{"id":19468,"date":"2022-11-29T01:03:44","date_gmt":"2022-11-29T01:03:44","guid":{"rendered":"https:\/\/mailinvest.blog\/index.php\/2022\/11\/29\/the-czech-republics-proposed-version-of-upload-filters-has-a-bad-idea-that-could-become-a-great-one\/"},"modified":"2022-11-29T01:03:44","modified_gmt":"2022-11-29T01:03:44","slug":"the-czech-republics-proposed-version-of-upload-filters-has-a-bad-idea-that-could-become-a-great-one","status":"publish","type":"post","link":"https:\/\/mailinvest.blog\/index.php\/2022\/11\/29\/the-czech-republics-proposed-version-of-upload-filters-has-a-bad-idea-that-could-become-a-great-one\/","title":{"rendered":"The Czech Republic\u2019s Proposed Version Of Upload Filters Has A Bad Idea That Could Become A Great One"},"content":{"rendered":"

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from the puzzling-through-upload-filters<\/i> dept<\/h3>\n

A clear demonstration that the\u00a0EU Copyright Directive<\/a> is\u00a0a badly-drafted law<\/a>\u00a0is the fact that it has still not been implemented in national legislation by all the EU Member States three years after it was passed, and over a year after the nominal deadline for doing so. That\u2019s largely because of the\u00a0upload filters<\/a>\u00a0of Article 17. The requirement to block copyrighted material without authorization while fully preserving users\u2019 rights is probably impossible to put in place in any straightforward way. As a result, national legislators have had to come up with various kinds of approximations when drawing up their local laws.<\/p>\n

Over on the Communia blog, Paul Keller has a good exploration of\u00a0how the Czech Republic is tackling the issue<\/a>. The current Czech proposal is particularly interesting because it is one of the first to be available after the EU\u2019s top court, the Court of Justice of the European Union (CJEU), brought a little clarity on the\u00a0safeguards that need to be included<\/a>\u00a0in national implementations of Article 17. Notably, the language of the latest version of the Czech law:<\/p>\n

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\u2026inserts one of the core findings of the CJEU ruling \u2014 that platforms can only be required to detect and block content on the basis of the information provided by rightholders and cannot be required to block content which, in order to be found unlawful, would require an independent assessment of the content by the platforms \u2014 into the Czech implementation. While it does so by referencing concepts developed by the [Advocate General in his\u00a0opinion on the CJEU case<\/a>], instead of the criteria from the final judgement, it is a welcome addition that will offer a better protection to users\u2019 rights than the literal implementation [originally] proposed by the government.<\/em><\/p>\n<\/blockquote>\n

Another innovation by the Czech lawmakers rightly tries to address the problem of platforms that repeatedly block or remove lawful user uploads. Unfortunately the way it proposes to do that is to shut down the entire platform. As Keller writes:<\/p>\n

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While it provides a powerful incentive for platforms not to overblock, invoking this remedy would result in substantial collateral damage that negatively affects the freedom of expression of all other uses of the affected platform.<\/em><\/p>\n

So what could a more reasonable \u2014 and less harmful\u2014 remedy look like? What if instead of threatening to shut down the offending platform, [it] threatened to shut down the upload filters instead: If it would prohibit the provision of the automated content recognition (ACR) system for the purpose of blocking or removal of user uploads?<\/em><\/p>\n<\/blockquote>\n

Shutting down upload filters that overblock is a really good idea, since the algorithmic filters lie at the heart of the problem with Article 17. Moreover:<\/p>\n

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if the scope of the injunctive relief would be limited to banning the continued provisions of overzealous upload filters, the proposed Czech implementation of Article 17 could even become a template for other Member States seeking to bring their implementations in line with the requirements of the CJEU while otherwise staying relatively close to the text of the directive.<\/em><\/p>\n<\/blockquote>\n

Let\u2019s hope the Czech Republic shows the way by adopting Keller\u2019s suggestion, and that other EU countries follow. It won\u2019t turn the Copyright Directive into a good law \u2013 nothing could do that \u2013 but it will blunt some of its worst effects.<\/p>\n

Follow me @glynmoody on\u00a0Twitter<\/a>,\u00a0or\u00a0Mastodon<\/a>.<\/em> Reposted from the Walled Culture<\/a> blog.<\/em><\/p>\n

\nFiled Under: article 17<\/a>, cjeu<\/a>, copyright<\/a>, czech republic<\/a>, knowledge<\/a>, overblocking<\/a>, upload filters<\/a>
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