyright Directive, Germany has claimed that controversial online upload filters are likely to be required and can only be prevented “as far as possible”.
Article 17 (formerly article 13), requiring online platforms to sign licensing agreements with creators in order to use their content, has been highly contentious.
But, if agreements are not possible, the platforms will need to ensure that users are not uploading copyright-protected material and if they are, that the content is taken down.
Much of the controversy of the directive centres on the fear that platforms would need to install filters that detect the material and prevent it from being uploaded to comply with the directive’s take down and stay down requirements.
While the text of the directive doesn’t explicitly mention upload filters, thousands of protestors marched in several German cities against the directive last month over censorship concerns and the country’s officials are concerned.
“Especially the provision foreseen in article 17 of the directive establishing an obligation to ensure the permanent ‘stay down’ of protected content, raises, however, with a view to the likely use of algorithmic solutions (upload filters) serious concerns and broad critique in the German public,” said the German government (translated) in a statement.
Sebastian Schwemer, a part-time lecturer at the Centre for Information and Innovation Law at the University of Copenhagen, provided the translation on Twitter.
In the statement, the government also said that the European Commission will need to engage in with all stakeholders concerned to develop guidelines for the application of article 17, which calls for the balance between fundamental rights and the ability to use protected content under regulatory permissions on upload platforms.
“The government therefore assumes that the dialogue is borne by the understanding to ensure an appropriate remuneration for creators, as far as possible prevent ‘upload filters’, safeguard freedom of speech and preserve user rights,” said the government.
In terms of technical solutions, the government has claimed that the EU should promote the development of open source technologies with open interfaces, guaranteeing transparency, open interfaces interoperability and standardisation.
“This will prevent marketable platforms from further consolidating their market power through their established filter technology,” according to the statement.
It added: “At the same time, the EU must develop concepts that counter a de-facto copyright register in the hand of dominating platforms via public, transparent reporting processes.”
The Netherlands, Luxembourg, Poland, Italy and Finland also provided a joint statement, which claimed that, in its current form, the directive is a “step back for the Digital Single Market rather than a step forward”.
In addition to claiming that the directive doesn’t strike the right balance between the protection of right owners and the interests of EU citizens and companies, the countries alleged that it lacks legal clarity and will lead to legal uncertainty for many stakeholders.
Following the signature and publication of the directive in the Official Journal of the EU, member states will have two years to transpose the new rules into their national law.
Copyright Directive, upload filters, Digital Single Market, online copyright, online platforms, copyright infringement