Stakeholder dialogue to improve cross border access to audiovisual content

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End unjustified geoblocking now
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Earlier this week, COMMUNIA was invited to participate in a high-level roundtable on access to and availability of audiovisual content across the EU hosted by Commissioner Thierry Breton. This round table which took place today marks the beginning of a stakeholder dialogue with the audiovisual industry to agree on concrete steps to improve the access to and availability of audiovisual content across borders in the EU. This stakeholder dialogue will take place in the coming months with meetings scheduled for 8 and 22 November and 10 December.

We have accepted this invitation in order to ensure that the perspective of users/consumers seeking access to audiovisual works will be represented in the discussions that should lead to the end of unjustified geo-blocking of audiovisual content in the EU. We have outlined our initial position in the opening statement delivered by Paul Keller during today’s high level round table:

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A Proposal to leverage Article 17 to build a public repository of Public Domain and openly licensed works.

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Today Open Future and Gesellschaft für Freiheitsrechte are publishing a white-paper, authored by Julia Reda (GFF) and Paul Keller (Open Future/COMMUNIA) that proposes to build a public repository of Public Domain and openly licensed works. While the idea of creating repositories of Public Domain and openly licensed works is not new as such, the white paper proposes to use Article 17 of the EU copyright directive as leverage to create such a repository. Aside from its very problematic blocking and liability provisions, which we have criticized since the EU copyright directive’s inception, Article 17 also requires certain providers of online content sharing platforms to ensure that the copyright filters that they deploy “shall not result in the prevention of the availability of works or other subject matter uploaded by users, which do not infringe copyright and related rights”. This provision was added later in the negotiations to address widespread criticism from civil society and academia.

As a result these platforms need to prevent uploads containing Public Domain or openly licensed works from being blocked or removed as a result of copyright claims from (alleged) rightholders or face sanctions. For example, the German implementation of Article 17 explicitly requires that “after an abusive blocking request in respect of works in the public domain or works whose use by anyone is authorised free of charge, service providers must ensure, to the best of their ability […], that these works are not blocked again”.

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COMMUNIA at the CC Global Summit 2021

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This week will see the 2021 edition of the Creative Commons Global Summit 2021. This year’s CC summit celebrates the 20th anniversary of Creative Commons in an all virtual format that takes place over the whole week. As in previous years the CC summit . This is an invaluable chance for the Creative Commons community to meet , collaborate and exchange knowledge and to strengthen our activism for better copyright rules and open access to knowledge and culture.

As in previous years COMMUNIA will contribute to a number of sessions at the summit which has turned into one of the prime venues for driving the discussion about global copyright reform forwards. Below we have compiled a list of sessions that are particularly relevant to our area(s) of interest and that will see participation from COMMUNIA members: 

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Video Recording of COMMUNIA Salon on the AG Opinion in case C-401/19

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).

COMMUNIA SALON 4/2021: Article 17: Unpacking the AG Opinion in case C-401/19

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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 this edition Paul Keller (COMMUNIA/Open Future) will be joined by Julia Reda (Project Lead © Control at GFF and former MEP) and Martin Husovec (Assistant Professor of Law at LSE) to discuss the AG Opinion’s implications on the implementation of the CDSM directive across Europe. The Salon will be moderated by Teresa Nobre (COMMUNIA).

As always, the COMMUNIA Salon is open for everyone to attend and will be held on Zoom. You are welcome to join us by registering here. You will receive your login details ahead of the Salon.

Video Recording of COMMUNIA’s 10th Anniversary

On Tuesday, June 15th, we celebrated our 10th anniversary with an online birthday party. For those of you who were unable to attend we have now published a recording of the event:

To kick off the festivities, we reviewed the 14 policy recommendations that COMMUNIA issued 10 years ago to see what happened to them over the past decade (from 00:03 to 00:21 in the recording). As it turns out a fair number of them have been at least partially – or  even fully – implemented, in many cases thanks to advocacy work that we and our partners have done 

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.

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Video Recording of COMMUNIA Salon on the Article 17 guidance and the launch of the Eurovision implementation tracker.

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. 

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Article 17 implementation guidance: Strong user rights safeguards with a giant loophole

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Final guidance undermines users' rights safeguards
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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.

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A closer look at the final Commission guidance on the application of Article 17

Today, on the verge of the implementation deadline for the CDSM directive, the European Commission has published its long awaited guidance on the application of Article 17 of the Directive, in the form of a Communication from the Commission to the European Parliament and the Council. The structure of the final guidance largely follows the outline of the Commission’s targeted consultation on the guidance from July 2020, but there are significant changes to the substance of the final document. The final version of the guidance makes it clear that the European Commission has completely undermined the position it held before the CJEU, that Article 17 is compatible with fundamental rights as long as only manifestly infringing content can be blocked.

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.

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It’s our 10th birthday: Join us on the 15th of June to celebrate and discuss the future of copyright.

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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.

After this we will be joined by Professor Juan Carlos de Martin (COMMUNIA founder and Politecnico di Torino), Professor Bernt Hugenholtz (University of Amsterdam) and Professor Pamela Samuelson (University of California, Berkeley) who will present reflections on our work and the evolution of the EU copyright framework in the past decade.

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.

We are looking forward to celebrating with you 🥳