Remember that six Member States (Belgium, the  Czech Republic, Finland, Hungary, Ireland and the Netherlands) tabled a ‘non-paper’, which was leaked by Statewatch, with a set of fundamental questions regarding the (il)legality of the European Commission’s (EC) proposal on Article 13, and its accompanying Recitals (38 and 39), of the Directive on Copyright in the Digital Single Market, and which was blatantly disregarded by the Estonian Presidency, which issued its proposals for compromise language, including on Article 13, at the end of August.

Today, Statewatch published another leaked Council document with the German Governments’ questions on Article 13 to the Council Legal Service. This document clearly shows that Germany has joined the block of so-called like-minded Member States in questioning the EC’s narrative so far and calling its bluff on Article 13 by asking a legal opinion.

But before we dive into the remarks and questions put forward by the German Government and translate the diplomatic jargon, a quick reminder: Article 13 aims to mandate that online platforms put in place an automated censorship filter (see our video) to block potential copyright-infringing material under the pretence of solving the ‘value gap’ (see our video on that myth).

‘It is doubtful’: Germany Considers Article 13 Illegal as it Contradicts the e-Commerce Directive

Germany rightfully questions how it could be that EC’s proposal is compatible with the the prohibition of a general obligation to monitor as stipulated by Article 15 of the the E-commerce Directive (ECD), and points out that the intermediary liability (so-called ‘safe harbor’)  provisions in Article 14 should also be taken into account.

It is doubtful that the Commission’s proposal concerning the requirements made on service providers in terms of the care they are to exercise pursuant to Article 13 and Recital 38 of the proposal will not interfere with the prohibition of a general obligation to monitor as stipulated by Article 15 of the Directive on electronic commerce 2000/31/EC.

What value gap? Where are the authors and performers?

The German Government clearly considers that Article 13 strengthens the position of rightholders, and rightfully wonders where are the interest of authors and performs represented in this provision.

An open letter issued on 6 September by the ‘Fair Internet Coalition’, a group representing European performers, already pointed out that “[Article 13] will mostly benefit the corporate ‘creative’ business who sign up performers and have the upper hand with respect to how they should be paid in return (…) Transparency measures may only be of use for a small minority of performers with enough leverage to negotiate ongoing payments. However, this is not the case for the overwhelming majority of performers who simply sign buy-out contracts”.

Collateral Damage: Germany Fears Impact on Academia

The German Government is also worried about the impact of Article 13 for academia, as it notes that “in the field of academia, there will be platforms onto which researchers and scientists will upload their texts or data sets”, and warns that “a constant monitoring and the resulting costs cannot be brought in line with the freedom of science“.

The Alternative Solution: Harmonising ‘Notice-and-Take Down’

The document also questions if a provision on ‘notice and takedown’ having applicability throughout the EU, would not be suited to likewise protect the interests of rightholders, adding that “with regard to the freedom of information, this might be a gentler means“.

This solution of harmonising ‘notice-and-take down’ procedures was actually put forward by the Max Planck Institute for Innovation and Competition in their response to the questions of the 6 Member States.

The Conclusion: Stop this Charade, Delete Article 13 & Have a Proper Discussion on Addressing Illegal Content on the Internet

The German Government’s thinking goes in the right direction with their question about harmonising ‘notice-and-take down’ procedures as an alternative solution. Let’s stop this charade on Article 13 and have a proper, balanced an holistic discussion on adressing illegal content on the Internet.

This is not even wishful thinking: the online news platform POLITICO already leaked the draft EC’s Communication on ‘Tackling Illegal Content Online: Towards an enhanced responsibility of online platforms’. This Communication is currently being finalised internally in the EC Inter-Service Consultation process, and is expected for 27 September. It seems that the EC hasn’t made-up its mind yet on moving forward with a legislative initiative or not, but if it does, they could propose legislation by Spring 2018.

Moreover, when announcing its its ‘Industrial Policy Strategy’ yesterday, 18 September, the EC indicated its intention to produce a Report on the functioning of the Directive on the enforcement of intellectual property rights (IPRED) for this autumn.

So, enough opportunities around the corner for the EC and the Member States to explore alternative solutions to Article 13 that do respect fundamental rights and the intermediary liability principles of the e-Commerce Directive.

This should be a strong signal to the Estonian Presidency of the Council to stop talking about Article 13 plain and simple, and to discuss such IP enforcement measures in the proper context. It would also be a sign of good faith if the Council Legal Service would this time actually produce a written response to the questions raised, rather than ducking the questions and making bland statements.

What others are saying

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