May 6, 2021

Germany Wants To Limit Memes And Mashups Derived From Press Publishers’ Material To 128-by-128 Pixels In Resolution, And Three Seconds In Length

Last month, Mike wrote about France’s awful proposals for implementing the EU Copyright Directive’s upload filter (originally known as Article 13, but Article 17 in the final version). Just as France was the most vocal proponent of this dangerous development, so Germany was the main driving force behind the ancillary copyright requirement, also known as the snippet or link tax. And like France, Germany has managed to make its proposed national implementation (original in German) of what was Article 11, now Article 15, even worse than the general framework handed down by the EU. The former Pirate Party MEP Julia Reda has a Twitter thread (in German) that picks out the main bad ideas. Under the German proposals, in general only “single words or very short extracts” of a press article can be quoted without a license. Specifically, free quotation is limited to:

the headline

a small-format preview image with a resolution of 128-by-128 pixels

a sequence of sounds, images or videos with a duration of up to three seconds

The proposal states that the new ancillary copyright does not apply to hyperlinks, or to “private or non-commercial use” of press publishers’ materials by a single user. However, as we know from the tortured history of the Creative Commons “non-commercial” license, it is by no means clear what “non-commercial” means in practice. Press publishers are quite likely to insist that posting memes on YouTube, Facebook or Twitter — all undoubtedly commercial in nature — is not allowed in general under the EU Copyright Directive. We won’t know until top EU courts rule on the details, which will take years. In the meantime, online services will doubtless prefer to err on the side of caution, keen to avoid the risk of heavy fines. It is likely they will configure their automated filters to block any use of press publishers’ material that goes beyond the extremely restrictive limits listed above. Moreover, this will probably apply across the EU, not just in Germany, since setting up country-by-country upload filters is more expensive. Far easier to roll out the most restrictive rules across the whole region.

Before the new laws go into operation, people can submit their views to the German government at the email address

[email protected]

until 31 January 2020. Now might be a good time to remind the German lawmakers — politely — that supporters of the EU Copyright Directive insisted repeatedly that memes were “exempt” and “safe” under the new rules. Germany’s unbalanced and extreme implementation shows that simply isn’t true, and means that memes and mashups are most definitely under threat — just as many of us warned.

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