Back in January of this year, we noted how both the Netherlands and France (at that point the only Member States that had presented proposals to implement Article 17) had proposed selective implementations of Article 17 that ignored crucial user rights safeguards. A lot has happened since January, but yesterday both Member States took further steps in their national implementations. And this time the two Member States are moving in opposite directions:
While the Dutch government has reacted to criticism from civil society and members of Parliament by fixing some of the most obvious shortcomings of its implementation law, the 2nd chamber of the French Parliament has adopted a law that gives the French government the power to implement Article 17 (and the rest of the provisions of the DSM directive) however it sees fit.
Netherlands: a course correction
Back in July of 2019, the Netherlands were the first country to propose an implementation law of the DSM directive. Somewhat surprisingly (the Netherlands had been one of the most vocal opponents of Article 17 in the Council) the proposed implementation law did not make any efforts to protect user rights and omitted most of the user rights safeguards contained in the final version of Article 17. After the proposal was sent to Parliament in June this year, together with Bits of Freedom and others we pointed out these shortcomings to the members of the legal affairs committee. Yesterday, in response to questions from members of the legal affairs committee, the government conceded that its original implementation proposal was incomplete and added the missing user rights safeguards to the proposal for an implementation law. Continue reading
Yesterday Politico published the response submitted by the French Government to the Commission’s stakeholder consultation on the article 17 implementation guidance. For anyone who has followed the French position in the debate about Article 17, the response (see here for an english language “courtesy translation”) will not be very surprising. The French reaction rejects the majority of what the Commission is proposing and questions and accuses the Commission of reversing the progress that (according to the French government) has been made with the adoption of Article 17 in early 2019. This position is largely aligned with the grievances expressed by a coalition of rightholders organisations in their recent letter to Commissioner Breton and it is consistent with the way France is implementing Article 17 in its national law (next week the Assemblée nationale will vote on a law that will authorise the French Government to implement the provisions of the DSM directive by decree).
Unfortunately, it is also based on a flawed understanding of the issue at hand. Since the French authorities note in their reaction that they “will carefully consider stakeholders’ responses and are open to continued discussions so that future guidance may play their concrete technical role with regards to the correct application of article 17”, it is necessary to clear up some of the misunderstandings here.
Misrepresenting Article 17
The constant references, on the side of rightholders and from the French government, to the “original objective”, “goal” or “spirit” of the directive try to mask the fact that the actual text of the directive is not as clear-cut as rightsholders and the French government would like it to be. The fact is that, in between its introduction (as Article 13) in 2016 and its adoption (as Article 17) in 2019, the provisions dealing with the “Use of protected content by online content-sharing service providers” have undergone substantial changes.
What was proposed as a relatively simple intervention to strengthen the position of rightholders vis-à-vis content sharing platforms by changing the liability position of said platforms, has – following intense criticism from academia, civil society and internet users – been transformed into a convoluted legal regime that serves a number of conflicting objectives. Article 17 now includes strong language that establishes new user rights and provides meaningful safeguards for preserving these rights. These additions to the article were essential in securing its adoption by the EU legislator. As a result, in the final version of the article, the original objective of strengthening the position of rightholders is just one of a number of objectives.
By now it seems clear that in their fierce determination to get the new copyright directive adopted, many of the supporters of the original proposal have failed to notice that the final legislative compromise had morphed into an article that is fundamentally different from what was originally proposed. In supporting the final compromise of Article 17, rightholders and the French government have in fact supported provisions that go against their long established positions. Continue reading
Earlier today 27 (update 17-09-2020: 32) civil society organisations sent a joint letter to Commissioner Breton summarising our responses to the Article 17 guidance consultation that closed last week. In addition to organisations participating in the stakeholder dialogue, the letter has also received support from a broad coalition of digital and human rights organisations from across Europe.
The letter expresses concerns that the proposed Article 17 guidance endorses the use of automated content blocking by online services even though it is clear that this will lead to the violation of fundamental rights. It also warns that implementations of Article 17 based on the proposed guidance will violate established principles of EU law.
In this context the letter highlights the need for meaningful safeguards for legitimate uses of content uploaded to online platforms, and stresses the need for a robust redress mechanism for users. Summarising the consultation responses submitted by the various signatories, the letter highlights the importance of ensuring that uploads that are not manifestly infringing must remain online until a human review has taken place. The letter further stresses the importance of involving users’ organisations when setting technical parameters that are used to determine if an upload is manifestly infringing or not.
The letter further highlights the need for full transparency of (automated) content removals and the ability for users (and user organisations on their behalf) to take actions against the abuse of the measures introduced by Article 17 of the DSM directive.
Finally, the letter also expresses support for the Commission’s clarification that Article 17 constitutes a “lex specialis” to the provisions of the InfoSoc Directive which provides Member States with maximum flexibility to include user rights preserving authorisation mechanisms in their national legislation.
You can read the full letter including the list of signatories here.
Yesterday we submitted our response to the European Commission’s targeted consultation on the Article 17 guidance. As we have explained previously, with this consultation the Commission was seeking feedback on its initial ideas for the Article 17 implementation guidance, which the Commission intends to publish before the end of the Year. The document is intended to provide Member States with guidance on how to balance the conflicting requirements of Article 17 (preventing copyright infringements while ensuring that legal uses are not affected) when implementing it in their national legislations.
As we said in our initial analysis, we were very happy to note a clear commitment of the Commission to maintain the delicate legislative balance of Article 17 that reflected many of the constructive contributions that have been made by stakeholders across the spectrum during the dialogues. In general, we consider the Commission’s proposal a step in the right direction and this is reflected in our response to the consultation. Unsurprisingly, organisations representing rightholders have a completely different reaction to the proposal and have already started a campaign to convince the Commission into abandoning its approach. Continue reading
Last week on Thursday we held the third virtual edition of our COMMUNIA Salon. This edition focussed on the recent German proposal to implement Article 17 of the DSM Directive and included contributions by John Henrik Weitzmann (Wikimedia Deutschland), Julia Reda (Gesellschaft für Freiheitsrechte), Martin Husovec (London School of Economics) and Paul Keller (COMMUNIA). If you have missed the event you can watch a recording of the presentations and the subsequent discussion here:
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.
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
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
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.
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