The concept of “presumably permitted uses” on platforms such as Facebook and YouTube in copyright law, with which, according to the federal government, content marked as permitted may not be blocked by upload filters as a precaution, could put users in a mess. The user is partly liable as a perpetrator, said Christian-Henner Hentsch from the Cologne Research Center for Media Law on Monday at a hearing in the Bundestag.
Hentsch warned that no one should label carelessly uploaded content as legal (“flags”) on the basis of the clause provided for in the context of the ongoing copyright reform. Users would first have to clarify whether they actually fall under the intended minor exceptions from the exclusive right of exploitation for minor uses of snippets of video, audio and text material for non-commercial purposes with an upload. Hentsch recommended better to rely on “Trusted Flagger” through trustworthy organizations such as consumer advice centers. The EU Commission is also planning this with the draft of a Digital Services Act.
According to the federal government’s draft law, the clause comprises 15 seconds of a film or moving image and a soundtrack, 160 characters of text and 125 kilobytes of a photo or graphic. According to the plan, right-holders will receive a “red button” at the same time for immediate blocking of “premium content” in particular. This is to keep the damage within limits if a user falsely claims that an upload is legally permissible.
If a recycler presses the “red button” without authorization, “there are also sanctions”, Hentsch also warned against careless use of this instrument. In principle, this should not only serve for classic copyright violations, for example in live broadcasts, but also in the fight against the violation of personal rights, for example by artists who are against playing their songs at party events and do not want to be politically co-opted. “Upload filters per se are not bad,” said Hentsch in general. However, over-blocking must be prevented, which is why a natural person should sit at the end of the decision-making process.
The liability regime must be clarified, demanded Sabine Frank, head of regulation at Google Germany, “fine tuning”. In the event of a “pre-flagging” of uploads by users, the platform operator would currently have to act as a judge and decide within seven days whether it is actually a legal combination of snippets of protected works. In addition to machines, “no one” knows what a future pastiche, such as quotations and parodies, will be freely usable. Should a rights holder later file a claim for damages, YouTube might have to pay. This reads like a “structural incentive to decide against the user in case of doubt” and to block it generously.
The Cologne specialist lawyer for copyright and media law, Dieter Frey, also saw the danger of overblocking here. Initially, the service providers were even criminally liable as perpetrators, no longer just as troublemakers as before. With a tight corset of duties, however, you could soften this sharp sword. There is also the possibility of blocking content individually “by notice and takedown” on request. Musicians could also pull this card if they didn’t want to see a song distorted by a party.
At the next level comes the trickier automated process with filter technologies, explained Frey. The approach for the presumably permitted uses is essentially sensible here. Even after the one-week period for assessing content marked as legal, the lawyer does not see the operator as liable for compensation, since then the liability for the interference should apply again. The adjusting screws would still have to be turned a bit in order to achieve a proportionate balance of interests, for example with the fundamental right to freedom of expression.
“If they do not violate the copyright, content must be freely exchangeable,” said Julia Reda from the Society for Freedom Rights (GFF) in the same notch. Anyone who wants to weaken the minor exceptions “is heading straight for the violation of European law”. Flagging should be possible for all legal content, not just for combinations of excerpts for the purposes of quotations, caricatures, parodies and pastiches with other works.
The legislature should also close a gap in measures against abuse, recommended the ex-EU MP. Currently, third parties can specifically prevent live streams of demonstrations by playing protected music in the background and thus activating upload filters. A user cannot take action against this at the moment, so that stronger protective measures are mandatory.
“Strategic over-blocking” must be prevented, emphasized the Bonn information lawyer Louisa Specht-Riemenschneider. Users should know whether content is being blocked due to the terms and conditions of a platform or the non-applicable de minimis limit. An already envisaged right to information should therefore be expanded accordingly. The requirements for the “red button” would also have to be increased. Caricatures, parodies and quotations should also not be subject to remuneration, as they are elementary for exercising essential fundamental rights.
On the other hand, the Berlin constitutional lawyer Christoph Möllers classified the planned free snippets as “constitutionally very problematic”. Even a “5-second use” of a song could constitute an unjustified interference with the basic rights of the exploiters. There should therefore not be any formal quantitative specifications at this point. The Erfurt lawyer Sascha Schlösser advocated a more fundamental approach: According to him, a more comprehensive reform is needed “so that the influencer also understands”. Using upload filters to get “censorship in the house” is questionable and unnecessary, for example in view of the available “legal tech solutions” with which photographers can easily enforce their rights against agencies and platforms.
The planned direct remuneration claim for authors, which are often left out in existing contracts between rights exploiters and YouTube & Co., as well as the standard requested by the Federal Council for the online lending of e-books (“E-Lending “). Eduard Hüffer broke a lance for the new ancillary copyright law for press publishers. The managing director of Westphalian News urged that the “individual words and very short excerpts” which can be used license-free by search engines should relate solely to textual content, not to graphics or audio and video contributions. Frank asked Google: Headings and snippets of up to 200 characters in length should be excluded from the protection area.