This analysis was previously published in two instalments on the Kluver Copyright Blog (part 1, part 2).
As 2020 unfolds, the European Commission’s stakeholder dialogue pursuant to Article 17 of the Directive on Copyright in the Digital Single Market (CDSM directive) enters its third (and likely final) phase. After four meetings that focussed on gathering “an overview of the current market situation as regards licensing practices, tools used for online content management […] and related issues and concerns”, the next two (or more) meetings will finally deal with issues raised by the provisions in Article 17 of the CDSM directive. According to the Commission’s discussion paper for the meetings of 16 January and 10 February 2020, the objective of the third phase “is to gather evidence, views and suggestions that the services of the Commission can take into account in preparing the guidance pursuant to Article 17(10)”.
In other words, after four meetings that have set the scene, the stakeholder dialogue will now address some of the thorny issues raised by Article 17. These include the key concepts like the best effort obligations to obtain authorisation and to prevent the availability of content (Article 17(4)), as well as the safeguards for legitimate uses of content (Article 17(7)) and the complaint and redress mechanisms available to users (Article 17(9)). In preparation for these forthcoming discussions, it is worth recapitulating what we have learned since the stakeholder dialogue kicked off in October of last year.
Three takeaways from the stakeholder dialogue so far
After more than 25 hours of discussion (recordings of the four meetings can be found here: 1, 2, 3 and 4), there are three main insights that will likely have a substantial impact on the overall outcome of the stakeholder dialogue. These are the different motivations of different types of rightholders; the technical limitations of Automated Content Recognition (ACR) technologies; and the general lack of transparency with regards to current rights management practices. The first two of these are discussed in this post and the third will be covered in part 2 which will be published shortly. Continue reading
The fourth meeting of the Article 17 stakeholder dialogue took place in the last week before the holiday break. Just like the third meeting, this meeting was dedicated to (more or less) technical presentations on content management technologies and existing licensing practices. In total there were 12 presentations from platforms (Facebook, Seznam, Wattpad), providers of content management tools (Audible Magic, Ardito, Fifthfreedom, Smart protection), rightholders (GESAC, Universal Music Publishing, Bundesliga) as well as by BEUC and the Lumen database.
Filters are context-blind
The day’s presentations largely repeated the lines of arguments different stakeholders had presented during the previous meetings (a recording of the full meeting can be found here). Most notably all providers of content recognition technology confirmed that their technology does not go beyond simple matching of files and cannot understand the context in which a use takes place. Audible Magic summarised this in their opening statement:
Copyright exceptions require a high degree of intellectual judgement and an understanding and appreciation of context. We do not represent that any technology can solve this problem in an automated fashion. Ultimately these types of determinations must be handled by human judgement […]
As we have argued after the third meeting of the stakeholder dialogue, this is an unsurprising but significant insight as it means that current technology cannot be used to automatically block or remove content uploaded by users.
Platforms don’t trust rightholders
The presentation given by Facebook about Facebook Rights Manager, its in-house content recognition tool, highlighted another problem that such tools are facing: One of the “main challenges” that Facebook is facing with its Facebook Rights Manager tool is that rightholders abuse the tool by claiming rights in works that they do not own. As a result Facebook only makes the most sensitive functionalities (such as automated blocking of uploaded content) available to a small group of carefully vetted trusted rightholders. Continue reading
Last week’s third meeting of the Article 17 Stakeholder dialogue was the first one of what the Commission had referred to as the 2nd phase of the dialogue. After two meetings of introductory statements by various stakeholders (see our reports here and here), the third meeting consisted of a number of more in depth technical presentations on content recognition technologies and on existing licensing models (Video recording available here).
The morning session saw presentations from three technology providers. YouTube presented its own Content ID system, PEX presented its platform independent attribution engine and finally Videntifier showed off its video and image matching technology.
The biggest part of the discussion in the morning was centered around understanding the way YouTube’s content ID system works and how it relates to copyright (hint: it’s complicated). The overall impression that arose from the discussion is that very few participants actually understand how content ID works (and those who do, like the big record labels, don’t seem to be interested in talking about it). The fact that the Commission was among those asking questions to get a better understanding of the inner working of content ID is rather striking in the context that evidence based lawmaking was supposed to be one of the priorities of the Junker commission. So far the stakeholder dialogue seems more like an exercise in legislation based fact finding.
While many aspects of Content ID remained opaque, one thing became clear though-out the three presentations: none of the presented technologies can do more than matching content in user uploads. None of the technologies presented can understand the context in which a use takes place and as a result they are incapable of detecting if a use is covered by an exception or not. In the words of the technology providers (lightly edited for clarity): Continue reading
Yesterday 51 leading European copyright scholars published a statement on “Safeguarding User Freedoms in Implementing Article 17 of the Copyright in the Digital Single Market Directive“. The statement is intended as input into the ongoing stakeholder dialogue. It focuses on the interplay between user rights and the filtering obligations established by Article 17. From the Kluwer Copyright blog:
Against this backdrop, a group of European academics (including the author of this post) has drafted a document with recommendations on user freedoms and safeguards included in Article 17 of the DSM Directive – namely in its paragraphs (7) and (9), to be read in the context of the aforementioned stakeholder dialogues. The recommendations are divided into three sections: on promoting licensing and limiting preventive measures; on exceptions and limitations in Article 17 (user freedoms); and on minimizing the risks of broad filtering and over-blocking (user safeguards). Despite the controversial nature of the topic, the recommendation has already been endorsed by around 50 European academics in this area, which is a testament to its balanced approach. Our intention is that these recommendations and interpretative guidelines are taken into consideration by the Commission, stakeholders, and Member States in their discussions on national implementations of Article 17 DSM Directive.
Based on a close reading of paragraphs 17(7) and 17(9), the academics show that Article 17 requires online platforms (OCSSPs in the language of the directive) to prioritise protecting users rights over blocking content. This statement provides strong support for our positions in the stakeholder dialogue. Continue reading
On Tuesday this week the participants of the stakeholder dialogue on Article 17 of the EU copyright directive convened in Brussels for the second meeting. After a first meeting that focussed on practices in the music, games and software sectors (see our report here), this week’s meeting focussed on the current situation in the audiovisual (AV) and publishing sectors.
Hollywood: Article 17 is about filtering after all
The meeting kicked off with a long series of statements from the many different rightholders in the AV sector (see the video recording here). The assembled sector representatives made it clear that from their perspective Article 17 is welcome (as it clarifies that online platforms need to obtain licenses for the works uploaded by their users) but that they are not interested in widely licensing AV works to UGC platforms and would instead focus on the blocking and removing of unlicensed content via the upload filtering mechanisms introduced by Article 17.
This approach is the logical consequence of the predominant business model in the AV sector which relies on exclusive licensing to selected outlets (Cinema, TV, VOD platforms). It directly contradicts the music industries’ narrative from the first meeting that Article 17 is about licensing and not about blocking access – as in the case of music general availability is crucial. Representatives of the AV industry made it very clear that they would fight any attempts at non-voluntary licensing and that they would also fight against effective protection for user rights under exceptions and licensing (see for example the statement issued by the Motion Picture Association starting at 10:41:44 of the video recording). These initial statements make it clear that the AV industry does indeed look at Article 17 as an instrument to limit freedom of expression and reuse and will likely use the stakeholder dialogue to bend the article further in this direction. Continue reading
Article 17(10) of the Copyright in the Digital Single Market directive requires the Commission to “organise stakeholder dialogues to discuss best practices for cooperation between online content-sharing service providers and rightholders”. Last week Tuesday we took part in the first meeting of the stakeholder dialogue. The dialogue (which will consist of a series of meetings) is supposed to provide the Commission with input for producing guidelines can “balance fundamental rights and the use of exceptions and limitations” with the upload filtering obligations introduced by Article 17 of the directive.
The meeting, which was attended by 80 stakeholders (plus representatives from the 28 Member States), was supposed to focus on “current practices with regard to the cooperation between rightholders and online content sharing service providers” in the music, software and gaming sectors. The day was kicked off by a short welcome address by Commissioner Maria Gabriel in which she praised the outcome of the copyright reform as an example of Europe taking the lead in developing rules for the digital environment (translation from the original French):
The new Copyright Directive in the Digital Single Market demonstrates the ability of the European Union to collectively reflect on today’s challenges and to bring about just, innovative and concerted responses. It is another example of a Europe that opens the way and sets an example to the rest of the world.
[…] The new Directive, and in particular Article 17, opens a new era in the regulation of the relationship between copyright and digital services. And this, without touching the fundamentals. It does not challenge the traditional rules of copyright while introducing a new framework that provides essential guarantees to ensure a proper balance between fundamental rights, in the first place freedom of expression on the Internet.
[…] With the adoption of the Copyright Directive, the European Union is leading a global movement to develop a fairer economic model for the production, access and distribution of content in the digital environment. Europe is now a more attractive place to invest in creation and digital.
It should be evident that we do not share this positive assessment of the directive. If the directive was indeed such a balanced piece of legislation as the commissioner claims, then there would not be a need to organize stakeholder dialogue to patch up its worst inconsistencies. Continue reading
Yesterday the European Commission invited COMMUNIA to participate in the “Stakeholder dialogue under Article 17 of the Directive on Copyright in the Digital Single Market” that will kick off in Brussels next week. This invitation comes after we had expressed our interest to participate in response to a call issued by the Commission in September. It is our understanding that COMMUNIA will be one of a small number of civil society participants in the dialogue (the Commission has yet to publish a list of participating organisations).
Stakeholder dialogue to the rescue!
Article 17(10) of the Copyright in the Digital Single Market directive requires the Commission to “organise stakeholder dialogues to discuss best practices for cooperation between online content-sharing service providers and rightholders”. Based on the outcome of these dialogues with “content-sharing service providers, rightholders, users’ organisations and other relevant stakeholders” the Commission is expected to “issue guidance on the application of Article 17” that is supposed to “balance fundamental rights and the use of exceptions and limitations” with the upload filtering obligations introduced by Article 17.
Given that two and a half years of legislative wrangling have failed to produce a balanced (or at least coherent) outcome, it seems rather unlikely that this stakeholder dialogue will be able to achieve such a balance. Still the stakeholder dialogue provides an opportunity to minimise the harm to the freedom of creative expression and the ability for smaller platforms to strive under Article 17. Such an optimistic view of the stakeholder dialogue has been put forward by the German government, which has stated that it
… therefore assumes that this dialogue is based on a spirit of guaranteeing appropriate remuneration for creatives, preventing ‘upload filters’ wherever possible, ensuring freedom of expression and safeguarding user rights. The German Federal Government assumes that uniform implementation throughout the Union will be agreed on in this dialogue, because fragmentary implementation with 27 national variants would not be compatible with the principles of a European Digital Single Market.
Five measures to minimize the harm caused by upload filters
While we have strongly criticised Article 1, mainly because of the filtering obligations it introduces, there are also positive elements in the article. These include mandatory exceptions for quotation and parody, and a number of procedural safeguards intended to ensure that users can exercise the rights they have under these exceptions and limitations.
As part of our contribution to the stakeholder dialogue we will strive to ensure an outcome that minimises the impact and scope of the filtering provisions and that maximises the scope of exceptions and limitations that guarantees meaningful safeguards for users to exercise the rights they have under these exceptions. From our perspective, the following five measures will guide our contribution to the stakeholder dialogue: Continue reading
Article 14 – Works of visual art in the public domain – is one of the very few unambiguously good provisions of the new EU copyright directive. The article is intended to ensure that (digital) reproductions of public domain works cannot be protected by exclusive rights, and as a result, taken out of the public domain. This legislative intervention comes in response to the relatively widespread practice of museums in claiming exclusive rights of digital reproductions of public domain works that they have in their collections and which they make available to the public. In practice this has already led to Spanish Museums claiming copyright over paintings by Dutch masters who have been dead for 350 years, and German museums suing Wikipedia for hosting reproductions of public domain works as part of Wikimedia Commons.
What is in the public domain in analogue form is [not always] in the public domain in digital form
While at first glance it seems counterintuitive that a museum should be able to control the rights for artworks of long dead artists, such claims do have a basis in existing law. In general, for a work to be protected under copyright it needs to show “the author’s own intellectual creation.” However, there is another category of copyright-like rights (also called “related rights”) that exist in a number of EU Member States. These related rights schemes grant exclusive rights to the creators of photographic works that do not meet the originality criterion necessary to receive copyright protection (See this 2015 study by Thomas Margoni for more details). Related rights arise even when a reproduction is nothing more than an exact photographic copy of a work. Where copyright protects original artworks, these related rights protect simple copies.
As museums have started to make works in their collections available online, the practice of relying on related rights to restrict the re-use of non-original reproductions of public domain works has become controversial. Both the Public Domain Manifesto and the Europeana Public Domain Charter demanded that what is in the public domain in analogue form must stay in the public domain in digital form (as does our own policy recommendation #5). While the overall majority of museums have always acted in the spirit of expanding the public domain, and have made reproductions of public domain works available without any restrictions on re-use, a small number of museums from Member States that allow the protection of non-original reproductions of public domain works continue to claim rights over such reproductions. Continue reading
Last week the Canadian Parliament’s Standing Committee on Industry, Science and Technology (INDU) released a report with 36 recommendations to reform Canadian copyright law. Under Canadian law the committee is required to review the Canadian copyright statutes every five years and the report presented now is the outcome of such a review. While this means that it is relatively unlikely that many of the recommendations contained in the report will result in immediate legislative actions (the government is not required to act on them) the report is nevertheless interesting as it contains a number of recommendations that go in the opposite direction of the changes that the DSM directive will bring to copyright in the European Union (for a full overview of the recommendations see Michael Geist’s summary).
After a year-long study that includes a public consultation and a number of committee hearings on a wide variety of issues, the INDU committee has come to the conclusion that there is a lack of evidence for both a DSM-style press publishers right and for changes to the liability position of platform intermediaries as foreseen in Article 17 of the DSM directive. While Canadian rightsholders argued for the necessity of such interventions, they failed to convince the committee of the merits for these provisions.
On the press publishers right the report essentially takes a wait and see approach (i.e. to see just how badly the EU will fail on these points) that conveys a healthy amount of scepticism with regard to the effectiveness of the EU approach.
The production and dissemination of news content is essential to democratic societies. While the Committee supports the notion that OSPs who profit from the dissemination of copyrighted content they do not own should fairly remunerate its rights-holders, legislators around the world are only starting to develop and implement legislative frameworks to compel OSPs to do so. Canada should learn from the failures and successes of these initiatives to determine whether they serve the interests of Canadians. (page 53)
The report goes on to discuss potential changes to the “Safe Harbour Provisions” that apply to online service providers. Unsurprisingly this discussion is based on the “value gap” rhetoric that provided the germ of the upload filtering provisions contained in Article 17 of the DSM directive. The section on “Safe Harbour Provisions” (pages 74-83) is well worth reading as it makes it clear that there is no such thing as a single “value gap” that can be filled via a legislative intervention, and that changing the liability rules for online service providers will have damaging effects well beyond the music sector: Continue reading
Today our friends at Centrum Cyfrowe, the Commons Network and publicspace.online are launching a new vision for digital policy making in Europe: This Vision for a Shared Digital Europe lays the foundation for a new frame for digital policy making in the EU. It proposes an overarching policy framework that brings together varied issues and policy arenas, including copyright reform, platform regulation, privacy, data-protection and data governance, antitrust, media regulation or innovation policy. In announcing this Vision they write:
Digitalisation has led much of our interaction, communication and economic activity to take place through data or over online intermediaries. What kind of space should this digital sphere be? We believe that seeing this space as a market place only does not do it justice. This space is in effect our society – a society that is experiencing a digital transformation. Therefore we cannot accept the digital sphere as a place where only market dynamics rule. Society is more than an interaction between market players, and people are more than entrepreneurs or consumers.
As supporters of the European project, we believe that Europe needs to establish its own rules for the digital space, which embody our values: strong public institutions, democratic governance, sovereignty of communities and people, diversity of European cultures, equality and justice. A space that is common to all of us, but at the same time diverse and decentralised.
Over the past five months we have worked with a broad group stakeholders on developing a frame that can replace the existing Digital Single Market frame that dominates discussions about digital policy making in the EU. We propose a new, society-centric vision that is intended to guide policymakers and civil society organisations involved with digital policymaking in the direction of a more equitable and democratic digital environment, where basic liberties and rights are protected, where strong public institutions function in the public interest, and where people have a say in how their digital environment functions – a Shared Digital Europe. Continue reading