Germany Joins Other EU Countries in Doubts over Article 13 of the Copyright Reform

Following a brief lull during the summer break, the European copyright debate is decidedly back in full swing since the end of August, with not one but two very interesting leaks so far on Statewatch.

Faithful followers of EU politics might indeed remember that, a couple of weeks ago, Statewatch leaked a European Council document in which several European countries were strongly questioning the compatibility of the copyright reform (specifically its article 13) with European fundamental rights. Today, Statewatch published another European Council document, revealing this time that Germany has also strong concerns with that same article.

First, a quick reminder – what is article 13? This article is at the center of a very heated copyright debate in Brussels, as it threatens the survival of an open and free Internet in the European Union. In short, if implemented, this article would make online platforms liable for every piece of content uploaded by their users – thereby killing the open platform model. It would also force a very broad range of websites to implement mechanisms to filter all comments, pictures, videos, etc. uploaded by their users, causing broad censorship across the Internet.

With such a threat looming over the future of Europe’s tech industry, it is crucial to see Germany join the fight against these provisions – and in such an interesting way.

By stating that “it is doubtful that the Commission’s proposal […] will not interfere with the prohibition of a general obligation to monitor” (emphasis added), Germany does indeed strongly challenge the EU Commission’s assessment that imposing filtering would comply with EU fundamental rights and the e-Commerce directive.

Germany also questions whether a provision on notice and takedown could instead “potentially be suited to likewise protect the interests of rightholders” and “be an effective means of combating violations of rights”, adding that “with regard to the freedom of information, this might be a gentler means” (emphasis added). With the European Commission currently looking at harmonising notice and takedown processes across the EU, this is an alternative solution worth reviewing.

Finally, Germany is clearly wondering how article 13 would ensure a fair remuneration for authors and performers, as “article 13 of the draft […] works to strengthen the position of holders of derivative rights” such as music labels and film studios. That is a fair criticism, to which no satisfactory answer has yet been provided.

These past three weeks have proven, if there was still a need to, that article 13 is at the heart of deep concerns from many diverse stakeholders, including European governments. Too much is on the line. European stakeholders need therefore to take a step back, obtain detailed written answers from the Council Legal Services and time from the Estonian Presidency to properly address these issues.