Upload filter approved by the European Court of Justice

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Woman at a demonstration in Leipzig in 2019

Photo: Peter Endig/ dpa

The highly controversial EU copyright reform is legal according to a ruling by the European Court of Justice (ECJ).

The court in Luxembourg on Tuesday dismissed a lawsuit brought by Poland against the most well-known part of the reform - the "Upload Filter" Article 17, citing that the regulation provides adequate guarantees to protect the right to freedom of expression and information on platforms such as YouTube (Case C-401/19).

The 2019 copyright reform was intended to adapt outdated copyright law in the EU to the digital age and ensure creators better remuneration for their content online.

In Germany and other EU countries, there were large protests.

Civil rights activists and opponents of Article 17 (formerly Article 13) mainly complained that platforms like YouTube have to check whether content is copyrighted when it is uploaded.

This is only possible with filters, which run the risk of sorting out more than necessary, which would be tantamount to censorship.

In the spring of 2019, tens of thousands in Germany protested against the directive, which had not yet been finalized at the time.

The Polish government's complaint was also against Article 17.

Warsaw argued that this violated freedom of expression and information.

The ECJ clearly rejected this view.

The online services are forced to use automatic filters, depending on how many files are uploaded to them.

In addition, the user's right to freedom of expression and information is restricted by the liability regulation.

However, the reform provides "clear and precise limits for the measures" by excluding legally uploaded content from being filtered out or blocked during upload.

Users could take action against a sharing service if it blocks legitimate content.

Conversely, copyright holders could only demand protection of their works if they “supplied the relevant and necessary information about this content” to the sharing services.

There are separate requirements for parodies and other formats that are similar to or quote protected content.

In cases of legal doubt, liability on the part of the services is excluded.

The ECJ ruled that these are "reasonable guarantees" that adequately protect the user's right to freedom of expression and information.

Filters cannot be perfect

Felix Reda, head of the control © project at the Society for Freedom Rights and a former member of the European Parliament, does not consider the judgment to be sufficient: »The European Court of Justice does not completely rule out the use of upload filters to enforce copyright on online platforms«.

After all, the court confirmed "what civil society has been emphasizing for years: upload filters are not able to reliably distinguish between copyright infringements and legitimate forms of free expression of opinion such as parodies or quotations".

It is therefore correct that the ECJ limits the use of upload filters to obvious violations of the law, “such as uploading entire cinema films”.

Article 17 of the Copyright Service Provider Act has been implemented in Germany.

Felix Reda says: »This judgment shows that this law is fundamentally taking the right approach.

Among other things, the fact that it excludes the use of upload filters for certain types of uploads, for example for short excerpts from protected works of less than 15 seconds in length".

The Society for Freedom Rights will "observe closely whether the German law meets the requirements of the European Court of Justice and will prevent the illegal blocking of legal content".

Otherwise the GFF will sue.

pbe/dpa/AFP