COMMUNIA Salon 2020/3: The German proposal to implement Article 17 – A broken promise or a way forward?

COMMUNIA Salon 2020/3: The German proposal to implement Article 17Licentie

On Thursday, the 2nd of July, we will be organising the next edition of our virtual COMMUNIA Salon to discuss the new German implementation proposal for Article 17 of the DSM directive. For this event we will be joined by Julia Reda (Project lead control © at the GFF and former MEP), John Hendrik Weitzmann (General Counsel at Wikimedia Deutschland) and Dr. Martin Husovec (Assistant Professor, Department of Law, London School of Economics). 

As we have written in our initial reaction, the German proposal is the first serious attempt by a member state to implement Article 17 of the directive in a way that preserves the precarious balance between the rights of users and creators. Where previous implementation proposals have limited themselves to (selectively) transposing the provisions of the directive, the German Ministry of Justice has presented a proposal that adds a number of interesting (and potentially controversial) additional provisions, which seem to be designed to strengthen the position of both users and individual creators. These include the addition of a remunerated de-minimis exception intended to safeguard common types of so-called “user generated content”, the ability for uploaders to “pre-flag” legitimate uses of protected works in their uploads, and the addition of a direct remuneration rights intended to ensure that individual creators benefit from the new legal regime.

With this proposal the German government presents an alternative vision for how Article 17 could work in practice, which could serve as a model for other member states when implementing the directive. During our Salon we will hear first reactions from civil society stakeholders and analyse the legal underpinnings of the more innovative elements of the proposal, such as the proposed de-minimis exception. The presentations will be followed by an informal question and answer session.

The Salon is open for everyone to attend and will be held on Zoom. Join us on Thursday, the 2 of July, at 1530 CET, by registering here. Registered participants will receive login information ahead of the event.

Article 17 implementation: German proposal strengthens the right of user and creators

Rechtvaardigheid (Justitia)
A more balanced way to implement Article 17
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It speaks to the complexity of the discussion about Article 17 of the Copyright in the Digital Single Market directive that the new German implementation proposal is at the same time a broken promise and something that sets a positive example for the other Member States. The measures to implement Article 17 unveiled today as part of a wider proposal for implementing a second set of provisions of the directive (which we will discuss in a follow up post), do not manage to keep the earlier promise to avoid the use of upload filters and instead embrace their use within certain limits. This will almost certainly be a major point of political controversy within Germany.

But seen from the other 26 EU member states this broken promise will likely be overshadowed by the fact that the German government is setting an example for fully using the room for legislative discretion left by the directive to include a number of significant protections for users together with measures aimed at ensuring that individual creators directly benefit from the new provisions. In doing so the German implementation proposal is the first proposal that does not limit itself to (selectively) transposing the provisions of the directive into national law. As a result of this, the German implementation proposal is much closer to the legislative compromise struck by Article 17 than any of the other implementations that we have seen so far.

The implementation proposal (which represents the position of the Ministry of Justice and still needs to be endorsed by the government as a whole) proposes to implement Article 17 in a new law that is separate from the main Copyright Act. This new “Gesetz über die urheberrechtliche Verantwortlichkeit von Diensteanbietern für das Teilen von Online-Inhalten” (UrhDaG) follows the overall logic of Article 17 in making OCSSPs first liable for infringements by their users and then requiring them to either license or take measures to prevent the availability of infringing works to limit their liability.

To ensure the balance of the resulting provision the proposal adds a number of provisions aimed at safeguarding the ability of users to freely share and receive information and for creators to be remunerated for such uses of their works. These measures include: Continue reading

Video recording of the COMMUNIA salon on 18 June 2020

Last week on Thursday we held the second virtual edition of our COMMUNIA Salon. This edition focussed on the role of flexible exceptions in the context of Article 17 of the Copyright in the Digital Single Market Directive and the role that a broad interpretation of the concept of pastiche can play in preserving users’ freedom of creative expression. If you have missed the event you can watch a recording of the presentations and the subsequent discussion here:

The salon was kicked off by Teresa Nobre who discussed the importance of flexible copyright exceptions and highlighted the recent developments in the jurisprudence of the CJEU that has gradually started to recognise exceptions as expressions of certain fundamental rights. In the following presentation Paul Keller discussed the tension between mandatory exceptions and de-facto mandatory filters in Article 17 and highlighted that the provisions dealing with exceptions remain at the center of the discussion in the Commission’s stakeholder dialogue on the implementation of Article 17.

In the second part of the event Prof. Martin Senftleben talked about Article 17, Pastiche and Money for Creators. As part of his presentation Prof. Senftleben reminded the audience about the original objective of Article 17 to make large online platforms pay for so-called “user generated content” in order to improve the income position of creators and other rightholders. According to Prof. Senftleben, the licensing based approach introduced by Article 17 will fail to achieve this objective since it inherently favours large rightholders who have the means to negotiate with large platforms. Article 17 as such does not ensure that individual creators benefit from any additional revenues secured by creative industry intermediaries. Continue reading

COMMUNIA Salon 2020/2: protecting freedom of expression via the pastiche exception

COMMUNIA Salon 2020/2: Protecting freedom of expression via the pastiche exceptionLicentie

After the success of our first virtual COMMUNIA salon last month we will be holding a follow-up event on Thursday, the 18th of June, from 1530 to 1700h CET. This time we will be focussing on the role of the now mandatory exceptions and limitations for quotation, criticism, review, caricature, parody and pastiche in the context of the implementation of Article 17 of the DSM directive. We will pay special attention to the role of the pastiche exception and examine how a broad conception of pastiche can provide a legal basis for a wide range of transformative uses of protected works on online platforms.

In the context of the discussion on the implementation of Article 17, scholars have argued that the concept of pastiche (“a musical, literary, or artistic composition made up of selections from different works“) provides a legal basis for safeguarding transformative uses that are commonly referred to as User Generated Content. During the upcoming COMMUNIA salon we will explore this possibility and discuss how Member States can best make use of the room provided by the pastiche exception when implementing Article 17 of the DSM directive.

After introductory presentations by Teresa Nobre (on the importance of flexible exceptions to copyright) and Paul Keller (on the tension between filtering obligations and the obligation to safeguard users rights in the context of Article 17), we will be joined by Professor Martin Senftleben from the Institute for Information Law, who will focus on the role of the pastiche exception. Prof. Senftleben has recently published a paper on the role of the pastiche exception in the context of institutionalised algorithmic enforcement and is one of the co-authors of the European Copyright Society’s comment on Article 17 of the DSM directive, which recommends “cultivating the concept of pastiche” to ensure that Article 17 does not limit freedom of expression.

The presentations will be followed by an informal question and answer session.

This event is open for everyone to attend and will be held on Zoom. In order to ensure smooth participation we request participants to register beforehand. Registered participants will receive login information ahead of the event.

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. Continue reading

Video recording from last weeks COMMUNIA salon

Last week Monday, on the first anniversary of the entry into force of the Copyright in the DSM Directive, we held the first virtual edition of our COMMUNIA Salon. During the event we presented an overview of the implementation status in the EU member states, zoomed in (sic!) on various legislative proposals to implement Articles 15 and 17 of the Directive and discussed ways to challenge parts of the Directive via the legal system. If you have missed the event you can watch a recording of the presentations and the subsequent discussion here: 

The event was kicked off by Teresa Nobre who launched the COMMUNIA implementation tracker and presented an overview of the implementation in the EU member states. While France has already implemented the press publishers right, the majority of EU member states are still in various stages of consultation. One year after the entry into force of the Directive, only Belgium, Croatia, France, Germany, Hungary and the Netherlands have put forward legislative proposals. Continue reading

COMMUNIA Salon: Copyright in the DSM Directive – one year after

Communia Salon 2020: DSM directive one year afterLicentie

The Copyright in the Digital Single Market (CDSM) Directive went into effect on the 18th of May 2019. During the COMMUNIA salon we will be given an update on the implementation status in the EU member states and the discussions at the European Commission’s stakeholder dialogue on the implementation of Article 17 of the directive. Join us on Monday the 18th of May 2020 from 1530h – 1700h (Brussels time) for a series of short presentations and an informal question and answer session.

While the focus of most policy makers is on the current health emergency, the implementation of the CDSM directive is ongoing. Member states have until the 7th of June 2021 to implement the divisive and complex rules contained in the directive.

A year after the entry into force of the directive a messy picture has emerged. In France, which has already implemented the press publishers right, that implementation has led to an intervention of the competition authority. The Polish government has challenged parts of Article 17 in the CJEU arguing that it violates fundamental rights. And while some Member States have published legislative proposals for the implementation of the directive, most Member States are still holding formal and informal consultations.

Meanwhile, the Commission’s own stakeholder dialogue, which brought more than 80 different stakeholders together to discuss the implementation of Article 17, has come to a COVID19 induced halt after a series of contentious meetings, and all eyes are now on the European Commission which has yet to present a first outline of the implementation guidelines.

During the upcoming COMMUNIA salon, Teresa Nobre (COMMUNIA) will provide an overview of the implementation status in the different member states. Ula Furgal (CREATe) will provide a more in depth perspective on Article 15 (the new press publishers rights) including recent developments in France and Australia. Paul Keller (COMMUNIA) will provide an overview of the discussions surrounding the implementation of Article 17 including the ongoing stakeholder dialogue. Finally, Julia Reda (GFF /control ©) will discuss the role of litigation in ensuring a fundamental rights-preserving implementation of the CDSM directive.

The presentations will be followed by an informal question and answer session.

This event is open for everyone to attend and will be held on Zoom. In order to ensure smooth participation we request participants to register beforehand. Registered participants will receive login information ahead of the event.

Article 17 Stakeholder dialogue: COMMUNIA input paper

A woman shouting into a man's ear-trumpet
Our principles for the the Commission guidelines
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Given the ongoing health emergency, the European Commission’s stakeholder dialogue on the implementation of Article 17 of the Copyright Directive is currently suspended. The 7th meeting of the stakeholder dialogue, which was originally scheduled for Monday of this week and where the Commission was expected to “share initial views on the content of the guidelines”, has been cancelled and it is currently unclear how and when the stakeholder dialogue will be resumed. In the meanwhile, the European Commission is continuing its work on the guidelines.

While we are waiting for news on the future of the stakeholder dialogue we have produced an input paper for the Commission (pdf) that summarises our observations from the stakeholder dialogue so far and formulates a number of principles that the Commission should take into account when drafting its guidelines. In line with our initial principles, the input paper focuses on licensing, transparency and procedural safeguards for users’ rights. The paper builds on the model that we had presented during the last meeting of the stakeholder dialogue

Specifically, we are asking the Commission to include the following in the Article 17 implementation guidelines: 

  • Recommend to national lawmakers to fully explore all legal mechanisms (including collective licensing with extended effect, mandatory collective management schemes and other non-voluntary licensing schemes) for granting OCSSPs authorisation to have in their platforms copyright-protected works and other subject matter uploaded by their users.
  • Require that all ownership claims made in the context of the measures required by Article 17 must be made fully transparent to allow public scrutiny and prevent unjustified removals or blocking by rightholders claiming ownership of works that they do not own.
  • Require that OCSSPs publish statistical information on the number of removal/blocking actions as well as the number of complaints and the resolution of complaints arising as the result of such actions.
  • Requires that in cases other than obvious infringement and in order to prevent automated measures from affecting lawful uses, users must have the ability to override all automated actions before the blocking/removal takes effect.
  • Require that in case of obvious (“prima facie”) infringement uploaded content can be automatically blocked/removed under the condition that uploaders have the ability to easily and effectively challenge such blocks/removals.
  • Require that users must be able to rely on all existing exceptions as grounds for challenging removal/blocking actions and must be able to dispute the ownership claims on which an action is based.

Continue reading

Open letter: More transparency for the Stakeholder dialogue

De briefschrijfster
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

Allegory of the Alliance with France
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