Felix Reda

When the European Union adopted the new copyright directive, including its infamous Article 17, the upload filtering provision, it gave Member States time until June 2021 to introduce the new rules into their national copyright laws. France, the most fervent supporter of Article 17, apparently has no time to lose and just presented the new draft law designed to transpose Article 17 and some other parts of the copyright directive.

France’s implementation proposal is important to follow wherever you are in the EU, because it likely marks the worst-case scenario of how Article 17 could unfold if rightsholders get their way. Given that the French government has been the mouthpiece of the entertainment industry throughout the negotiations, perhaps one should not be surprised that it tries to interpret the new rules in the way most favorable to rightsholders. After all, president Emmanuel Macron personally intervened with Angela Merkel to secure Germany’s support for Article 17 in clear breach of the German coalition government agreement.

Yet the audacity with which the proposed French law ignores the safeguards included in the EU copyright directive to protect user rights should be baffling even to the most cynical commentator. The proposal needs to be adopted by the French legislator, so there is still a chance to improve it, but given that the vast majority of French Members of the European Parliament from different parties across the political spectrum voted for the EU directive, there is likely to be broad support for the national proposal as well.

Cultural Sovereignty !?

The new draft law on “audiovisual communication and cultural sovereignty in the digital age” covers a number of different subjects aside from copyright law, including the protection of minors and the regulation of video streaming platforms like Netflix. The title of the proposed law gives a glimpse into the mindset of French legislators, presenting the enforcement of copyright laws in the interest of private entertainment companies as a matter of asserting France’s “cultural sovereignty”. It frames Article 17 as a means to support the European entertainment industry in its conflicts with American tech companies. Users’ interests are at best an afterthought in this struggle for “cultural sovereignty”.

This blog post examines the part of the proposal which implements Article 17 of the Directive on copyright in the digital single market (found on pages 28 to 34 of the draft law). That part is divided into four sections, dealing with platform definition, platform obligations, transparency and user rights. The last section is a bit of a misnomer, because it ignores the vast majority of user rights included in Article 17 of the EU copyright directive, which were introduced in response to the massive protests against the potentially devastating effects of Article 17 on fundamental rights such as freedom of expression.

Photo: (cc) by-nc-sa Tim Lüddemann • Protester: Emuolia Star

Platform Definition

Despite assertions by supporters of Article 17 that the law is aimed at huge social media companies like YouTube and Facebook, the French proposal still tries to extend the new obligations to as many platforms as possible. The definition included in section 1 of the proposal is mostly identical to the definition included in the EU copyright directive, which has been criticized for being exceedingly vague. No effort is made to narrow down what is meant by unclear terms from the directive such as “large amounts” of copyrighted content uploaded to a platform. Instead, the French law provides that a decree should define what is considered a large amount.

There is, however, one important change: The definition does not just include platforms that profit directly from user uploads of copyrighted content, but also those that do so indirectly. That could include platforms whose business model is not based on giving access to user uploads of copyrighted content (for example by placing advertisements next to that content), but who nevertheless allow such uploads. One example could be the dating app Tinder, which is based on a freemium business model, where users can pay for extra functionality which gives their dating profiles greater visibility. These profits are clearly not directly derived from giving users access to copyright-protected content, yet without the possibility to upload copyrighted content (pictures), the app clearly would not function, so it could be argued that it derives its profits indirectly from organizing the uploaded pictures.

The EU directive does mention indirect profit in the recitals, which are not legally binding, but not in the legal definition. It seems that the French government cherry-picks from the recitals, ignoring the guidance that is supposed to narrow down the definition and only including the parts that widen it. For example, the clarification from the recitals that Article 17 should only apply to platforms that compete with licensed content streaming services for the same audiences (which would clearly exclude platforms like Tinder) is completely missing from the French law.

Platform obligations

The core of the proposal, section 2, is mostly identical to the provisions of the directive. Platforms that fall under the definition established in section 1 are directly liable for copyright infringements by their users, unless the platform can show that it did everything in its power to obtain a license from the rightsholder and to block unauthorized user uploads of copyrighted content identified to the platform by rightsholders. Lighter obligations exist for startups that are less than three years old, as described in the EU directive.

The French draft law clarifies that rightsholders should be completely free in deciding whether to give a license to a platform, shutting down any efforts such as those discussed in Germany to avoid upload filters by introducing some kind of mandatory licensing solution. Whenever a rightsholder decides not to offer a platform a license, it will therefore have to use upload filters. This is particularly interesting given that the German government announced that it would try to cooperate with other European countries to try to find a solution that doesn’t rely on upload filters. France, one of the largest EU Member States, is clearly not interested in such a solution.

Transparency

Section 3 includes some transparency obligations that platforms have towards rightsholders (not towards users, of course!) about the types of measures used to block unauthorized content. The main difference to the EU directive is that the French proposal makes it clear that platforms do not have to reveal any trade secrets in order to comply with the transparency obligations. This addition could severely limit the chances of the public to inspect upload filters used by private companies for potential fundamental rights issues, as companies will declare the detailed functioning of their upload filters a trade secret. Apparently, the only thing that France loves more than giving authors to right to stop the flow of information is to give companies the right to stop the flow of information.

User rights

The only part of this section that’s faithful to the directive is the title. Remember when the European Commission claimed that your memes will be safe? Memes would not be deleted, the Commission argued, because Article 17 makes the exceptions for parody, caricature, pastiche and quotation mandatory and clarifies that Member States have to make sure that users can benefit from these exceptions in practice. It also states that platforms cannot be forced to generally monitor all user uploads (which is necessary for any upload filter) and that legal uploads must not be deleted as a consequence of implementing Article 17.

Well, France “forgot” to mention all of that in its national proposal. The copyright exceptions under French law stay completely unchanged, although they are notoriously patchy and do not cover all situations that may arise on online platforms, such as quoting from a video. France also completely fails to ensure that users can benefit from these exceptions in practice when they upload something to a platform. Instead of ensuring that platforms do not override existing copyright exceptions in their terms and conditions, as the directive requires, the French proposal simply asks platforms to inform users about the existence of copyright exceptions under national law. The decisive parts of Article 17, which state that platforms must allow users to actually benefit from these exceptions, and that such legal content must not be blocked in the first place, are completely missing.

It’s clear from the creatively named “user rights” section of the draft law that copyrighted content gets blocked by default and users can only benefit from copyright exceptions if they complain after their content has already been blocked. Of course, getting your reaction gif or live stream unblocked a couple of days after the fact is completely useless, which explains why very few users ever make use of such complaint mechanisms where they exist. Under the French proposal, platforms have to offer a mechanism to deal with user complaints about blocked content (so the procedure is clearly “block first, ask questions later”).

Rightsholders, unlike what the directive says, do not have to justify their initial requests to block content, but only have to respond once a user challenges the blocking of one of their uploads. During this dispute resolution, the content stays blocked. This opens the door to copyfraud, where companies falsely claim to hold rights in other people’s creations, and the original author has to complain to have their own work unblocked. Although the directive says that all decisions by a platform to block content must be subject to human review, the French proposal only requires this in cases where a user complains after their content has already been blocked. Outrageous mistakes by fully automated upload filters are likely to become a lot more common under this proposal.

To add insult to injury, when users or rightsholders want to complain about the result of the redress mechanism offered by the platform, they are supposed to turn to a new regulator called ARCOM, which is the direct successor of HADOPI, the organization best known for administering the infamous “three strikes” rule, which could block users from accessing the Internet if they repeatedly violated copyright law. This is hardly a regulator that is known for impartially weighing the competing interests of users and rightsholders.

Copyright Fight: Round 2

The French draft law confirms the worst fears of the EU copyright directive’s critics. The strictest version of the upload filter provision is proposed, while any safeguards that have been introduced to respond to the huge public protests are simply ignored. It’s hard to imagine that such a selective implementation of an EU directive would be accepted by the courts, but before it could come to a lawsuit, a lot of damage would already be done. Smaller countries often tend to copy the national implementations of EU law proposed by the larger countries, so there is a significant danger that France could set the standard for copyright enforcement in the entire EU. The European Commission should remind the French government of its obligation to implement the entire directive, not just the part that benefit large entertainment companies. With a French Commissioner in charge of copyright issues in the new European Commission, however, that is unlikely to happen.

It is therefore once again upon the users to raise the alarm bells on this most dangerous version of Article 17 yet! The French parliament can still stop this law from advancing as proposed. We must also pressure other European governments not to follow this terrible example and take user rights seriously.

To the extent possible under law, the creator has waived all copyright and related or neighboring rights to this work.