Article 17 stakeholder dialogue (day 6): Hitting a brick wall

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This week saw the sixth meeting of the EU stakeholder dialogue on the implementation of Article 17 of the new copyright directive. This meeting was the first one where the question of how to reconcile the protection of user rights’ with automated filters based on technology that cannot assess the legality of the use of copyrighted works was explicitly on the agenda. From the perspective of the users’ organisations participating in the stakeholder dialogue this is the main question that the stakeholder dialogue (and the guidelines that the Commission will have to issue afterwards) needs to address. 

Unfortunately, Monday’s meeting did not result in a productive discussion about how to protect users’ rights. Proposals made by COMMUNIA and Studio71 on how to strike a balance between the rights of users and the interests of creators and other rightholders were largely ignored by a coalition of major rightholders from both the music and the audio-visual sectors. Working in concert, the representatives of the Hollywood studios (MPA), film producers (FIAFP), commercial television channels (ACT), major record labels (IFPI) and music publishers (ICMP) disputed the fact that there is a tension between protecting users rights and automated blocking, restated their conviction that Article 17 is only about empowering them versus the platforms, and suggested that users should simply trust that rightholders will not block free speech or other legitimate uses. In doing so they have made it clear that they want their interests to prevail at all cost, that users should not be trusted and that for them user rights are something that should exist at their discretion. 

This outcome leaves the European Commission in the difficult position to make sense of the input gathered throughout the previous six meetings and to outline a way forwards. Fortunately it seemed that the Commission is not willing to succumb to the unconstructive behaviour exhibited by rightholders and will take serious its task of finding a balance between users rights and the interests of different types of rightholders. 

A proposals for protecting users’ rights

So how could such a balance look like and what is at stake? One of the key insights that emerged from the previous rounds of the stakeholder dialogue is that even the most advanced content recognition technology is incapable of understanding the context in which works are used. This means that technology alone cannot make the determination if a use is lawful or not. Article 17 requires platforms to take measures to prevent the availability of content that rightholders want to keep off the sharing platforms and, at the same time, to ensure that legitimate uses (such as quotations or parodies) are not affected. This means that no matter how good it is at recognising content, ACR alone cannot meet the requirements of the directive. Continue reading

Article 17 stakeholder dialogue (day 5): It all depends

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Last week Thursday saw the 5th meeting of the Commission’s stakeholder dialogue on Article 17 of the copyright directive. On paper this meeting was the first meeting where the stakeholders had the opportunity to discuss the actual provisions contained in Article 17 of the directive in order for the Commission “to gather evidence, views and suggestions that the services of the Commission can take into account” when preparing its guidelines on the application of Article 17. 

Contractual freedom über alles

In reality (recording available here), the 5th meeting was the meeting where it became clear that the vast majority of represented stakeholders is not interested in constructively contributing to the process and is instead participating in order to actively undermine the stakeholder process. Interventions made by commercial rights holders from the Music and AV sectors, as well as by platforms, focused on demanding maximum contractual freedom and arguing that the Commission’s guidelines should not contain any binding requirements. When asked to provide input for defining core concepts of the directive (such as “best efforts to obtain authorisation” and “best efforts to prevent availability”), most stakeholders limited their contribution to countless variations of “it depends” or theorising about “dynamic concepts”.

While there were some notable exceptions (apart from users organisations, collective management organisations and journalists’ organisations provided substantive input), it can hardly be surprising that both rightholders and big platforms have no interest in substantive guidelines that would offer meaningful safeguards for user rights. Continue reading

Article 17 stakeholder dialogue: What have we learned so far

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This analysis was previously published in two instalments on the Kluver Copyright Blog (part 1, part 2).

As 2020 unfolds, the European Commission’s stakeholder dialogue pursuant to Article 17 of the Directive on Copyright in the Digital Single Market (CDSM directive) enters its third (and likely final) phase. After four meetings that focussed on gathering “an overview of the current market situation as regards licensing practices, tools used for online content management […] and related issues and concerns”, the next two (or more) meetings will finally deal with issues raised by the provisions in Article 17 of the CDSM directive. According to the Commission’s discussion paper for the meetings of 16 January and 10 February 2020, the objective of the third phase “is to gather evidence, views and suggestions that the services of the Commission can take into account in preparing the guidance pursuant to Article 17(10)”. 

In other words, after four meetings that have set the scene, the stakeholder dialogue will now address some of the thorny issues raised by Article 17. These include the key concepts like the best effort obligations to obtain authorisation and to prevent the availability of content (Article 17(4)), as well as the safeguards for legitimate uses of content (Article 17(7)) and the complaint and redress mechanisms available to users (Article 17(9)). In preparation for these forthcoming discussions, it is worth recapitulating what we have learned since the stakeholder dialogue kicked off in October of last year. 

Three takeaways from the stakeholder dialogue so far

After more than 25 hours of discussion (recordings of the four meetings can be found here: 1, 2, 3 and 4), there are three main insights that will likely have a substantial impact on the overall outcome of the stakeholder dialogue. These are the different motivations of different types of rightholders; the technical limitations of Automated Content Recognition (ACR) technologies; and the general lack of transparency with regards to current rights management practices. The first two of these are discussed in this post and the third will be covered in part 2 which will be published shortly. Continue reading

Open letter: More transparency for the Stakeholder dialogue

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Stressing the importance of protecting user rights
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Yesterday COMMUNIA, Liberties, EDRI, IFLA, Save the Internet and 38 other organisations representing users, citizens and creators sent an open letter to the European Commission asking for a more transparent approach to Article 17 stakeholder dialogue that is currently ongoing in Brussels (see our previous posts on the stakeholder dialogue here).

In this letter we are making two demands, one procedural in nature and one on the substance of the discussions. Regarding the procedure we are asking the Commission to commit to publishing a draft of its guidelines for the application of Article 17 of the DSM Directive during the stakeholder dialogue in order to give us (and all other stakeholders) the ability to scrutinise the proposed guidelines and provide the Commission with feedback.

In terms of substance the letter repeats the key demand that users’ organisations (backed by a large number of academics) have been expressing throughout the stakeholder dialogue namely that …

… the guidelines must ensure that the protection of “legitimate uses, such as uses under exceptions or limitations” as required by Article 17(9) of the Directive takes precedence over any measures implemented by online content-sharing service providers (OCSSPs) to comply with their obligations under 17(4) (b) (c). Automated filtering technologies can only be used if OCSSPs can demonstrate that their use does not affect legitimate uses in any negative ways.

The next meeting of the stakeholder dialogue will take place tomorrow and (you will be able to find a web stream here). Follow us on twitter for updates from the meeting (we will also publish a report here later this week).

Article 17: Both French and Dutch implementation proposals lack key user rights safeguards

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Selective implementations sacrifice user rights
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As of January 2020 there are two Member States that have published legislative proposals for the implementation of Article 17 CDSM. In July the Netherlands published a proposal for an implementation law for public consultation that implemented all provisions of the CDSM directive. Then, in early December, France published the proposal for a project for a law on audiovisual communication and cultural sovereignty in the digital era that implements some of the CDSM directive provisions, including Article 17 (see a first analysis of the French proposal by Julia Reda here).

These first implementation proposals are coming from a main proponent of Article 17 (France) and one of the most vocal opponents (Netherlands), and allow us to get a first impression of how Member States across the EU are likely going to deal with this controversial article. Irrespective of the different positions by France and the Netherlands during the directive negotiations, the implementation proposed by both Member States do not diverge much from each other. 

Both the laws stay very close to the text of the directive: The French implementation largely follows the order of the different sections of the directive via two nearly identical articles, one dealing with copyright (L137) and the other dealing with related rights (L219). The Dutch implementation law follows its own structure and introduces 3 articles (29c, 29d and 29e) that deal with copyright and one article (19b) that declares these articles to also apply to neighbouring rights. 

Selective implementations

The general approach chosen by both legislators is to transpose the text of Article 17 (paragraphs 1-6 and 8 and the definition of online content-sharing service providers (OCSSP) from article 2(6)) as closely as possible into their national law.

Neither of the legislators transposes paragraph 17(7) (that introduces crucial safeguards protecting uses under exceptions and limitations) and both only transpose parts of paragraph 17(9) (that imposes an obligation on OCSSPs to operate a complaint and redress mechanisms for users in the event of disputes over the takedown and staydown procedures). None of the legislators provide any further guidance on how platforms are supposed to meet the requirement to make “best efforts to obtain authorisation” from rightholders. Continue reading

Article 17 stakeholder dialogue (day 4): it’s all about transparency

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The fourth meeting of the Article 17 stakeholder dialogue took place in the last week before the holiday break. Just like the third meeting, this meeting was dedicated to (more or less) technical presentations on content management technologies and existing licensing practices. In total there were 12 presentations from platforms (Facebook, Seznam, Wattpad), providers of content management tools (Audible Magic, Ardito, Fifthfreedom, Smart protection), rightholders (GESAC, Universal Music Publishing, Bundesliga) as well as by BEUC and the Lumen database.

Filters are context-blind

The day’s presentations largely repeated the lines of arguments different stakeholders had presented during the previous meetings (a recording of the full meeting can be found here). Most notably all providers of content recognition technology confirmed that their technology does not go beyond simple matching of files and cannot understand the context in which a use takes place. Audible Magic summarised this in their opening statement:

Copyright exceptions require a high degree of intellectual judgement and an understanding and appreciation of context. We do not represent that any technology can solve this problem in an automated fashion. Ultimately these types of determinations must be handled by human judgement […]

As we have argued after the third meeting of the stakeholder dialogue, this is an unsurprising but significant insight as it means that current technology cannot be used to automatically block or remove content uploaded by users. 

Platforms don’t trust rightholders

The presentation given by Facebook about Facebook Rights Manager, its in-house content recognition tool, highlighted another problem that such tools are facing: One of the “main challenges” that Facebook is facing with its Facebook Rights Manager tool is that rightholders abuse the tool by claiming rights in works that they do not own. As a result Facebook only makes the most sensitive functionalities (such as automated blocking of uploaded content) available to a small group of carefully vetted trusted rightholders. Continue reading

Implementing the new EU press publishers’ right

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Last week, we launched our Guidelines for the Implementation of the DSM Directive. This is part of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the new exclusive right granted to EU press publishers by the new Copyright Directive.

For a detailed analysis, please read Communia’s guide on Article 15, authored by Timothy Vollmer, Teresa Nobre and Dimitar Dimitrov.Continue reading

Implementing the new EU provision that protects the public domain

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Last week, we launched our Guidelines for the Implementation of the DSM Directive. This is part of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the mandatory provision in the new Copyright Directive that ensures that faithful reproductions of public domain works of visual art cannot be subject to exclusive rights.

For a detailed analysis, please read Communia’s guide on Article 14, authored by Paul Keller, Teresa Nobre and Dimitar Dimitrov.Continue reading

Implementing the new EU provisions that allow the use of out-of-commerce works

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Last week, we launched our Guidelines for the Implementation of the DSM Directive. This is part of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the mandatory provisions in the new Copyright Directive that allow cultural heritage institutions to digitise and make out of commerce works in their collections available online.

For a detailed analysis, please read Europeana and Communia’s guide on Articles 8-11, authored by Ariadna Matas and Paul Keller. Continue reading

Implementing the new EU protections against contractual and technological overrides of copyright exceptions

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This week, we launched our Guidelines for the Implementation of the DSM DirectiveThis is part of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the mandatory provisions in the new Copyright Directive that prevent contractual and technological overriding of some of the new copyright exceptions.

For a detailed analysis, please read Communia’s guide on Article 7, authored by Teresa Nobre and Natalia Mileszyk. Continue reading