In view of the implementation deadline in summer 2021, it is becoming increasingly apparent what the transformation of the EU's disgraceful Copyright Directive in Germany could look like. The draft of the Federal Ministry of Justice and Consumer
Protection is now available and is - just like the Directive on which it is based - highly controversial, in particular in terms of the possible implementation of upload filters. The directive requires platforms to censor copyrighted material as a
user attempts to upload a post. It requires the platform to scan the post prior to publication and block it should it contain copyrighted material. However the directive also specifies some legally specified exemptions without the need for licensing,
e.g. parodies or so-called pastiches, i.e. remixes, memes, GIFs, mashups, fan art, fan fiction, covers or sampling. But can the automated upload filters detect that copyright material in a post is a pastiche or not? Lexoligy describes a German
variation adding some metrics to this legally permitted fair use: The draft German Act provides for a minor exception clause for non-commercial use in social media. According to this, reproductions for non-commercial purposes of a small
scale will be allowed, even if they have not been licensed (e.g. up to 20 seconds of a film or sound track, 1,000 characters of a text or photographs with a data volume of up to 250 kB). If the public reproduction of a content is not permitted, the
service provider is obliged to immediately remove the corresponding content or block access to it upon notification of the rights holder. If the content is permitted the platform must pay the author an appropriate remuneration. It
seems that the envisaged censorship process is for the platform to block the content automatically and then give an opportunity for the user to justify why the content should not be blocked. But this process doesn't sound very viable for an average
social media poster. And perhaps the only practical outcome is for all copyright material to be blocked from all user posts with just a few savvy 'influencers' able to work the system. |