Last month, we held the first edition of our Copyright Directive Webinars, aimed at explaining the different provisions of the new Copyright Directive and making suggestions on what to advocate for during the implementation process of those provisions at a national level, to expand and strengthen user rights. We’ve now released the presentations and video recordings of the webinars.
As you know, many countries are now speeding up with the process of implementation of the Directive – you can find below a short summary of what’s going on.
EU implementation – country updates from last weeks
Germany’s Ministry of Justice unveiled its proposal to implement Article 17 of the new Copyright Directive. The discussion draft sets an example for the other Member States on how to make the user rights safeguards in Article 17 operative, and we strongly suggest that you look into the detailed analysis that we published in our blog. This is what is being proposed, in sum:
- Making it easier for platforms to comply with the “best efforts” obligation to obtain authorization to publish their users’ uploads;
- Introducing a new exception covering minor uses of copyrighted content, which works as a fallback mechanism in the absence of authorization;
- Allowing users to override blocking/removal actions, by pre-flagging lawful uses;
- Allowing lawful content to stay up until human review and pausing the liability of platforms until a decision has been made;
- Sanctioning abusive behavior by platforms, rightholders, and users.
We have organized a webinar on this topic, which you can watch here.
Former MEP Julia Reda has published a two-part comment on this on the Kluwer Copyright Blog, including a discussion of the strengths and fragilities of this proposal, which is the first one to actually attempt to avoid over-blocking of content. (Part 1, Part 2)
At the beginning of July we heard that the French Government would try to pass the implementation of Article 17 via an administrative decree as part of a law that implements various EU directives (Ddadue law), to speed up its adoption (and sidestepping substantial discussion in Parliament). On July 8th the first reading of the Ddadue law took place in the French Senate, and the proposed amendment to grant the Government the power to implement the provisions of the Copyright Directive by way of ordonnance (Amendment 23) was unanimously supported (in the adopted text article 24bs is the one authorizing the French Government to implement the Copyright Directive). The executive orders to transpose Articles 2 to 6 and 17 to 23 of the Copyright Directive will have to be issued within six months of the adoption of the law, and the executive orders for the remaining provision have to be issued within 12 months. The National Assembly still needs to approve the Ddadue law. The law was forwarded to the Assemblee Nationale for adoption. Continue reading
Last month, we held the first edition of our Copyright Directive Webinars, aimed at explaining the different provisions of the new Copyright Directive and making suggestions on what to advocate for during the implementation process of those provisions at a national level, to expand and strengthen user rights. We are now releasing the presentations and video recordings of the webinars.
The subject of the first webinar was the Press Publishers’ Right. Dimitar Dimitrov (Wikimedia) explained Article 15 in detail and presented our proposal for implementing it at the national level (check his presentation here).
The second webinar was dedicated to the Text and Data Mining and Education Exceptions. Benjamin White (LIBER) analyzed Articles 3 and 4 (check his presentation here), and Teresa Nobre (COMMUNIA) covered Article 5 (check her presentation here). Continue reading
The process of implementation of the new Copyright Directive is speeding up in various countries (see our Implementation Tracker). Therefore, COMMUNIA has decided to organize a series of webinars aimed at explaining the different provisions of the new Copyright Directive and making suggestions on what to advocate for during the implementation process of those provisions at the national level, to expand and strengthen user rights.
The Copyright Directive Webinars are aimed at local advocates and national policymakers and will be conducted by COMMUNIA members and experts that were involved in preparing our Implementation Guidelines.
We will hold four webinars of one hour each, as follows:
- 16/06 (Tuesday) – Press Publishers’ Right (Art. 15): Dimitar Dimitrov
- 17/06 (Wednesday) – Text and Data Mining and Education Exceptions (Arts. 3-5): Benjamin White and Teresa Nobre
- 23/06 (Tuesday) – Use of Content by Online Platforms (Art. 17): Teresa Nobre and Paul Keller
- 24/06 (Wednesday) – Cultural Heritage Provisions (Arts. 6, 8-11, 14): Stephen Wyber, Ariadna Matas and Paul Keller
All webinars will take place from 10.00am to 11.00am CET. You can register for the webinars of your choice here. Remember to register for the seminar up to 24 hours before it starts. We have a limit of 30 participants at each seminar, so please don’t register if you don’t plan to show up. The access info will be shared with those who signed up. Continue reading
The implementation of the copyright directive is ongoing in several countries, which might be a challenge due to the pandemic (e.g. to hold face-to-face events and meetings) or an opportunity (e.g. some officers working on copyright issues might have more time to focus on it). In the meantime, several EU member states decided to ask the Commission to adjust its calendar of infringement decisions and to suspend the deadlines relating to the pending infringement procedures. We have yet to see how the pandemic will affect the calendar of ongoing implementations.
EU implementation – country updates from last month
The Swedish Ministry of Justice recently closed the public consultation on the implementation of Articles 3 to 12 of the Copyright Directive. The Ministry shared a document containing only the opening remarks on how those Articles should be assessed and implemented (according to the officers at the ministry) and the deadline for submitting opinions on those positions ended on 20 March. The document shared by the Ministry of Justice as a part of the public consultation is not the official position of the Swedish Government. The memo serves as a starting point for discussions about the directive and includes a number of questions regarding the articles for the stakeholders involved.
The French audiovisual reform, which transposes the Audiovisual Media Services (AVMS) Directive, as well as Article 17 of the Copyright Directive, was subject to discussion and voting in the National Assembly’s Culture and Education (CULT) Committee, on the first week of March. The CULT Committee worked its way through 1.327 amendments to the proposal. On 5 March, the CULT Committee finalized this effort and approved the amended text. The approved text, in what concerns the implementation of Article 17, is not substantially different from the original proposal that we analyzed here. The text is now scheduled to be discussed in the Assembly’s Plenary session at the beginning of April. The relevant documents will be made available here. Continue reading
Few months have already passed since The Directive on Copyright in the Digital Single Market was adopted in April this year. We did our best to use this time wisely to evaluate risks and opportunities for users’ rights and public domain created in the new legal framework and one thing is certain for us – we need a strong access to knowledge movement engagement also during transpositions in all member states – there is still a lot to be done.
Alongside with our members (Wikimedia, Creative Commons and Centrum Cyfrowe Foundation) we want to make sure that local communities in as many countries as possible participate in the national legislative process and provide input on how to shape national rules to ensure user rights and access to knowledge are strengthened, not weakened.
In order to build capacity we have organized a Transportation Bootcamp – an opportunity for activists to meet, share experiences, learn about the challenges related to transposition, think about arguments and tactics. For this 35 people from various communities (Wikimedia, Creative Commons, digital rights activists and GLAM experts) gathered in Warsaw, from October 11 to 13, to share and learn.
At the Bootcamp we explained the (soon to be published) suite of documents with implementation guidelines prepared by a group of legal experts. We also invited experts and policy makers that have been active on this reform over the past years to provide insight to activists. We started planning national activities with communities. We got to know each other. And we realized (once again) how many question marks these directive leave for national legislators to decide – and how much is still to be done.
The Member States have until 7 June 2021 to transpose the Copyright in the Digital Single Market Directive into their national laws. This once-in-a-decade change in copyright rules is a reason we have decided to work with activists in Member States on their national transposition (publishing position papers, organising events, contacting lawmakers, coalition building, etc.). If you feel like participating in this process in order to support access to knowledge, feel free to contact us: email@example.com – we’re happy to have you on board with our project!
Earlier this year, Poland initiated a legal challenge against Article 17 of the Directive on copyright in the Digital Single Market before the Court of Justice of the European Union (CJEU) [C-401/19]. The CJEU has finally published the application for this legal challenge. Our member, Centrum Cyfrowe Foundation, has tried to get access to the complaint before using Freedom of Information requests, without success…
In our opinion, referring the Directive to the Court of Justice is a good step that can help clear controversies concerning Article 17. An independent court will assess issues that in the policy debate are usually dismissed by representatives of rightsholders as fear-mongering or disinformation.
The Republic of Poland seeks the annulment of Article 17(4)(b) and Article 17(4)(c), in fine of the Directive on copyright in the Digital Single Market. In the alternative, should the Court find that the contested provisions cannot be deleted from Article 17 of Directive without substantively changing the rules contained in the remaining provisions of that article, the Republic of Poland claims that the Court should annul Article 17 of Directive in its entirety.Continue reading
Copyright not only regulates the interests of creators and intermediaries, but also applies to users’ rights. This was one of our main arguments in the discussion on Article 17 of the new copyright directive, which was often disregarded by our opponents. In our opinion Article 17 is not well-balanced and creates threats to freedom of expression. Such an assessment is shared by others: the UN Special Rapporteur on Freedom of Expression, non-governmental organizations dealing with digital rights, and a significant part of the academy. Now the very same objections will be evaluated by Court of Justice of the European Union.
Last week, the Government of the Republic of Poland filed a challenge to the new Directive on Copyright in the Digital Single Market, specifically Articles 17(4b) and 17(4c). The Minister of Culture and National Heritage explained:
“in our opinion this mechanism introduces solutions with preventive censorship features. Such censorship is forbidden by both the Polish Constitution and EU law – the Charter of Fundamental Rights guarantees freedom of expression.”
Interestingly, by filing the charge, the Polish government fulfilled a political promise made during the recent electoral campaign. At that time, Polish Prime Minister Mateusz Morawiecki tweeted that the new law is “a disproportionate measure that fuels censorship and threatens freedom of expression.”Continue reading
The final vote on copyright reform in the plenary session of the Parliament is scheduled for March 26. After more than 30 months of work on this topic our overall assessment remains unchanged: The proposed Directive is bad, and will not make the internet work for people. The final “compromise” text has done nothing to accommodate the concerns we and others have raised over the past 2+ years.
As long as Article 13 remains part of the package, the only sensible way forward it to make sure that Directive will be rejected by the European Parliament.
There is still time to act! Read along to find out what you can do in the last days before the vote.
Upload filters don’t (and can’t) respect users’ rights
Through the lens of copyright, Article 13 turns upside down how the web works. Instead of permitting users to upload content to platforms and resolving platforms from liability as long as they act quickly to remove infringing content once notified, Article 13 would require nearly all for-profit platforms that allow UGC to conclude licenses all user uploads. If they don’t obtain the licenses, then the only option will be to install upload filters and censor content in order to ensure that any unsanctioned content remains off their service. If the platforms don’t comply, they could be held liable for significant copyright infringement damages. Continue reading
We have argued again and again that copyright reform is also fundamental rights matter – therefore we co-signed an open letter to the European decision-makers asking them to add human rights safeguards to Article 13 of the proposed Copyright Directive on the Digital Single Market throughout the negotiation process.
The fundamental rights safeguards crucial for ensuring compliance of the new Directive with the Charter of Fundamental Rights are in accordance with our four principles for minimising harm to users, creators and the internet. The letter signed by 27 fundamental and digital rights organizations raises concerns about the current state of play for Article 13 and calls for:
Platforms control all information available on the internet and they are empowered to rank and take down content at their discretion. These platforms serve “the internet” as we know it now. Internet platforms are able to make decisions about freedom of expression with no transparency or accountability and the proposed Directive does not change that. In cases where content is blocked or taken down, it is critical that they properly justify their decisions; decisions that should be subject to proper redress mechanisms to ensure free speech and freedom of information. Besides providing an alternative dispute resolution, the EU could provide, for free, legal mechanisms across the EU to settle disputes between users, copyright holders and internet platforms.Continue reading
On 19 November 2018, 54 NGOs (including COMMUNIA) representing human rights and media freedom sent a letter to the Council of the European Union. The letter raises ongoing concerns regarding the proposal of the Directive on copyright in the Digital Single Market. The signatories underline that the current proposal risks creating severe impediments to the functioning of the internet and the freedom of expression of all, and urge the Council to take citizens’ rights into consideration during the trilogue negotiations:
For the ongoing trilogue negotiations, we urge you to reject obligatory or “voluntary” coerced filters and to keep the current liability regime intact. Enforcement of copyright must not become a pre-emptive, arbitrary and privately-enforced censorship of legal content.
Moreover, we ask you to hear the voice of academic research that a press publishers’ right will not have the intended effect and will instead lead to a less informed European society.
The letter is not only another call for a productive re-shaping of the future European copyright framework. It is also a strong voice against the predominant market-only narrative around the ongoing reform. NGOs continue to raise concerns related not just to the economic impact of the new Directive, but its deep influence on society, openness, fundamental rights and access to knowledge.
You can read the letter here (pdf).
Not surprisingly, the letter focuses on the most disputed provisions–Article 13 upload filters and Article 11 ancillary copyright for press publishers. Since the beginning of the legislative process COMMUNIA has worked on nearly all parts of the Directive comments (including the new educational exception, TDM provisions and others), and we regret that there seems to be little attention paid to these other important aspects as policymakers focus only on the most controversial parts of the plan.