Today I read an email from someone who couldn’t understand why the Green Party in Cologne decided to show solidarity with the #SaveTheInternet initiative. The fronts between supporters and opponents of the planned EU copyright reform have hardened. I took this as an opportunity to explain—using an example in my reply—why I consider Articles 13 and 11 of this directive disproportionate in their current form.

Globuli (Homeopathy)

It’s important not to just attack each other, but to be able to put yourself in the other side’s position. I can absolutely understand authors and creators whose works are used constantly without proper compensation. But this reform won’t solve that problem either. I believe we’re ultimately fighting for the same thing: fair compensation for creators. The debate should focus on how to do this better than Article 13 proposes—instead of defending a placebo.

That’s what the EPP group and Mr. Voss in particular are doing. They claim the reform will strengthen creators and seem to believe in it as firmly as some people believe in homeopathy. In fact, there are some parallels.

Just like in homeopathy, the idea is to fight “like with like.” YouTube earns money by using third‑party content; in response, new enforceable rights via collecting societies would lead to blanket license agreements. Because those licenses are flat-rate, collecting societies would then also earn money on works whose rights they don’t actually represent. I paid €87.50 to collecting societies simply to be allowed to print contracts in my company and digitize incoming mail.

And just like homeopathy, the directive is effectively powerless. The platforms that currently make lots of money with ads—where clicking “Play” redirects you to the next porn site—platforms that don’t care about youth protection or the existing notice-and-takedown process, will simply ignore the new rules as well.

Finally, this regulation—again like homeopathy—is dangerous: the many small companies that would ultimately have to license upload filters from Google & co. would end up strengthening the big players and weakening the small ones.

An Example

Back to the email I read. I replied (as one should), and I don’t want to withhold that response from anyone:

Bringing the legitimate interests of creators in line with new technical possibilities is always difficult. We believe the currently proposed regulation does not do justice to either side. Since the trilogue compromise unfortunately also removed all meaningful exemptions for small companies, the proposed measures are entirely out of proportion to their consequences for platform operators.

For example, chefkoch.de would have to negotiate with all rights holders (in the world?) to license content that might potentially be uploaded—even though the platform doesn’t really have a copyright‑infringement problem, since it’s about recipes shared by hobby cooks. Alternatively, the platform could of course check all content for potential copyright infringements before publication.

Filters could be used for this. But their development effort is far from trivial—contrary to what is suggested in this FAZ article. Comparing this to Shazam is misleading: pattern recognition is Shazam’s core business, not a response to a regulatory requirement. A company of that size would likely have to license the technology from providers like Google, or it would have to review content manually with significant staffing costs. But even here, the comparison still breaks down.

A filter—whether human or automated—can’t actually judge whether a work infringes third‑party copyrights. It can only compare whether something resembles a known reference. In other words: for a platform to determine that a photo of an apple pie was taken by a different photographer than the person uploading it, the platform would first need to “know” all apple‑pie photos taken by photographers other than the uploader. It should be obvious that this requirement is simply impossible to meet.

Even if it were possible, you still couldn’t judge whether something is incidental inclusion (e.g. §57 UrhG) or a quotation. Consider recording a demonstration where, for a brief moment, you can hear a snippet of a song in the background.

This example shows why the consequences of the current proposal are completely disproportionate. Article 13 would at least have to include real exemptions for companies that aren’t even the primary target of the reform.

How Could It Be Done Better?

But there are completely different proposals for protecting creators. One idea could be to skim platform profits in favor of the creator in a notice‑and‑takedown case. And even though I personally find it irritating to have paid a flat copyright levy for my printer—despite not committing any copyright infringements with it—that might be the kind of compromise that could align the interests of creators with those of users.

Imagine if we had held manufacturers of scanners, tape recorders, cameras, computers, or printing presses liable for copyright infringements committed with their devices. The world would look very different.