Articles 11 & 13 from the EU Copyright Directive

[Alpha1]

My site's most recent post ID is well above 2 million, so...

 

[Kirby]

Wait a second.
Now I am gonna be immediately liable when someone posts a copyright infringing post?
Really? Is this seriously correct?

Yes, exactly - this is what this planned directive is about:
Preventing licensed content from appearing on websites without the licensors getting paid.
So you must make sure that there is no unlicensed content on your site, if not you have to pay - simple as that.

How you do that is entirely up to you.

However, there is one excpetion:
You must not pay if you can prove that you have taken "every possible action" to prevent posting of unlicensed content on your website, and it will be up to courts to define what "every possible action" would be - common sense is that this is only achievable by using sophisticated scanners/filters on every content (text, image, video, etc.) before it does get published.
Of course you must still remove/block unlicensed content that slipped through in this case once a valid notice has been filed.

So when this goes live, I can come to XF and copy/paste my own pictures here from a 2nd account (behind a VPN) nobody is aware of and then I can sue XF for copyright infringement with my main account saying that XF has no rights in using my images?

You can't, because you can't violtate copyright by posting your own content - you are the copyright holder.

 

[Kalo]

My site's most recent post ID is well above 2 million, so...

I hope all goes well on your site and I can see you've done good job securing it.

I just wanted to emphasise that the directive discussed here is not yet been finalised, since it's still being debated.

I'm sharing this video which is concerning YouTube and all social medias:

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[Kalo]

You can't, because you can't violtate copyright by posting your own content - you are the copyright holder.

I'm sorry but I got lost here.

If @sbj is the copyright holder of a picture and posts it on Xenforo, then Xenforo would be held liable unless Xenforo has sharing licence from @sbj.
The directive would care less about @sbj being user in the forum, it would go after Xenforo nonetheless. In short ''No licence, no posting''.

 

[Mendalla]

You can't, because you can't violtate copyright by posting your own content - you are the copyright holder.

He suggesting that he would post them under a fake account hidden by a VPN and then claim from his real account they were stolen. Which would, of course, be fraud in most jurisdictions.

 

[Kalo]

He suggesting that he would post them under a fake account hidden by a VPN and then claim from his real account they were stolen. Which would, of course, be fraud in most jurisdictions.

Question is:

Can users post images without providing a sharing licence first?

The point and issue of the directive is to hold liable forum owners for user uploads, not the users.

 

[sbj]

How you do that is entirely up to you.

However, there is one excpetion:
You must not pay if you can prove that you have taken "every possible action" to prevent posting of unlicensed content on your website, and it will be up to courts to define what "every possible action" would be - common sense is that this is only achievable by using sophisticated scanners/filters on every content (text, image, video, etc.) before it does get published.

So it is a gray area until one court defines what is "every possible action" to prevent such things. But there are no sophisticated filters for every content. There is no such database in the world to check every item. So basically all servers will be liable for anything. And as a website owner we will be liable too. Even if I used the XF's approval system and would approve manually each video/image/post, how on earth can I know what post is copyrighted or not?
I have to shut down the forum basically.

You can't, because you can't violtate copyright by posting your own content - you are the copyright holder.

You misunderstood, see this:

He suggesting that he would post them under a fake account hidden by a VPN and then claim from his real account they were stolen. Which would, of course, be fraud in most jurisdictions.

Of course it be a fraud from my side, but nobody can prove anything that I set it up on purpose. Nobody would know but me. And then I would sue any website telling them that they were using my copyrighted work.

 

[Kirby]

If @sbj is the copyright holder of a picture and posts it on Xenforo, then Xenforo would be held liable unless Xenforo has sharing licence from @sbj.
The directive would care less about @sbj being user in the forum, it would go after Xenforo nonetheless. In short ''No licence, no posting''.

I am not a lawyer, but I doubt that this would legally work (to some extend it might work practically, though) - otherwise it would be a damn good business model:
Create copyrighted content, upload it everywhere and sue whoever accepts the upload for publishing unlicensed content

That would be a bit like "stealing" my own car and telling the police and my insurance company that it has been stolen, eg. fraud.

If a licensor himself publishes content, he implicitly grants a license.

 

[sbj]

Create copyrighted content, upload it everywhere and sue whoever accepts the upload for publishing unlicensed content

But that is exactly what these laws will allow us to do.

If a copyright holder himself publishes content, he implicitly grants a license.

It depends on under what terms. I mean XF is licensing their software to us but it doesn't allow me to re-post their software somewhere else on the internet.

 

[Kirby]

But that is exactly what these laws will allow us to do.

It does not (well, at least theoretically it does not), but as said, it might broaden fraud vectors.

 

[sbj]

It does not (well, at least theoretically it does not), but as said, it might broaden fraud vectors.

Well, nobody can check the source. But I can do it also legally. I will tell my brother to publish my stuff and then I will sue. Not hiding behind anything. Of course I won't sue my brother, which would be an option, but as I am the copyright holder, I can decide who I want to sue. But I will sue any kind of website which has my stuff. Totally legal from my side.

In Germany "Abmahnung wegen vermeintlicher Urheberrechtsverletzungen" (a written reminder for copyright infringement) is also a common popular trick. You will find tons of lawyers specializing in these kind of stuff to sue you for money.
They can even sue you for not having the Impressum (Imprint) of your website if your forums is a commercial one (like you have ads on it).

I don't see why people won't abuse such a system if those 2 articles pass it.

 

[Kirby]

But I can do it also legally. I will tell my brother to publish my stuff and then I will sue.

In that case you theoretically can't sue because your brother published your stuff with your consent, eg. you implicitly granted him a license to do that so whatever content created by you he uploads is perfectly legal.
Theoretically.
In practice, it might be pretty difficult if not impossible to prove that.

In Germany "Abmahnung wegen vermeintlicher Urheberrechtsverletzungen" (a written reminder for copyright infringement) is also a common popular trick. You will find tons of lawyers specializing in these kind of stuff to sue you for money.
They can even sue you for not having the Impressum (Imprint) of your website if your forums is a commercial one (like you have ads on it).

Yeah, I know - I am from Germany

I don't see why people won't abuse such a system if those 2 articles pass it.

There is no doubt that it will be abused. But that does not mean that such abuse is legal, that's what I tried to point out.

 

[sbj]

In that case you theoretically can't sue because your brother published your stuff with your consent, eg. you implicitly granted him a license to do that so whatever content created by you he uploads is perfectly legal.
Theoretically.

No, you assume something which is not correct. I never granted my brother a consent that he can publish my stuff. I only allowed him a license of using it for himself, just like XF only allows us to use their software for a single domain. Neither I have the license to publish XF's software somewhere else, nor will my brother in the future will have the license to publish my stuff.
Again, I only granted him to use it for himself, not a license that he can publish/redistribute my stuff.

Yeah, I know - I am from Germany

Good old Germany .

 

[Kirby]

Hmm ...

I never granted my brother a consent that he can publish my stuff. I only allowed him a license of using it for himself

I will tell my brother to publish my stuff and then I will sue.

So either I am not understanding smth. correctly or your initial post was wrong:
If you tell your brother (eg. give him the order) to publish your stuff he acts as your agent ("Erfüllungsgehilfe"), so from my understanding it would be impossible to claim that he is not authorized to publish.

 

[sbj]

Hmm ...
So either I am not understanding smth. correctly or your initial post was wrong:
If you tell your brother (eg. give him the order) to publish your stuff he acts as your agent ("Erfüllungsgehilfe"), so from my understanding it would be impossible to claim that he is not authorized to publish.

Well I will tell him to use it only for himself and he will "accidentally" publish my stuff on the internet without my knowledge.
It is like I lend him my t-shirt so he can wear my t-shirt. But then he lends my t-shirt without my knowledge to someone else even though without having the order or the permission to do so.

I thought it was clear what I meant, but I see now that my initial post is not correct because of how I described the situation.

So basically there will be no permission or the order. Just he can use it for himself. But without my permission he will distribute it. But I won't sue my bro of course because of the violation of my copyright, but I will sue all websites where my bro published my stuff.

I know, I am playing devil's advocate here but I find these new articles ridiculous.

 

[Kalo]

It depends on under what terms. I mean XF is licensing their software to us but it doesn't allow me to re-post their software somewhere else on the internet.

Some argue that if you are fashion photographer and you take a picture of a model and behind her there is Burger King, you would have to have A) Licence form the designer of her clothes and B) Licence from Burger King for using their logo (and all of that if you only have the model and Burger King in the frame) then you'll be able the licence your photo.

So this would limit greatly your photography career.

So I imagine that if you are to post your photo on a forum you would not be able to without a specific sharing licence for that forum, then if you want to post it on another forum you would have to make another licence for them as well, and this goes on and on... The idea behind it is that you can acquire the largest amount of revenue form a singe photo. That's what started all this. Creators and artist such as Paul McCartney claiming that they are not getting all the revenues from their works. That's why the EU wants to implement that directive to help creators and obviously earn extra money from lawsuits.

 

[Kirby]

Well I will tell him to use it only for himself and he will "accidentally" publish my stuff on the internet without my knowledge.
It is like I lend him my t-shirt so he can wear my t-shirt. But then he lends my t-shirt without my knowledge to someone else even though without having the order or the permission to do so.

Well, that would be an entirely different situation. In this case you most likely can sue.

I thought it was clear what I meant, but I see now that my initial post is not correct because of how I described the situation.

To be honest - it was clear (at least to me).
But when talking law, you have to be absolutely precise in describing things and leave no room for possible interpretation, because if you do your opponent will interpret it against you

But I won't sure my bro of course because of the violation of my copyright, but I will sure all websites where my bro published my stuff.

You can do that to some extend, but if you do it for an extended period of time and don't also sue your brother this might open a tiny defense vector for the sued websites:
§ 242 BGB, BGH judgement I ZR 86/12 by 02/06/2014

 

[sbj]

@Kalo

Well there is an outcry on the internet because of these 2 articles for months now, but I didn't take the time to convert all the information for forums. With this thread I see the scope of it now, what it would mean for all of us specifically.

What an irony. Maybe one of the greatest thieves McCartney and his band (The Beatles) going all-in for copyrights. How pathetic.
They stole so much music from Blacks in their time (Soul, RnB) and became famous in copying and plagiarizing black artists' music.

But when talking law, you have to be absolutely precise in describing things and leave no room for possible interpretation, because if you do your opponent will interpret it against you

You are absolutely right.
I should have been more precise. But we understand each other .

You can do that to some extend, but if you doit for an extended period of time and don't also sue your brother this might open a tiny defense vector for the sued websites:

Yeah, I was thinking of sth. similar like that, too. One can't exploit the system for much long, but until one is caught... On eBay people were abusing the system because of copyright infringement for years, and still it goes on. Same for those reminders I talked about.
One would think "no way the system will allow such a thing", but the system is so slow and often not perfect...

Thank you and @Kalo for all the explanations though.

 

[Kalo]

Letter from Tim Berners-Lee, Inventor of the World Wide Web and others to Antonio Tajani MEP, President of the European Parliament

12 June 2018
Mr President,

Article 13 of the EU Copyright Directive Threatens the Internet​

As a group of the Internet’s original architects and pioneers and their successors, we write to you as a matter of urgency about an imminent threat to the future of this global network.

The European Commission’s proposal for Article 13 of the proposed Directive for Copyright in the Digital Single Market Directive was well-intended. As creators ourselves, we share the concern that there should be a fair distribution of revenues from the online use of copyright works, that benefits creators, publishers, and platforms alike.

But Article 13 is not the right way to achieve this. By requiring Internet platforms to perform automatic filtering all of the content that their users upload, Article 13 takes an unprecedented step towards the transformation of the Internet from an open platform for sharing and innovation, into a tool for the automated surveillance and control of its users.

Europe has been served well by the balanced liability model established under the Ecommerce Directive, under which those who upload content to the Internet bear the principal responsibility for its legality, while platforms are responsible to take action to remove such content once its illegality has been brought to their attention. By inverting this liability model and essentially making platforms directly responsible for ensuring the legality of content in the first instance, the business models and investments of platforms large and small will be impacted. The damage that this may do to the free and open Internet as we know it is hard to predict, but in our opinions could be substantial.

In particular, far from only affecting large American Internet platforms (who can well afford the costs of compliance), the burden of Article 13 will fall most heavily on their competitors, including European startups and SMEs. The cost of putting in place the necessary automatic filtering technologies will be expensive and burdensome, and yet those technologies have still not developed to a point where their reliability can be guaranteed. Indeed, if Article 13 had been in place when Internet’s core protocols and applications were developed, it is unlikely that it would exist today as we know it.

The impact of Article 13 would also fall heavily on ordinary users of Internet platforms— not only those who upload music or video (frequently in reliance upon copyright limitations and exceptions, that Article 13 ignores), but even those who contribute photos, text, or computer code to open collaboration platforms such as Wikipedia and GitHub.

Scholars also doubt the legality of Article 13; for example, the Max Planck Institute for Innovation and Competition has written that “obliging certain platforms to apply technology that identifies and filters all the data of each of its users before the upload on the publicly available services is contrary to Article 15 of the InfoSoc Directive as well as the European Charter of Fundamental Rights.”

One of the particularly problematic provisions of Article 13 as originally proposed by the Commission, and in the compromise texts put forward by the Council and the Parliament, is that none of these versions of the text would provide either clarity or consistency in their attempts to define which Internet platforms would be required to comply with the provision, and which may be exempt. The resulting business uncertainty will drive online platforms out of Europe and impede them from providing services to European consumers.

We support the consideration of measures that would improve the ability for creators to receive fair remuneration for the use of their works online. But we cannot support Article 13, which would mandate Internet platforms to embed an automated infrastructure for monitoring and censorship deep into their networks. For the sake of the Internet’s future, we urge you to vote for the deletion of this proposal.

Source: 70+ Internet Luminaries Ring the Alarm on EU Copyright Filtering Proposal

It's more than clear that Article 13 in it's present form, would change the way our forums operate in the European Union.
We are all service providers and our forums are more than just sharing platforms, they are means to obtain revenue for us and our users.

 

[Alpha1]

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