Member States watch: User rights safeguards must be fully implemented into national laws

The Letter Writer
Submissions in Hungary and the Netherlands
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As part of our implementation project we are tracking the national implementations of the DSM directive in the different EU member states and are working together with local advocates and civil society organisations to make sure that national implementations are as good as possible from the users and public interest perspectives. As part of this work we are also occasionally providing input into national legislative processes. Earlier this week we made a submission to the public consultation in Hungary and expressed concerns about shortcomings of the Dutch implementation law in a letter to the Dutch Parliament.

Hungary: The importance of the pastiche exception

Last month the Hungarian Ministry of Justice and the Hungarian Intellectual Property Office (HIPO) published a consultation proposal on the transposition of the DSm directive into Hungarian law.

Hungary is one of the EU member states that currently does not have an exception for parody, caricature or pastiche in their Copyright Act. Article 17(7) of the DSM directive requires all Member States to “ensure that users […] are able to rely” on exceptions or limitations authorising use “for the purpose of caricature, parody or pastiche”. Consequently Hungary must introduce such an exception as part of the implementation of the directive. The consultation proposal identified two different options to meet this requirement:

  • an exception allowing “anyone to use any work for the purposes of (…) parody by evoking the original work and by expressing humour or mockery” (Option A), or
  • an exception allowing “anyone to use any work for the purposes of (…) creating a parody, caricature or pastiche” (Option B).

In our submission to the consultation (Hungarian, English) we pointed out that Option A, by omitting caricature and parody, fails to properly implement the DSM directive and that therefore the Hungarian legislator should go with Option B. Option B, in line with our longstanding position on exceptions and limitations in the EU copyright framework, recommends to closely follow the language of the exception contained in Article 5(3)(k) of the Information Society Directive. By taking over the wording of the prototype exception and leaving the interpretation of the concepts of parody, caricature and pastiche to the courts, Option B takes full advantage of the policy space that is available to Member States and enables the harmonization of these concepts across the EU. This is especially important since in the context of Article 17, the concept of pastiche will likely become an important safeguard for the freedom of expression.

By settling on Option B the Hungarian legislator can both ensure that the Hungarian implementation complies with the requirements of the directive and set a positive precedent for other Member States who seek to implement the directive in a user rights preserving manner.

The Netherlands: User rights safeguards must be part of the package

In the Netherlands the proposal for a law implementing the DSM directive has been introduced into Parliament on the 11th of May. While the Netherlands has been one of the steadfast opponents of Article 17 during the discussion on the European level, the national implementation proposal fails to implement key provisions of the directive that are aimed at protecting users rights. It is now up to the Dutch Parliament to amend the law to ensure that it meets the requirements of the directive and protects freedom of expression from overblocking caused by automated filters.

Together with Bits of Freedom and supported by Vrijschrift.org, Open Nederland and Wikimedia Nederland, we have written a letter to the Members of the Dutch Parliament, providing them with a list of recommendations to improve the implementation law. These include:

  • The imposition of a legal requirement on online content-sharing service providers to ensure that their collaboration with rightholders does not result in the blocking or removal of user uploads that do not infringe copyright, for example because they are covered by an exception or limitation or because copyright has expired.
  • The introduction of sanctions for the repeated abuse of upload filters by anyone claiming rights in works that they do not own.
  • The introduction of further clarifications of the definition of online content sharing providers in line with the language of Recital 62 to create more legal certainty for platforms that do not play an important role in the online content market.

These additions will be crucial to ensure that the Dutch implementation of the directive reproduces the balance between the rights of users and rightholders contained in the directive. As the Dutch implementation law allows the government to establish further rules based on the guidelines to be issued by the Commission, the final impact of the implementation law remains to be seen. In the meanwhile we will work with legislators to maximise the user rights safeguards contained in the directive.

Given that the Netherlands is the country that is the farthest in the implementation process, it will also be important that the Dutch legislator sets a positive example for implementing the directive. This includes implementing all parts of the legislative compromise found by the EU legislator after almost three years of intensive legislative wrangling.

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