Implementation update: French Parliament gives carte blanche, while the Netherlands correct course.

Le Francois L'Hollandois
Dutch parliament strengthens user rights
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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

Article 17 guidance: Don’t shoot the messenger / ne pas tirer sur le messager!

David geeft opdracht om de man te doden die Saul de genadestoot gaf Sauls dootslager gestraft
Strengthening user rights is part of Article 17
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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

Our response to the EC consultations on digital technologies and the cultural heritage sector

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This week, we have submitted our response to the European Commission’s consultation on the opportunities offered by digital technologies for the cultural heritage sector​. We agree, it is high time to revisit the approach defined by the Recommendation on the digitisation and online accessibility of cultural material and digital preservation from 2011. Ten years is a lot of time and a new approach is needed due to three factors: advances in digitisation of heritage, legal reforms that took place in the meantime – especially the new Copyright Directive, and the rapidly changing digital environment.

We believe that cultural policies, to be fit for their purpose both today and in the years ahead, need to be based on an updated vision of the role of digital heritage for Europe’s societies. We need strategies that support the creation of social, cultural, and economic value based on Europe’s heritage. This is especially true in 2020, when during the Covid-19 pandemic the value of digitised cultural heritage for our societies became clearly visible. Yet it was also a time when many of the cultural heritage institutions faced a crisis.

We need an approach to cultural heritage that recognizes its value to the society and ensures the resilience of cultural heritage institutions and the cultural sector.

Below you will find highlights of the issues that we raise in our response. You can also download the full response as a PDF file.

Continue reading

Civil Society letter on the Article 17 implementation guidance

De briefschrijfster
Guidance must aim to protect users' rights!
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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.

A step in the right direction: Our response to the targeted consultation on the Article 17 guidance

A woman shouting into a man's ear-trumpet
Thanks for listening!
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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

Commission consultation on Article 17 guidance: User rights must be protected at upload

Heilige Rochus smeekt bescherming van oudere edelman af
Legitimate uses must be considered at all times
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At the end of July the Commission published a long awaited “targeted consultation addressed to the participants to the stakeholder dialogue on Article 17 of the CDSM Directive“. With this consultation the Commission makes good on its (pre-covid) promise to “share initial views on the content of the Article 17 guidance” with the participants of the stakeholder dialogue. Nestled in-between 18 questions, the consultation document provides a detailed outline of what the Commission’s guidance could look like once it is finalised.

While we have been rather sceptical after the end of the six meetings of the stakeholder dialogue meetings, we are pleased to see that the initial views shared by the Commission express a genuine attempt to find a balance between the protection of user rights and the interests of creators and other rightholders, which reflects the complex balance of the provisions introduced by Article 17 after a long legislative fight.

In the remainder of this post we will take a first, high level, look at the Commission’s proposal for the Article 17 guidance, what it would mean for national implementations and how it would affect user rights.

Two welcome clarifications

With the consultation document the Commission takes a clear position on two issues that were central to the discussions in the stakeholder dialogue and that have important implications for national implementation of Article 17.

The first one concerns the nature of the right at the core of Article 17. Is Article 17 a mere clarification of the existing right of communication to the public, as rightholders have argued, or is it a special or sui generis right, as academics and civil society groups have argued? In the consultation document the Commission makes it clear that it considers Article 17 to be a special right (“lex specialis”) to the right of communication to the public, as defined in Article 3 of the 2001 InfoSoc Directive, and the limited liability regime for hosting providers of the E-commerce Directive. 

What sounds like a fairly technical discussion has wide ranging consequences for Member States implementing the Directive. As explained by João Quintais and Martin Husovec, now that it is clear that Article 17 is not a mere clarification of existing law, Member States have considerably more freedom in deciding how online platforms can obtain authorisation for making available the works uploaded by their users. This should mean that they are not constrained by the InfoSoc Directive. Therefore, mechanisms like the remunerated “de-minimis” exception proposed by the German Ministry of Justice that would legalise the use of short snippets of existing works are permitted and covered by the concept of “authorisation” introduced by Article 17. Continue reading

Copyright Directive – Implementation – July news

Dutch Ship
Many countries are now speeding up with the process of implementation of the Directive.
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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

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)

FRANCE

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

Video recording of the COMMUNIA Salon on the German proposal to implement Article 17

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:

Video recordings from our Copyright Directive Webinars

communia webinars (1)Licentie

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 German Model to Protect User Rights when implementing Article 17

Rechtvaardigheid (Justitia)
Finding balance with exceptions, pre-flagging and abuse sanctioning
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Last week, Germany’s Ministry of Justice unveiled its proposal to implement Article 17 of the new Copyright Directive. In this post, we will look into the draft implementation in more detail, to understand how this proposal aims to protect user rights by:

  • 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 behaviour by platforms, rightholders and users.

Complying with the “best efforts” obligation to obtain authorization

Under Article 17, platforms are deemed to carry out a copyright-restricted act when they give public access to copyrighted content uploaded by their users and, as a consequence, they must make “best efforts” to obtain an authorization to perform such acts. That authorization can hypothetically be granted through various means:

  • directly by the copyright owners via individual licensing agreements (as mentioned in Article 17(1) second para.,) or
  • by collective management organizations via collective license agreements, or
  • by operation of law, if the national lawmakers decide e.g. to turn this exclusive right into an exception or limitation to copyright subject to compensation.

The implementation proposals that we have seen so far in other countries have limited themselves to the traditional individual licensing mechanism. This is of course problematic because individual licenses alone cannot cover the countless protected materials in existence and user rights will be at greater risk if the platforms have to block content at upload than if they obtain authorization to have that content uploaded to their platforms.

Germany had stated, when the Directive was approved, that it would explore further legal mechanisms (e.g. exceptions and limitations and collective licenses) to grant those permissions to platforms. The draft text now published delivers on those promises and introduces some welcoming innovation.

The proposed text starts by saying that the platforms need to make “alle Anstrengungen” (“every effort”) to acquire those rights by contract. The use of the wording “every effort” shall not, however, be interpreted as meaning anything else other than “best efforts”, according to the explanatory memorandum. In fact such obligation is considered to be fulfilled when the platform accepts a licensing offer made by a rightholder or when licenses are available through a domestic collective management organization (§4/1). Such contractual offers or collective licenses must apply to works typically uploaded to the platform, comprise a representative repertoire, cover the territory of Germany, and enable the use on appropriate conditions (§4/2).

A new de minimis exception that applies to the acts of platforms and noncommercial users

When, despite making the above-mentioned effort, the platform was not able to obtain an authorization, the draft text provides a fallback mechanism: it partially turns the new exclusive right into a remunerated exception, which covers minor uses of copyrighted content (§6 and §7/2). Continue reading