Yesterday 51 leading European copyright scholars published a statement on “Safeguarding User Freedoms in Implementing Article 17 of the Copyright in the Digital Single Market Directive“. The statement is intended as input into the ongoing stakeholder dialogue. It focuses on the interplay between user rights and the filtering obligations established by Article 17. From the Kluwer Copyright blog:
Against this backdrop, a group of European academics (including the author of this post) has drafted a document with recommendations on user freedoms and safeguards included in Article 17 of the DSM Directive – namely in its paragraphs (7) and (9), to be read in the context of the aforementioned stakeholder dialogues. The recommendations are divided into three sections: on promoting licensing and limiting preventive measures; on exceptions and limitations in Article 17 (user freedoms); and on minimizing the risks of broad filtering and over-blocking (user safeguards). Despite the controversial nature of the topic, the recommendation has already been endorsed by around 50 European academics in this area, which is a testament to its balanced approach. Our intention is that these recommendations and interpretative guidelines are taken into consideration by the Commission, stakeholders, and Member States in their discussions on national implementations of Article 17 DSM Directive.
Based on a close reading of paragraphs 17(7) and 17(9), the academics show that Article 17 requires online platforms (OCSSPs in the language of the directive) to prioritise protecting users rights over blocking content. This statement provides strong support for our positions in the stakeholder dialogue.
In line with our argument that “Users across the EU must be able to rely on a broad spectrum of exceptions and limitations“, the academics argue that both the parody and quotation exceptions referred to in Article 17(7) must be implemented in all member states. The group of academics also suggests that national lawmakers should strengthen user rights by implementing other exceptions such as the exception allowing incidental inclusion of protected works.
The statement also supports our position that “User rights safeguards must protect uses of exceptions and limitation by default“. They point out that given that Article 17(9) establishes that the “Directive shall in no way affect legitimate uses, such as uses under exceptions or limitations provided for in Union law” any user uploads that do not qualify as “prima-facie” (obvious) infringements cannot be automatically blocked. Instead users must be given the opportunity to assert their rights under exceptions. Uploads should only be taken down after a rightholders have provides duly justified request to the OCSSP.
If implemented in line with the interpretation provided in the academic statement, Article 17 would actually introduce much stronger safeguards for user rights than those that exist under the current law. From our perspective the academic statement is a very welcome intervention into the discussion and we hope that the upcoming meetings of the stakeholder dialogue will focus on further developing these principles.