On Wednesday the 21st of June we held a special lunch salon on Advocate General Saugmandsgaard Øe’s Opinion in Case C-401/19, the Polish request to annul Article 17 of the CDSM directive.
Moderated by Teresa Nobre, the salon started with Paul Keller (COMMUNIA/Open Future) assessing the opinion in the context of the Commission’s stakeholder dialogue and the ongoing national implementations (from min. 03:11 to min. 12:35 in the recording). While the opinion doesn’t provide for Article 17’s annulment, it provides important clarifications on users rights safeguards against automated, preventive content blocking systems adopted by sharing services providers.
Then Martin Husovec (London School of Economics) took a closer look at the overall strategy of the AG’s opinion while dwelling on its weaknesses and strengths (from min. 14:53 to min. 25.50 in the recordings). He focused on what he described as “AG Øe’s re-interpretation of Article 17” and further analysed the safeguard mechanisms provided in the opinion.
The final presentation came from Julia Reda (GFF) (from min. 27:50 to min. 40:00 in the recordings) who expressed her disappointment to the fact that AG Øe did not recommend the to reject Article 17. She went on to identify a number of inconsistencies in the parts of the opinion that attempt to reconcile the use of upload filters with the ban on general monitoring obligations. .
The discussion was followed by a Q&A session with the participants (from min. 42:20 onwards).
On Wednesday, the 21st of July at 1300 CEST, we will be organising a special lunch edition of our COMMUNIA salon. This time we will analyze the Opinion that CJEU Advocate General Saugmandsgaard Øe issued on Case C-401/19, the Polish request to annul Article 17 of the CDSM directive.
His Opinion finds that Article 17 is compatible with the freedom of expression and information guaranteed in Article 11 of the Charter of Fundamental Rights of the European Union and consequently advises the Court to reject the annulment request. While the annulment of problematic provisions would be preferable, the opinion provides important clarification on user rights safeguards.
For the second part of the event, we brought together three friends from academia who have influenced our work in important ways to reflect on COMMUNIA’s work.
First, Prof. Juan Carlos de Martin (Politecnico di Torino and founding father of the COMMUNIA project) reflected on what makes COMMUNIA a unique community which started 15 years ago as an EU-funded network and that continues the importance of public funding for communities advocating for the public interest to this day.
On Monday the 7th of June – the day of the implementation deadline for the DSM Directive – we held a special COMMUNIA Salon to mark the entry into force of the Directive, to assess the implementation process being made in the 27 Member States and to discuss the Article 17 implementation guidance published by the Commission just before the entry into force of the Directive.
The Salon kicked off with Teresa Nobre and Dimitar Dimitrov presenting our ongoing work supporting user rights’ advocates across the EU Member States to ensure a user rights’ friendly implementation of the Directive into national legislations (from 1:11 to 18:13 in the video recording). This was followed by the launch of the Eurovision DSM Contest, a new website which tracks the implementation progress for each Member State.
The second part of the event (from 20:00 in the recording onwards) consisted of a discussion on the Commission’s Article 17 guidance. Paul Keller opened the discussion by noting that, while the guidance establishes important user rights’ safeguards that put into question the implementation approach chosen by Member States – most notably by France and Denmark –, it also contains a massive loophole by allowing rightholders to “earmark” their content as economically valuable.
Julia Reda (GFF) followed up by comparing the guidance to the recently adopted German implementation law. She argued that the German law seemed to be largely in line with the principles established by the guidance and highlighted that the German rules, for certain types of “high-value” content, are highly targeted and limited. In this light, this is much less problematic than the “earmarking” mechanism introduced by the Directive.
Today, on the last day before the implementation deadline for the Copyright in the Digital Single Market Directive, the European Commission has finally published its long overdue implementation guidance for Article 17 of the Directive. The guidance, which marks the end of a stakeholder process that started in October 2019, is supposed to provide Member States implementing the Directive with guidance on how to reconcile the contradicting objectives contained in Article 17 of the Directive. It comes at a time where only a handful of Member States have implemented the Directive into their national law.
In the final version of the guidance published today, the Commission will require Member States to include ex-ante safeguards for user rights in their national implementation legislation. In doing so, it provides support to the implementation approach taken by Germany (and discussed in Austria and Finland), while making it clear that Member States who have limited themselves to merely re-stating the provisions of the Directive (such as France, The Netherlands and Hungary) will need to include such additional safeguards (more on this below).
Unfortunately, and confirming the suspicions that we had expressed in our recent open letter, the final version of the guidance walks back the strong commitment to protect users’ fundamental rights that the Commission had shown earlier in the process. As a result of relentless pressure from the entertainment industry, the final version of the guidance contains an “earmarking” mechanism that is designed to allow rightholders to override safeguards against automated blocking of user uploads that are not manifestly infringing, by claiming that a use of their works “could cause significant economic harm”. This provision is ripe for abuse by rightholders and undermines the relatively strong principles for safeguarding users’ fundamental rights, which the guidelines require Member States to include in their national implementations (see our detailed description of how the “earmarking” provision undermines the principles of the guidance here).
The “earmarking” mechanism was added to the guidance in the last three months, in closed-door deliberations of the Commission and in reaction to massive pressure from rightholders. This back-room dealing of the Commission in the last months stands in stark contrast to the transparent and balanced way in which the Commission had handled the initial stages of the stakeholder process. After a series of public stakeholder dialogue meetings, the Commission had released a remarkably balanced consultation draft of the guidance in July of last year. The Commission then used the principles outlined in the draft to defend the legality of Article 17 before the CJEU, only to agree on a final version that substantially undermines these principles, behind closed doors and without further consultation of the stakeholders involved in the process.
This conduct abuses the stakeholder process that the Commission was legally required to hold as part of the hard fought-political compromise embodied in Article 17. Where the Commission initially lived up to its role as a neutral steward of the legislative compromise, it has abandoned this role unilaterally, changing the final result based on massive political pressure from rightholders.
In the final guidance, the Commission maintains that it is “not enough for the transposition and application of Article 17(7) to restore legitimate content ex post under Article 17(9), once it has been removed or disabled” and argues that only manifestly infringing content should be blocked automatically, but these “principles” are included in name only. By introducing the ability for rightholders to “earmark” any content that has the potential to ”cause significant economic harm”, the guidance allows rightholders to easily override these principles, whenever they see fit, and to force platforms to automatically block user uploads even if they are not manifestly infringing.
In the remainder of this post we will examine these last minute changes to the guidance in more detail. Before we do that, we will briefly recall the key problem that the guidance was supposed to resolve and the principles that underpinned previous versions of the guidance.
This June, a few days after the implementation deadline for the DSM Directive, the COMMUNIA Association on the Public Domain will turn 10 years old. Founded in June 2011 in a Brussels bar (when gathering in the back rooms of bars was still a thing), to fight for policies that expand the public domain and increase access to and re-use of culture and knowledge, we have come a long way:
Over the past decade we have engaged in efforts to shape the direction of copyright policy in the EU. After 10 years of existence and after the dust has settled on the Directive on Copyright in the Digital Single Market, it is time to look back, reflect and celebrate what we have achieved.
We will do this on the 15th of June from 1530 (CEST) onwards with an anniversary event. For this occasion we will bring together key players and observers of the EU copyright policy arena from the past decade to reflect on the development of the EU copyright framework, to assess our efforts to expand the public domain and to increase access to and re-use of culture and knowledge, and to identify opportunities for policy changes in the decade to come.
Our anniversary event will be hosted by COMMUNIA’s Teresa Nobre and Paul Keller. We will kick off by reviewing how our 14 policy recommendations have fared since we have adopted them in 2011.
Afterwards Marco Giorello (Head of the Copyright Unit of the European Commission) will share some reflections on the evolving EU Copyright Policy Landscape. His presentation will be followed by a panel discussion on the future of EU copyright policy between Catherine Stihler (CEO Creative Commons), Julia Reda (Gesellschaft für Freiheitsrechte and former MEP) and Melanie Dulong (Centre Internet et Société CIS-CNRS).
The COMMUNIA Anniversary is open for everyone to attend. Join us on Tuesday, the 15th of June, at 1530 CEST, by registering here. Registered participants will receive login information ahead of the event.
This year, Communia joined a project to study and promote changes in international copyright law to ensure equity in the production of and access to research. We are now looking for partners to work with us in promoting effective change in the political discourse in the European Union towards the adoption of an international legal framework that protects legitimate access to knowledge.
In particular we are looking for partners that have the capacity to develop a national-level strategy and plan of activities to advocate for the right to research in international copyright law, in coordination with a global civil society coalition including libraries, archives, museums, researchers, educators, and digital rights organizations.
On Monday the 7th of June 2021 the Copyright in the Digital Single Market Directive will enter into force. To mark this event we are organising a special COMMUNIA Salon taking stock of the implementation process across the EU and taking a closer look at the latest developments around Article 17 of the Directive. Join us at 1530h (CET) for a very special programme.
We will kick off the event with the Eurovision DSM contest evaluating the implementation progress (or the lack thereof) in the 27 member states. We will hand out awards for the best and worst implementations and will let you know which Member States have managed to implement in time and which ones are still struggling.
As always, the COMMUNIA Salon is open for everyone to attend and will be held on Zoom. Join us on Monday, the 7th of June, at 1530 CEST, by registering here. Registered participants will receive login information ahead of the event.
Today the German Bundestag adopted the law implementing the provisions of the DSM directive into German law. The law still needs to be confirmed by the Bundesrat before it can be signed into law by the President, but it is not expected that the law will undergo any more changes during that process. As we have explained here before, the German implementation law is one of the most ambitious implementations of the DSM directive especially with regards to the way it implements the provisions of Article 17 of the directive. And while the discussions in the Bundestag have led to a number of changes to the text of the law, the key mechanism underpinning the government proposal for implementing Article 17 has emerged essentially unchanged. In addition, the discussion in the Bundestag has resulted in a number of substantial improvements in other parts of the law.
In order to achieve this, the German implementation relies on the concept of “uses presumably authorised by law”, which must not be blocked automatically. For an upload to qualify as “presumably authorised by law”, it needs to fulfil the following cumulative criteria:
The use must consist of less than 50% of the original protected work,
The use must combine the parts of the work with other content, and
The use must be minor (a non-commercial use of less than 15 seconds of audio or video, 160 characters of text or 125 kB of graphics) or, if it generates significant revenues or exceeds these thresholds, the user must flag it as being covered by an exception.
If these conditions are met, the use is considered to be “presumably authorised by law” and cannot be blocked automatically. Rightholders can still challenge the legality of such uses but platforms are required to keep the uploads online until those complaints have been reviewed by the platforms (there is an exception that allows “trusted rightholders” to request immediate removal if they consider the use evidently infringing and commercially harmful).
This mechanism had been the target of massive criticism from rightholders throughout the parliamentary debate and it is welcome to see that the Bundestag has had the courage to hold the line here. The version of the law adopted today makes one small concession to rightholders. It now specifies that the “presumably authorised by law” mechanism does not apply to “the use of cinematographic works or videos until the end of their first public broadcast, in particular during the simultaneous broadcast of sports events, provided that the rightholder requests this from the service provider”. This change addresses concerns expressed by sports associations who argued that allowing people to share 15 second clips of sports events during an event would ruin their business model. While this seems highly dubious, the exception is so narrow that its impact on legal uses will be fairly minimal.