DSM Directive implementation update: more proposals to protect users’ rights

Gennaro
Five months to go ...
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The implementation deadline for the Copyright in the Digital Single Market is a mere five months ahead of us. On the 7th of June, the EU Member States are expected to have implemented the 2019 update of the EU copyright rules. With less than half a year to go, it is looking increasingly unlikely that more than a small handful of Member States will manage to implement the new provisions by the deadline. In this post, we are taking stock of the implementation process focussing on what has changed since our update from a month ago

While the past month included the holiday break, there have still been some significant developments. This included the first member state to have completed the implementation process (the Netherlands) and the first Member state to throw in the towel and officially announce that the implementation process will only be concluded after the implementation deadline (Denmark). But before we look at these developments in more detail, let’s first have a look at the discussions surrounding the implementation of Article 17.

There has been no further progress on the Commission’s Article 17 implementation guidance. Originally expected to be presented in the second half of 2020, there is no sign of them yet. So far the Commission has not even managed to publish the responses to the consultation that was concluded in September 2020.

More Member States commit to protecting users’ rights.

With no clear timeline for the Commission guidelines, more and more Member States have given up waiting and are presenting their implementation ideas for Article 17. In early December the Austrian Ministry of Justice circulated a first proposal for implementing Article 17 among stakeholders for feedback (see our joint response with epicenter.works and SaveTheInternet Austria here). This proposal takes up a number of key elements of the previous German proposals (direct remuneration right for creators, the ability to pre-flag uploads as legitimate, a threshold that protects minor uses from automated blocking, and the ability for users’ organizations to act against structural overblocking) and fits them into a more traditional approach: Where the German legislator proposes to implement the Article 17 provisions in a separate law, the Austrian proposal would integrate the provisions into the body of the existing copyright act. 

In Germany, the discussion about the implementation proposal is still ongoing: Seemingly in response to pressure from the rightsholders and platforms (channeled via other ministries controlled by the CDU) the Ministry of Justice has retracted one of the most controversial elements of its implementation proposal: A new leaked version of the proposal (dated 22 November) is missing the controversial “de minimis” exception that would have legalized uses of works shorter than 20 seconds of audio or video or 1000 characters of text. However, the same thresholds are now part of a new mechanism that protects “presumably legitimate uses” as long as they do not exceed 50% of an original work and combine the matched work with other material. While much weaker than a standalone exception, this mechanism would still ensure that many forms of user-uploaded creative expression could not be automatically blocked. 

The next Member State to present a user rights-preserving approach to Article 17 was Finland: On the 21st of December, the Finnish Ministry of Culture held an online public hearing (bravo!) on the implementation of Article 17 of the Copyright Directive. As part of this meeting, the Ministry outlined its proposal for a user rights-preserving “blocking procedure” that substantially deviates from the approach that is underpinning the Austrian and German proposals and the Commission’s proposed Article 17 implementation guidance: Instead of limiting the use of automated filters to blocking a subset of uploads where there is a high likelihood that the use is infringing, the Finnish proposal does away with requirements on platforms to automatically block user uploads entirely. 

The Finnish proposal relies on mandatory use of content recognition technology by platforms and the rapid notification of rightsholders of uploads that match works for which rightsholders have provided platforms with reference information. However, platforms are only required to disable access to uploaded content after rightsholders have provided them with a properly justified request to block a particular upload. Users have the ability to challenge blocks through an independent alternative dispute resolution mechanism, completely freeing platforms from making decisions on the legality of individual user uploads (see our more detailed initial analysis here).

Taken together there are now three separate implementation proposals that would include strong user rights protections in the national laws and that give concrete form to the requirement contained in Article 17(7) (and reaffirmed by the EU legislator in front of the CJEU) that legitimate uses must be protected from automated blocking and removal. While none of these proposals have been adopted by the national legislators yet, they show a clear path towards user rights-respecting (and therefore directive-compliant) national implementations.

Other developments

In the Netherlands, the final vote on the implementation law took place in the Senate (1st chamber) on the 18th of December which approved the new law by a wide margin. The Netherlands became the first EU Member State to fully implement the directive on the 28th when the implementation law and an accompanying “small royal decision” were published in the official journal.

The royal decision stipulates that the majority of the law will enter into force on the 7th of June. The main exception is Article 16 of the Directive (which restores the ability of publishers to receive a part of private copying levies) which has already entered into force on the 1st of January. 

While the Dutch implementation of Article 17 is mostly a literal transposition of the provisions contained in the directive, it is important to note that it includes a provision that allows the Ministry of Justice to provide further rules on the application of the Article 17 implementation. This provision leaves some room for the Dutch executive to bring its implementation into compliance with the expected Commission guidance (and future CJEU jurisprudence on the application of Article 17). 

Finally, Denmark is the first Member State to officially announce that most parts of the Directive will not be implemented before the deadline. In November the Ministry of Culture announced that it would only implement Articles 15 and 17 during this parliamentary year and implementation of the rest of the directive would only commence after the summer.

On the 18th of December, the Danish Ministry of Culture followed up with a public consultation on the implementation of Articles 15 and 17. A first analysis of the Article 17 implementation proposal reveals that the Danish Ministry has opted for a literal implementation ignoring the need to protect legitimate uses from automated blocking. The consultation deadline is 22 January and we are working with partner organizations in Denmark to submit a response.

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