What the upload filters should and shouldn’t block
No time right now?
After the new draft copyright law comes into force, may we upload excerpts from third-party works to the internet? The answer is a resounding yes and no.
The cabinet has agreed on a draft law to revise copyright law. In the future, platform operators will therefore have to be responsible for when users upload copyrighted content. To prevent this, they should create technical possibilities to discover such content while uploading and to prevent the upload.
Critics interjected early on that platform operators would rather block more content than they actually ought to, just for their own protection. Even forms of use covered by copyright could then be swallowed up by the upload filters. In response to this, the governing coalition proposed certain upper limits in 2020 that the upload filters must take into account.
In the draft law, this lower limit is referred to as “minor uses”. In concrete terms, this means that a maximum of 15 seconds of films and soundtracks may be used. For text excerpts, the upper limit for minor use is 160 characters, which is exactly the maximum length of an SMS. For images, on the other hand, a file size of 125 kilobytes is provided as the upper limit.
But there are other requirements. An upload must also be smaller than half of the actual work. The above limit value therefore only applies to a video snippet, for example, if the original is longer than 30 seconds. In addition, snippets must be combined with your own content. In addition, the whole thing only works if an upload is not used for commercial purposes and thus no “significant” income is generated.
Short snippets of content are “presumably allowed”
At this point, it must be emphasized that the upper limits listed here for video clips, images or text are specifications for upload filters. Content that makes use of third-party intellectual property within the set limits could theoretically nevertheless violate copyright law. But the platform operator should not block such content immediately.
The legislature speaks here of a “presumably permitted use”. Taken together, the above factors lead to the conclusion that there is a high degree of probability that it is a quotation, a parody or a pastiche. This would mean that the use of third-party content would be covered by the law. In the event of a dispute, a court would have to clarify whether this is actually the case in individual cases.
Longer excerpts from other works must be marked when uploading
Theoretically, however, extracts from third-party works that are longer than the upper limits defined for the upload filter can also be used in accordance with the law. So that such work is not blocked immediately when uploading, there should be a possibility to be marked as such when uploading.
The platform operator must then provisionally assume by law that there is legal use and allow the upload. At the same time, the service provider is also obliged to inform the uploader that there is a blocking request by a rights holder. The uploader then has to decide whether he or she will refrain from uploading for legal reasons or just assume that the use is legal.
Where will there be upload filters?
At the moment it remains unclear which platforms actually have to operate upload filters in the end. According to the Federal Ministry of Justice, it should hit Internet platforms that “have the sole or at least primary purpose of storing a large amount of copyrighted content uploaded by third parties and making it publicly available.”
Youtube should be included. If only because Google’s video platform is mentioned several times as an example in the declaration of the bill. But also Facebook, Twitter or Giphy? That will have to be seen. In any case, Wikipedia is explicitly excluded from this. Code hosting platforms such as GitHub and e-commerce providers are also not affected by the law.
Theoretically, startups could fall under the definition, but there are special regulations for them if their services are not older than three years and they turn over less than ten million euros annually within the EU. The same applies to small providers whose turnover within the Union remains below the threshold of one million euros.
Also interesting: Copyright reform: flat rate instead of filters!
