Yesterday the Free Democratic Party (FDP) group in the German Bundestag (federal parliament) made the decision to bring a motion calling on the German government to prevent the adoption of the EU copyright reform bill in its current form by the EU Council. The government coalition parties (CDU/CSU and SPD) have already decided to refer a similar motion by the Left Party to the committees in an apparent attempt to stall the process in the federal parliament while the government would allow the bill to be adopted by the Council in the meantime. That shows just how uncomfortable they are. They don't want to come clean and take a position. With respect to the FDP motion, however, the decision on whether or not to hold an immediate vote will be made tomorrow, Thursday (April 4), right after the debate.
Here's my unofficial translation of the FDP motion:
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German Federal Parliament
19th legislative term
Motion
by the Members of Parliament Jimmy Schulz, Stephan Thomae, Grigorios Aggelidis, Renata Alt, Jens Beeck, Nicola Beer, Dr. Jens Brandenburg (Rhein-Neckar), Mario Bran-denburg, Dr. Marco Buschmann, Britta Katharina Dassler, Dr. Marcus Faber, Daniel Föst, Katrin Helling-Plahr, Markus Herbrand, Torsten Herbst, Katja Hessel, Manuel Höferlin, Dr. Christoph Hoffmann, Reinhard Houben, Ulla Ihnen, Olaf in der Beek, Gyde Jensen, Dr. Christian Jung, Thomas L. Kemmerich, Dr. Marcel Klinge, Da-niela Kluckert, Pascal Kober, Dr. Lukas Köhler, Carina Konrad, Konstantin Kuhle, Ulrich Lechte, Till Mansmann, Dr. Jürgen Martens, Alexander Müller, Roman Mül-ler-Böhm, Frank Müller-Rosentritt, Hagen Reinhold, Bernd Reuther, Matthias See-stern-Pauly, Judith Skudelny, Bettina Stark-Watzinger, Dr. Marie-Agnes Strack-Zimmermann, Benjamin Strasser, Katja Suding, Manfred Todtenhausen, Dr. Andrew Ullmann, Gerald Ullrich, Johannes Vogel (Olpe), Sandra Weeser, Nicole Westig, Katharina Willkomm, and the parliamentary group of the FDP
relating to the proposed Directive of the European Parliament and the Council on Copyright in the Digital Single (Market COM (2016) 593 final; Council doc. 12254/16 and Council doc. 6382/19)
here:
Resolution by the German Federal Parliament pursuant to Art. 23 para. 3 of the Basic Law in conjunction with Article 8 of the Law on Cooperation Between the Federal Government and the Federal Parliament in Matters Concerning the European Union
Rethink copyright -- without upload filters
May the Federal Parliament decide as follows:
I. The German Federal Parliament takes note:
1. On February 9, 2019, the Federal Government consented to the result of the trilogue on copyright reform (proposed Directive of the European Parliament and the Council on Copyright in the Digital Single Market. Two of its provisions are particularly controversial: the introduction of a European press publisher's right (Article 11 at the draft stage; now Article 15) and the provisions on the use of copyrighted content by online platforms (Article 13 at the draft stage; now Article 17); said provision effectively requires platforms to implement so-called upload filters.
2. Since the Council vote that was held on February 9, 2019, both government coalition parties have distanced themselves from the outcome of the trilogue with respect to at least Article 13 (now Article 17):
a. Nothwithstanding her consent, on the Federal Government's behalf, to the Council decision, Federal Minister of Justice [Katarina] Barley described the provision as a "wrong path" and recommended to the European Parliament the adoption of the reform bill without this controversial element (https://www.zdf.de/nachrichten/heute/uploadfilter-falscher-weg-barley-bedauert-ja-zu-reform-100.html). Furthermore, the SPD's [Social Democratic Party of Germany] March 23, 2019 convention voiced opposition to the [legislative] proposal and to the introduction of upload filters (https://www.spd.de/fileadmin/Dokumente/Parteikonvent_2019/Beschluss_Ja_zu_einem_starken_Urheberrecht_Nein_zu_Uploadfiltern.pdf).
b. The CDU [Christian Democratic Union of Germany] took a position against upload filters on March 16, 2019 and would now prefer to obviate them as well. To that effect, the CDU proposes a transposition of the reform measure into national law that would steer clear of the mandatory introduction of upload filters and proposes alternative compensation models (such as, for instance, bulk licenses) in their stead (https://twitter.com/NadineSchoen/status/1106662762091085824/photo/1?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1106662762091085824&ref_url=https%3A%2F%2Fblog.wdr.de%2Fdigitalistan%2Fschroedingers-uploadfilter-der-unglaubwuerdige-kompromiss-der-cdu%2F). It is, however, doubtful whether the copyright directive provides sufficient wiggle room for a solution along those lines. The EU Commission has already warned Germany against a "separate path" (statement by EU commissioner Guenther Oettinger, https://www.heise.de/newsticker/meldung/EU-Copyright-Oettinger-warnt-vor-deutschem-Sonderweg-ohne-Upload-Filter-4356086.html). Even in the event EU law allows such a national solution, such implementation constitutes a suboptimal solution at best, given that divergent regulatory approaches run counter to the objective of a digital single market and pose major challenges to platform operators.
3. Having said that, there is at this juncture a consensus between the parties in the German Federal Parliament that upload filters are the wrong tool to appropriately compensate right holders, creatives and licensors of copyrighted works in the Internet economy. If the government coalition parties' parliamentary groups had already reached this conclusion on February 9, 2019, and in accordance with their coalition agreement, the German Federal Government could not have consented to the reform package.
4. In the second week of April, the EU Council will hold its final vote on the reform bill. A [qualified] majority for the proposal requires the Federal Government's consent. Therefore, the Federal Government is in a position to stop the reform in its current form and to seize the opportunity to initiate the discussion of a copyright law that strikes a fair balance between the interests of creatives, users, right holders, licensors and platforms, even under the parameters of today's Internet economy, without unreasonably restricting the freedom of information and speech and the general freedom of the Internet. Such proposals are already on the table.
5. The Federal Government must take the necessary action and vote against the reform of the EU Copyright Directive in the final vote in the EU Council. The German Federal Parliament is conscious of the fact that Member States very rarely change their voting stance at this stage of legislative proceeding. However, the EU copyright reform bill is a legislative measure of extraordinary relevance to the future of the information society, as evidenced by the Europe-wide public debate over this bill (for instance, a petition signed by more than 5 million citizens https://www.change.org/p/stoppt-die-zensurmaschine-rettet-das-internet-uploadfilter-artikel13-saveyourinternet) and demonstrations in many European cities with more than 170,000 participants (https://netzpolitik.org/2019/demos-gegen-uploadfilter-alle-zahlen-alle-staedte/)).
II. Now, therefore, the German Federal Parliament calls on the Federal Government
1. to oppose, in the EU Council, the proposed Directive of the European Parliament and the Council on Copyright in the Digital Single Market; and
2. to vigorously espouse an EU-level reform of copyright law that strikes a fair balance between the interests of creatives, users, right holders, licensors, and platforms, even under the novel parameters of today's Internet economy, without unreasonably restricting, such as by means of upload filters, the freedom of information and speech and the general freedom of the Internet.
Berlin, this second day of April 2019
Christian Lindner [group and party chairman] and the parliamentary group [of the FDP]
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