What is the ARD? 

The ARD, for all of you not living in Germany, is part of a network of German (defacto-)tax-funded television. It is supposed to be more independent and be able to produce content that is not profitable for private television (like educational and cultural content), as well as objective, non sensationalist news.

Part 1 - Article 13 Explained 

This is the video I will be talking about and from which I will quote. It’s about the EU-Copyright reform, article 13 (or article 17 by now).

“Everything I say in this studio is protected as my intellectual property.”

This is already inaccurate. Firstly, the content presented by the moderator is unlikely to actually be written by the moderator itself - thus the moderator doesn’t own the intelectual rights to it, secondly, even the person or persons who actually wrote the piece are likely employees of the ARD. In Germany, and I would presume in most countries, the work one is paid to do during an employment, will be owned by the employer, in this case the ARD and not the individual person. Please remeber this as we will come back to it later in the segment.

“As soon as it floats through the internet, there is no longer any protection.”

This is wrong. While there might not be any technical barrier to copying the content - just because you can do something, doesn’t mean you are allowed to. There are laws against copyright infringement and there have been countless prosecutions and sentences in the area of online piracy. Saying that would be no protection is like saying there is no protection against other people running you over with their car. Of course nobody can stop them in the moment, but the criminal justice system will go after them. The same thing happens with people who infringe on copyright.

“Everybody can upload my (sic) [content], in any way they want […]”

Well, kind of. As just explained, you can run over people - just like you can upload copyrighted material - but you will face consequence of your actions if you are discovered. It’s true that the crime clearance rate for internet criminality is very low, but this problem isn’t limited to copyright.

“[…] edit it [the content], create a gaga-text from them or photoshop my head onto the body of Ingo Zamperoni. I wouldn’t like that.”

This is incorrect. Even the relatively strict german copyright laws explicitly allow for satire. So actually, creating a gaga-text or photoshop of this segment would actually be legal, while simply copying the segment is not. Shows like “Die Anstalt” or the “Heute Show”, both shows within the german public broadcasting network, do this all the time. Infact just like quoting, it’s an exception to copyright. It is irrelevant if the moderator - or the ARD - like it. As long as it doesn’t cross into diffarmation, it is legal and also an integral part of the principles of free speech which not the least protect the ARD themselves.

“The internet doesn’t know (sic) rules [limits].”

The internet does know rules and limits, namely the limits set by the same laws that apply everywhere else. For example, I am not allowed to spread false information about somebody, which would discredit that person. In the same way I am not allowed to just upload this segment. However I am allowed to quote it for the purpose of critism.

“Article 13 says, online-platforms like YouTube [etc..] are liable to for copyright infringement on their platform.”

While this is true, the implication made here, is that they aren’t at the moment, which is not true. Most of them are liable, if they don’t react as they are made aware of an infringement. The difference with article 13 is: There is now supposed to be a mechanism that makes sure this doesn’t happen in the first place.

(sic) “Non-commercial, […], and new, small businesses are exempted from the regulation.”

Yes they are, but there multiple problems here: What exactly is non-commercial? Does it mean they do not make money? Do they have to be a registered non-profit organization? What about a donate button? We have already seen these definitional problems with the regulation about legal information on websites, saying that every non-personal website has to have one. This basically led to everybody making one, because they weren’t (and couldn’t) be sure if they needed one. These are question the average person cannot answer and, frankly, the average company can’t answer. What is going to make a “small startup” and how to do you get this status? What if you are small startup now and in three years you suddenly have to implement so a filter and the filter itself is too expensive? These are important questions that still remain unanswered and may create legal limbos for years to come.

“It will be allowed to criticize or satire.”

Not because article 13 though, but because of a lot of other laws concerning copyright. Now this part is unremarkable by itself, but the writers of the segment have already demonstrated that they clearly have problems - like most people - to precisely define satire. I am in tech for years now, and like every other technical informed person I will tell you the following: It is completely impossible for an automated filter to recognize such content. It is simply out of the questions, such functionality is decades away at best and when it will exist eventually, it will be a costly high tech solution provided by a few big tech companies, likely making them more money than sites YouTube ever could.

This brings us to the inevitable point made later in the video which I will focus on now:

“The word Upload-Filter is not mentioned in the Text of article 13”

So how exactly is a platform like YouTube, or even a small company that has only 1000 uploads a day, supposed to check for copyright infringement? Check them by hand? Or as Karl-Nikolaus Peifer suggest “write it into the EULA”. So, what is that supposed to mean? Will I be fine if I just write “please don’t upload any copyrighted content” into the rules of my site and react when somebody notifies me of copyrighted work that still was uploaded to my platform? Because thats the current situation. One has to be kind of detached from reality to believe that this clause can lead to anything else but upload filters, especially since almost all experts which have some technical background say exactly this.

Part 2 - Fred Breinersdorfer 

Fred Breinersdorfer apparently is the author of the movie “Sophie Scholl - Die Letzten Tage”, a critical acclaimed drama about civil resistance in Nazi-Germany. He complains about finding parts of “his” movie on YouTube. Also he doesn’t necessarily seem to care about losing money, but about the fact that people merely seeing parts of his work would undermine his artistic intention.

At this point we have to think back to the beginning of the segment, when news-anchor claimed he would own the intellectual property rights to the content shown, because, it is unclear if Mr. Breinersdorfer actually owns the rights to the movie and while he might be still payed a provision for sold copies, I’d say it’s unlikely he actually holds the distribution rights.

This is important, because YouTube does have recognition for music and movies. It is possible to claim or take down the video - at least if you are the actual holder of the distribution rights. At this point we have arrived at the Viacom-problem: Having clips of your movie on YouTube has a high probability of increasing the sales of your movie. So even if it would be possible, for the Studio actually owning the distribution rights, to take down the clip automatically or at the click of a button, it’s unclear if they’d actually do it, because they might just want to maximize their profits - just like the some artists do.

Actually this part is kind of sad, because in an attempt to provide arguments for the reform the segment actually shows, how a proponent of the article seems to understand neither, the article, nor the current situation. Just to be clear about this: It’s OK to not understand something. I do not blame Fred Breinersdorfer for his statements I even admire his devotion as artist. I do blame the ARD for not thinking about his statements and likely failing to explain the entire situation to him before asking him for his opinion.

The problem is bigger than Article 13 

Now will the internet die overnight? No it won’t. Are Memes in any way important? Probably not. So why are so many young people going to the streets? Well, because in many ways article 13 is a symptom of a much bigger problem. Technical illiterate people making decisions about technical topics, sometimes because of some fringe lobby group. In many ways this whole situation is funny to me, because whenever for example the coal-industry does engage in lobbying, they mostly do it in private and laws impacting them are often passed as silently as possible.

But with article 13 the politicians in the EU didn’t even bother to hide it. They were so ignorant of the topic, they didn’t even understand the problem they were told to ignore. For many young people - like myself I might add - article 13 is not just a change they don’t like, it’s a manifestation of everything they think is wrong with politics.

The greater damage done 

I’m not going to deny that targeted disinformation on the internet is on the rise. I would like to see an objective news agency and I even think the only way to get one is through the concept of tax founded television (or news in general). I would like radical groups to disappear from politics. I would like to see a united Europe with people in charge, who try to do best for the people they have responsibility for. But at the same time I know that will not happen. The ARD, on average, is no doubt more reliable that most news-agencies, but at the same time I couldn’t take them seriously for a long time now, especially whenever they are talking about “fake news”, because if you criticize others for dishonesty, you better your own facts straight first.

A new Copyright law 

Copyright laws have to be improved, there is no doubt about that. There is now over a decade of experience with digital rights millennium act (a part of US copyright law). Why can’t we expand on the lessons learned from this legislation, perhaps one of the first with the existence of the internet in mind? We should have an open discussion about possible solutions and most importantly, these discussion must be had by people who understand the topic, lawyers, computer scientist and artists - and in the wake of that, maybe, we should also accept that the times have changed and we will never go back to the way media worked in the last century.

I want artists to paid the money they deserve, but I would like to hear the opinion of artists who actually are impacted by problems this reform tries to solve. I would like to ask them, what they think about artists that might be impacted negatively by this reform, because their satire content gets blocked by a malfunctioning filter nobody truly understands.

Feel free to send me a mail to share your thoughts!