EU upload filter - Germany's crucial deciding vote

Will Germany save us from the upload filter?

Tomorrow - Monday 15^th April - the EU Copyright Directive goes to the Council of Ministers. It has been anticipated that this would be the final stage of its legislative journey and that it would be rubber-stamped into law. However, the controversy over the upload filter (Article 17 - ex-13) has not abated and six countries have already announced that they cannot vote in favour. That means there is a blocking minority, but it is not quite sufficient yet to stop the Directive from getting into law. Crucially, the position of the German government hangs in the balance.

It has been assumed that the German government would vote in favour, but German domestic politics may intervene. If Germany joined the blocking minority, the Copyright Directive would not become law, not just yet anyway. Many who believe the upload filter is a censorship mechanism, and who consider that Article 17 (ex-13) fails to balance the different interests concerned, would welcome a German change of heart.

The countries comprising the blocking minority are the Netherlands, Luxembourg, Poland, Italy and Finland. They express concerns that the Copyright Directive, in its present form, does not strike the right balance between the three groups of stakeholders - rights holders, technology companies and European citizens. ( See Copyright Directive upload filter - why EU Council should block it). In addition, Estonia declared last week that its parliament has not been able to give a position on the final text.

In Germany, the upload filter is hotly controversial because there is fierce opposition to anything that is perceived to bring in censorship or to jeopardise rights to privacy. Young people have been demonstrating against the upload filter, with 200,000 taking to the streets.

This has created worries for German politicians, in view of the upcoming European Parliament elections. They are courting the youth vote, and as such the Socialist SPD have taken a position against the upload filter. There are additional worries about the hard right getting in to the European Parliament, and the Socialists need the youth to support them. A change of position to favour the upload filter could jeopardise the SPD chances of winning votes from young Germans.

The responsible Minister is Katarina Barley, who is the German Justice Minister (and incidentally is half-British). She is also the lead candidate for the SPD in the European elections. She has spoken out in opposition to the upload filter, but mysteriously voted for it. There are concerns that SPD support for the upload filter would be a negative for the party in the European elections.

On the assumption that agreement would be straightforward, the Copyright Directive has been scheduled to be voted tomorrow in the Agriculture configuration of the Council of Ministers. Ms Barley will have to give direction on how to vote to her colleague, the Agriculture Minister Julia Kloeckner (CDU).

There are moves to draw up a Protocol that would give Germany an opt-out to the upload filter. However, Germany's own European Commissioner has said that such an opt-out would not be possible.

If the Germans do not make up their mind by Monday afternoon, it looks like they will have to abstain. An abstention or a 'no' vote from Germany would add the necessary weight to the blocking minority that already exists and bring the upload filter to a halt. The outcome would be that the whole Copyright Directive would go back to the European Parliament for further deliberations in the new session after the elections.

Brexit angle:

In Britain, the European Parliament vote in favour of the Copyright Directive with the upload filter in Article 17 (ex-13) has given an opportunity to Brexiteers and those on the political hard right, in the sense that it provides an example of a bad piece of EU law for them to point at.

On the other hand, if the Council were to reject the Copyright Directive and send it back to the Parliament, that would provide a positive example to the British people, of how the EU sometimes gets things wrong, but it has ways of putting them right.

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Further analysis of EU Copyright Directive Article 13:

EDRi's verdict on the European Parliament vote on the Copyright Directive: Censorship machine takes over EU internet

Innocenzo Genna: Art.13 of thenew Copyright Directive and the censorship machine, for dummies

Joe McNamee : ENDitorial: The Commission's new filtering adventure

EDRi: Deconstructing Article 13

Felipe Romero-Moreno : 'Notice and staydown' and social media: amending Article 13 of the Proposed Directive on Copyright

ABOUT ME:

Contact me if you would like to discuss any of the issues raised (Via Contact Us page or Twitter @Iptegrity).

For new Iptegrity readers, I have been analysing EU policy for over 10 years ( see 10 years of Internet wars ), and have considerable experience of interpreting EU documents, which are sometimes quite opaque.

In the current political climate of Brexit, I would like to avoid any mis-understanding about my position on the EU. Over the past 10 years as an analyst of EU policy, I have come to value its openness to critical commentary and citizen access at multiple levels. The EU is imperfect, like any political insitution, but relative to others, it has a system that enshrines democratic values and facilitates robust scrutiny of policy proposals. I believe in working with Europe, not against it.