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Artikel 13: Deswegen ist er nicht praxistauglich! | Rechtsanwalt Christian Solmecke


Nothing was causing as much discussion as Article 13 The most controversial part of the new European Copyright Directive And the clock is ticking The European Parliament is supposed to vote on it very soon This encouraged you to send me a lot of questions not only in the comments but also via email one of the most urgent questions was how is Article 13, if it passes the vote, supposed to work in practice? You had people saying YouTube is shutting down some say forums are going to disappear. what is the truth? I want to show you with a very concrete example what our world is going to look like, if Article 13 actually passes and I ask you to share, like and send this video to your politicians to let them see: This is how Article 13 is going to negatively affect even the rights of the creators the very rights Article 13 set out to strengthen see for yourself media law, copyright filesharing interntet warnings youtube media Wilde Beuger Solmecke Lawyers Hello I am Christian Solmecke, lawyer and partner of Cologne’s media law office First things first I do think the big platforms, such as Youtube, Twitter, Facebook should have to share their billions of profit with the creators because, admittably, copyright infringements do happen there occasionally which are not easy to control But I do not think the new European Copyright Directive can accomplish this goal. And I will show you why I do not think so I was taking Article 13 the guidelines in Article 13 and put them into practice I already did this briefly in another video before, but because you wanted to see a video only about how Article 13 is going to work in practice I am doing this right now. During my university studies around the year 2000 I founded a picture database which is called piqs.de as you can see here The idea came to me when I was at Harvard where Lawrance Lessig presented the Creative Commons licence you know today which is around 20 years old And I thought: “what a cool licence!”. Which I could estimate as a jurist. I wanted to offer photos under the Creative Commons licence Which I was one of the first platforms to do so in Germany and in recent years we added around 200,000 photos under the Creative Commons licence and they are photos like this tucan, uploaded by users on piqs.de It’s a project that earns me around 30-40€ a month, a couple of ads are on the site about cooperations But I don’t really make huge profits with it. But you gotta admit that with around 40€ of profit each month it is considered a commercial project. And falls under article 13 Now we’ll look into whether we can continue to operate this project, if article 13 passes. As a reminder What you’ll learn with the example of piqs.de applies to every forum every normal forum where copyright protected content such as text can be uploaded. So please remember: everything I say about piqs.de applies to every forum post. I was already contacted by an initiative that forms an union of forums, linked down below and they say: “dear forums please join the fight against article 13 which applies well to piqs.de I can tell you about the problems I had with this site concerning copyright Three times to be precise. Here you can see the “upload” button, where you can upload anything, even photos you don’t have the rights to which happened 3 times so far which applied the following procedure As the operator of piqs.de I was informed by the copyright holder who discovered his photos and said “there are illegal pictures on piqs.de, I own them” “Please tell us the name, IP address and e-mail of the uploader and then delete the photo.” We did give out the e-mail, which seems to be required though currently being reviewed at the European Court of Justice to which I did a separate video but we didn’t give out the IP adress which doesn’t seem to be required but we did release details as is stated in the jurisdiction and most importantly, we deleted the picture. In about 18 years this happened 3 times Three times that a creator approached us Now it may be that within these 200,000 pictures there are some which infringe on copyright law and that’s what Article 13 is about it states that: “well, maybe the copyright holders don’t find these illegal pictures” which means they can’t ask you to delete it which is why you should arrange licences with every copyright holder on the planet. Which brings us to article 13 Yes, true I don’t know what’s being uploaded under current jurisdiction I only have to delete when an copyright holder finds their photo Now you could say: “why would they search there?” Well, they don’t do it per platform, but they have big crawlers that would also find piqs.de, tell us to delete it we delete it and all is well With youtube this goes even further, there you can say you want to take over monetisation, in this case it won’t be deleted but instead copyright owners immediately get their money. The content ID system on youtube can do this already now. But all of this is yesterday’s news or rather the current jurisdiction which could be changed soon if article 13 passes, at least in the way it is currently proposed Alright, let’s keep on! Can I still operate piqs.de in the future? Concerning this I have to note, that we – I’m gonna take a short look into article 13 – I have to note that we have the duty, according to article 13, that’s what it says in here, to arrange licenses with all copyright holders on the planet. “A provider of online content sharing services” – that’s us! – “has to obtain approval by the copyright holders.” Which means – this is what I keep emphasizing – I’m gonna go shortly to piqs.de to upload a picture so that you can see what I mean – actually, I prepared an upload over here, I named it already, it’s a picture that I took myself, chose it as the file I want to upload, it’s a picture from the beach in Zoutelande, I’m gonna upload it…and I didn’t fill in enough tags, let me fix that and add “beach” too… now I’m gonna upload it, it’s being uploaded. Done! But before this can happen now, before I am allowed to upload this picture, I have to have arranged licenses with all copyright holders. This is absolutely paradoxial. Because…[laughs] Those people who took the pictures actually want to give me the picture under the Creative Commons License, dear politicians who are watching the video. Here a picture is being uploaded which somebody took. But this somebody is only allowed to upload it, if I as the operator of “piqs.de” have made beforehand a license agreement with all copyright holders of the whole earth – that’s at least what article 13, paragraph 1 states. Before this has happened nothing can be uploaded at all. Erm…yes. I find this to be a pretty difficult task. I – I actually don’t know. I’m stuck in a situation, where I actually don’t know who I’m supposed to negotiate with. And in actuality, why exactly? Just because maybe three pictures could be uploaded there, which aren’t supposed to be uploaded there? Because, for example this picture here of a tucan which is displayed on the landing page maybe hasn’t been created by the photographer “Dreamseller” For this possibility I am supposed to negotiate now with all copyright holders and hopefully the actual rights owner of this picture of a tucan is among them? Do you guys see the idiocy which is behind this train of thought? And the illogicalness? Because of this I really hope that the politicians now actually try to imagine this situation and think this through! And please also bother to think deeply here and not only sit there and say: “Nah, we already thought this through, it is now how it is!” Or rather, go to piqs.de, look at the pictures and think about what it would mean for a small website like us that I have to negotiate now with all copyright holders of the planet. Number 1: All copyright holders of the planet have to be negotiated with in order to get a license agreement with them. That’s the one thing I think is pretty crazy. I mean – we’re already doing a negotiation with the uploader – he actually has to say, if he clicks on “Upload”: “I agree with the terms of services” down here Theoretically I could argue that I’m already negotiating with a rights holder. But that is not enough, otherwise we wouldn’t have this whole discussion. I not only have to negotiate with one rights holder, but rather, with ALL of them! Just because one guy wants to upload something I beforehand have to negotiate and strike a license agreement with all copyright holders of the planet. I have no idea how I’m supposed to do this. Admittedly, maybe something can come out of article 9a which has been leaked recently. Since recently guidelines only are being leaked, they’re not public anymore Everything is secret, nobody is allowed to know. But everybody has to abide by it. Alright. Article 9a. Recently leaked. It’s about that there are supposed to be global collecting societies who are supposed to have the rights for all copyright holders, maybe of the world? Or of the EU? I don’t know, it’s really hard stuff to read and get into. But maybe I only have to strike deals with those collecting societies – which still have to be founded – and pay them some money. But also here I have to say – in all actuality, why should I pay them money? Because on my platform 99% of the content being uploaded are pictures coming from the original creators and copyright holders, and those copyright holders want to upload their pictures there. And in the near future – I’m gonna get to this in a bit – I won’t be able to keep operating this service. And at this point I didn’t do the creators a favor anymore, the creators actually WANT their pictures to be uploaded there, under the Creative Commons license, they can be shared, the creators get publicity that’s what the creators get for uploading there, now you can argue all you want about if the Creative Commons license is a bad deal, but the creators who upload at piqs.de, they like the Creative Commons license and those people who use these pictures for their blogs or whatever else, they like the Creative Commons license as well. Alright, so far concerning the negotiations with all copyright holders. I still don’t know exactly what influence 9a is gonna have, but for piqs.de there is no point for all of this. Maybe there is a point for Youtube, those negotiations with all copyright holders, but then uploading anything, whatever you want would be fair game at Youtube, but this wouldn’t weird either, they do say that “if something is being uploaded non-commercially, it’s being satisfied by the negotiations”, okay, but what if somebody uploads a movie now there? Non-commercially, he uploads out of his own accord – is this okay now in this case? Or have the license negotiations failed for this, possibly? Seriously, I don’t know, I can’t tell. And I can’t find out from reading article 13, this guideline here, neither. So – let’s say it’s difficult. Now we have the question – next point: Now we aren’t held accountable – according to article 13, paragraph 4 – 1. if we have “made best efforts to obtain authorisation” – yes, let’s say that we have made best efforts, we issued a tender asking “Who wants to have a contract with us?” Maybe we were able to made some deals happen And No. 2: we made “best efforts to ensure the unavailability of specific works […] for which the rightholders have provided […] [us] the relevant and necessary information”. Alright. Let’s play this out. Let’s say this tucan, we’re sticking with our example, from the landing page. Let’s say this picture of a tucan has been taken by a professional photographer. And he doesn’t want his work being uploaded in a picture database like piqs.de To make this really clear. What does he have to do now, according to article 13, paragraph 4b? He has to give us the picture, as an original, as a blueprint in a sense and make it available to us. I could imagine, how this – I’m gonna say it – uploadfilter, how this uploadfilter could possibly work: This copyright holder has to go to the “Upload”-page now and upload his picture of a tucan here. So that it can’t be uploaded again it’s being uploaded via an upload page, that is only being used for the uploadfilter with this we have the blueprint. This is never being published, because it’s only purpose is to recognize illegally uploaded content. Alright, on the left we have the picture of a tucan, which has been uploaded to the uploadfilter now. But now let’s say some criminal comes and he tries to upload exactly this picture and there is a match. And with this match we know “Okay, here’s a big red flag, we have here possibly illegal content and they can’t be uploaded. But now article 13 continues to say that I as the service provider am not allowed to block the upload, no, because those could be quotes, memes, whatever now we have to have a human come in to check if this has been blocked legitimately. Now I’m going to ask the politicians, who are hopefully watching this video right now – so share this video please in all social media so that this reaches the right persons, so that they can actually look into this and think about what this means – now I’m gonna ask the question, concerning this picture of the toucan: The guy who uploaded the picture to the uploadfilter only claims to be the copyright holder. How am I supposed to know – as a small website provider of piqs.de – How am I supposed to know if he is actually the copyright holder? I don’t know. Even if there’s an uploadfilter and everything is well, anybody could upload anything there, exactly the same as anybody right now can upload anything at piqs.de and all the other websites as well I see the same danger, that people could claim to have rights that they don’t actually have, if we have those upload filters. Oh wait, there aren’t supposed to be any uploadfilters, according to the opinion of the CDU, since it isn’t written out in the guideline, but only “recognition software”. That’s also pretty interesting, that there won’t be uploadfilters but rather “recognition software”. But what are uploadfilters now rather than “recognition software”? Then sometimes it’s being said: “Well, maybe they find another way to prevent this.” That’s just the same as me telling you “Get from Frankfurt to New York in around 8 hours.” “But you don’t HAVE to take the plane.” How else would I, dear people? There is no other way than to take a plane to get from Frankfurt to New York. And the same applies here as well. It won’t work without upload filters. So – Problem #2: I don’t know who uploaded this Now, the photographer of the tucan photo I showed you earlier on the homepage. He – obviously didn’t upload just one photo but instead – considering the circumstances – maybe he has 11,000 photos. All of which he would have to upload into our database. Which would lead to two problems: First, the photographer who uploads – and, well, you can only upload one photo at a time – would be busy for quite some time until all of his photos would be uploaded on piqs.de. Which leads to following problem on my side: I don’t even know how to store all these photos so – Saving 11,000 photos would pose quite a challenge to us. Not quite simple. And there… the first problem is I don’t know how this is supposed to be handled. Maybe implementing an EU-wide upload filter with all contents of this world. With all copyright protected photos Where you can upload all your iPhone photos So I’ll know That I’m not allowed to upload them to piqs.de All of you are copyright holders! So all of you would have to upload your blueprints if you care about your photos not being uploaded to piqs.de. Then follows the matching process What if someone uploads only the nose of this tucan? That would also infringe on copyright. The filter would have to recognize that. Filters like that exist, but are rather expensive. For example I read that Google spent around $100 million on developing their Content-ID filter. Which means we may have to aquire filter licenses from Google No idea what that might cost to implement that $100 million filter on a site like piqs.de. And to be honest… This is where problem #2 lies I told you before that we make a profit of around €50 a month. There is no way the mentioned filter would cost less than €1000-1200,
considering their complexity. Especially when talking about hosting And again:
Then there is only one solution: I’m shutting down the site. Which also applies to all the mentioned forums. Where all they do is discussing interests. They can close down aswell.
Because it wouldn’t be worth the effort. So the question is:
Is that a loss or gain of creativity? I’d say: less creativity!
Because we have a restriction here. Which in the end will block us. This won’t result in anything. And I am asking myself which photographer will seriously come, search through all the picture databases in the EU – there must be thousands of them – and uploads thousands of pictures on every picture database dear politicians, what is this strange legislation which you created? We need upload filters, which nobody is going to use anyway. This is possibly relevant for YouTube, Flickr, for the big ones. But not the small platforms. And you have to say, yes we are small, but we have been on the market longer than three years. Therefore, the full penalty of the law is in effect: upload filter or closing the site. There is no other possibility. This is not populism. This is just interpreting the law with a practical example and the law side-by-side. I have not seen a politician, who has gone through such an example. I do not think, that all the photographers will upload all their pictures. To make it clear, the two things about article 13, which I have to do to escape the liability are impossible. 1. I would have to enter into ridiculous negotiations with all the right holders in the world. This is also ridiculous for forums, where, normally, there are only discussions. They also have to negotiate with all right holders. I think this is really strange. And as a second step, I need a blueprint database which I can use to compare all the uploads with. Then you can block the upload. But, I do not know if the uploader of the blueprint hold the rights to the blueprint. I see this as the major obstacle with article 13. Even though, I agree with all creatives – which I did for years – that YouTube, Facebook, etc. make a lot of profit with copyright infringements of their users who upload snippets of a TV show or similar. And I also think, that they have to share some of their profits. But, please don’t do it this way. And to prevent this, you should come to the protest on 23. march. I will also be there and, possibly, give a speech. Perhaps, I can give an overview to the audience where I see the problems with article 13 in practice. We also plan a talk with several YouTubers and we cordially invite the politicians who support article 13 to join our talk. Please contact us. We are still looking for participants. Especially Axel Voss, who we already contacted and asked, if he wants to join Until now, we don’t have a response. At least not up until the shooting of this video. But maybe he, erm he, …, he wants to join to present his view and maybe he can explain the example I showed from his perspective. But I just did the following, I just looked at the law, nothing more nothing less. I did not look at all the discussions out there. For example, someone said: “well, if you have approval you are not liable”. No, you are only exempt in case you have approval of all right holders and, additionally, use upload filters. This is stated in article 13 4 (a) and (b): “made best efforts”, so you are not liable, if you “made best efforts to obtain an authorisation” so you did not get it, even though you tried you did not get it. And then you get upload filters. This means, in case I could get authorisation from all right holders in the world then I do NOT need upload filters because I have approval from everyone. But this is, …, this makes me freak out. I do not know how this is supposed to work, that you get approval from everyone. This is also expressed too tersely. I have to read this out: “An online content sharing service provider shall, therefore, obtain an authorisation from the right holders by concluding a license, for instance, in order to communicate or make available to the public works or other subject matter Nobody is going to achieve this, nobody is going to get a world license. But everyone is going to try to get this world license. And, if that’s the case or you can make it work with article 9 – I am hoping for this – then you only need the upload filter which nobody has to use. This will lead to the shut down of platforms like piqs. And, therefore, I say: “this just won’t do”. We are working on a competing proposal to article 13 Clearly, this proposal cannot be voted on right away by the European Parliament. But, I can say , as a sneak preview, it is based on a charge for blank media. Right now, when you buy a blank CD or a flash drive then you are allowed to make private copies onto them and then you have to pay something into a common pot for the right holders which is then distributed. And maybe we can do something like that for the big providers. I am working on this right now. Maybe, I can show you a draft in the coming days. I would appreciate this. This is not trivial. But we are going to great lengths to do this, so that we not only criticize but we are constructive. And I would appreciate it, if you like, share this video and send it everywhere, so that the politicians see, that article 13 is definitely not going to work in practice. I would also appreciate it, if you subscribe if you are not subscribed currently. We see each other tomorrow. Tomorrow’s topic can be seen below in the video description. I am pleased that you joined me. Fight against article 13. In its current form, it is not very useful. Thank you for watching, bye and till tomorrow.

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