LEAD: The copyright directive seems to have only proponents or bitter opponents. Why is the debate so heated?
Leonhard Dobusch: The main reason for the violence of the dispute is that the rightholders’ side wants to extend an already excessively restrictive copyright that is incompatible with digital everyday life, without being prepared in return for concessions such as a right to remix or a general exemption for minor violations to be. As long as one side believes that it does not need to compromise, the other side’s resistance is, of course, even stronger.
LEAD: Why is article 13 particularly so controversial?
Dobusch: One idea is to get big platforms like YouTube or Facebook to pay more for content shared across their platforms. Because currently only a small amount of money flows from the profits into the creative industry. The criticism therefore sets less on the goal than on the specific proposal.
Article 13 of the draft stipulates that providers of platforms with uploading facilities for their users must conclude license agreements for all uploaded content or, alternatively, filter these contents. Many content that is difficult to assess – for example, satire and quotes – or whose licensing is virtually impossible, but tolerated today – such as memes, remixes or the like – would not even be published in such a situation. And because platforms should also adhere without knowledge, they have no choice but to filter such content in doubt.
LEAD: Does the new directive put the free network and the entire Internet culture at risk, based on free sharing and sharing of content?
Dobusch: If copyright reform is adopted as proposed, digital freedoms will actually be restricted. Today, many content created and distributed without commercial motives is tolerated on platforms such as YouTube. However, upload filters will affect just such non-commercial users. This is exactly the kind of new digital folk culture that has developed on the internet in the last 20 years.
LEAD: Which platforms are affected and how are there exceptions?
Dobusch: Apart from some specific exceptions for small start-ups or the online encyclopaedia Wikipedia, all platforms with upload function for users are in principle affected by the directive. And even Wikipedia is also indirectly affected because their media archive Wikimedia Commons is not covered by the exemption.
LEAD: How do you rate the danger of overlocking with satirical or ironic contributions?
Dobusch: Overblocking is already a problem today, before the directive and with liability restrictions for platforms. Technical filtering systems such as YouTube’s Content-ID are not even able to properly capture copyright and copyright exceptions.
LEAD: Proponents of the directive claim that Article 13 would create legal certainty that would even promote freedom of communication. What do you think?
Dobusch: If legal certainty is that it becomes much harder to distribute content online because there are fewer gray areas and less tolerated content, then that is not progress for freedom of communication but the opposite. And that is exactly what will happen because licensing is simply impossible with many content, forcing filtering platforms to do so. The vast majority of remixes, mashups and memes use content in a way that the collecting societies do not have the necessary rights to license. That is why there is hardly any change in the danger of being warned for individual users.
LEAD: Would the new EU copyright law achieve the goal of better rewarding artists and creatives in the future?
Dobusch: I think that is very unlikely. The market position of the large platforms will be strengthened by the reform because they are much better able than smaller competitors to meet the legal and technical conditions. At the same time, in negotiations they have the choice of either licensing or filtering. This is exactly what happened for years in the legal dispute between GEMA and YouTube. That’s exactly what will happen in the future.
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LEAD: What other ways exist to better protect the creative mind?
Dobusch: Instead of a further tightening of an already excessively strong copyright, there should be a compensated exemption modeled on the regulation for private copying: Sharing of content such as remixes, mashups, memes, etc. via social networks or private blogs would then be allowed and platform operators who advertise To earn money would have to compensate in return. In the 1980s, private copying was done in the same way: instead of banning copying on cassettes and CDs, private copying was allowed and paid for on a blanket levy on blank media.
LEAD: In an open letter, 130 representatives of European IT companies warned the European Parliament that copyright reform would damage the European economy. How do you rate this fear?
Dobusch: Of course, with the planned EU copyright reform a location and competitive disadvantage in comparison, especially with the United States. With its flexible fair use provision, US copyright is already much more open to innovation than EU copyright law. The planned copyright reform, and in particular Articles 11 and 13, as well as the provisions on text and data mining, aggravate this problem.
LEAD: Does that change the fact that start-ups and small providers are excluded from the policy?
Dobusch: A three-year exemption for a small group of vendors does not change the competitive advantages of US companies. This is all because of the fact that online platforms for user-generated content always deal with network effects: the more people use a platform, the more attractive it becomes for other users. An exception for small suppliers is cementing EU firms in the niche.
LEAD: Could you smooth the waves with the national implementation or would you need a new draft?
Dobusch: The problem is that, in particular, Articles 11 and 13 of the Directive go completely in the wrong direction. An overly restrictive, useless copyright will be further extended. That can not be repaired at the national level. In addition, a fundamental problem for the Digital Single Market in Europe is the fragmentation of EU copyright law. Here national special ways to hit, drives the devil with the Beelzebub.
LEAD: What would be the good news for the users, the artists and the big companies?
Dobusch: The best provisions in the directive from the user’s point of view are memory institutions such as archives and museums, which should facilitate the digitization of their holdings. The planned improvement of the negotiation situation for artists was eroded more and more in the last rounds of negotiations, the upload filter will not give them any additional income. Even in the new education exception, private licensing is still a priority.
LEAD: And what is the bad thing?
Dobusch: Although it sounds harsh, but as it stands, the copyright directive produces almost only losers: users will be able to share and consume less content. The artists will not get more money than before. For corporations, the strongest US platforms in their competitive position are most likely to be strengthened. The only real winners will be the providers of filtering software.
LEAD: Which (better) solution would suit all sides?
Dobusch: As outlined above, a mandatory and fee-based barrier on the model of private copying could achieve the goal of channeling money from large platforms into the creative industry, while at the same time expanding communication freedoms instead of restricting them. The German Ministry of Justice wanted to have such a proposal even checked once, this proposal should be followed up.
LEAD: What other than Article 13 do you find most problematic about the copyright form?
Dobusch: The list of problems in copyright reform is long. Article 11 introduces a new ancillary copyright for press publishers, which does not already work in Germany, and makes linking – the central cultural technique of the Internet – more difficult. Even seemingly positive provisions, such as a new exception for text and data mining, are based on false assumptions, namely that text and data mining are subject to copyright at all.
However, the biggest problem for all is that the whole reform is going in the wrong direction and that the key weaknesses of EU copyright law are not tackled: we continue to struggle with a patchwork of national rules on exceptions and barriers, which hinders a digital single market , Furthermore, there is no flexible exception in Europe analogous to fair use in US copyright. Furthermore, there are no exceptions for remix and minor uses.