Filtered Futures: a Conference to examine upload filters after the CJEU ruling on Art. 17

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The recent CJEU decision on Article 17 of the copyright directive has defined a framework for the use of automated content moderation. The Court considers filtering obligations compatible with the right to freedom of expression and information as long as they are limited to use cases that allow for a robust automated distinction between legal and illegal content. In the context of Article 17, upload filters may therefore only be used by online platforms to block manifest infringements of copyright law. The Court leaves it up to the Member States to ensure that legal uses remain unaffected by their national transpositions of Article 17.

The judgment raises a host of important questions for the enforcement of copyright law as well as for the compatibility of upload filters with fundamental rights even beyond copyright law. To discuss these consequences, together with Gesellschaft für Freiheitsrechte we are jointly organizing the “Filtered Futures” conference on Monday, September 19th 2022, in Berlin. 

We are inviting papers from all disciplines contributing to the conference theme. To present your work at Filtered Futures, please complete the submission form by July 10th, 2022. The form asks for a short abstract of your talk. All applicants will be notified by July 22th, 2022.

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Twenty copyright policy recommendations for the next decade

On Tuesday, the 31st of May 2022, COMMUNIA presented twenty new policy recommendations that will guide our association’s work for the next decade. We brought together fellow activists, academics, policy makers and other stakeholders from across the copyright policy spectrum in Brussels to celebrate the occasion. Our new policy recommendations build on the principles of the Public Domain Manifesto and replace the previous policy recommendations that have guided our work in the past decade (and which we have evaluated here). 

The event was kicked-off by COMMUNIA president Paul Keller, who in his opening remarks (reproduced in full at the end of this post) argued for the need to put discussion about copyright policy back on the agenda of the EU legislator: three years after the adoption of the DSM directive, it is clear that the EU copyright framework remains a fragmented mess that does not adequately address the needs of users and creators in an increasingly complex digital environment. Paul Keller stressed that COMMUNIA hopes that the new set of policy recommendations will contribute to an open and respectful debate with policy makers and stakeholders from across the copyright policy spectrum about how we can work towards a more just and open EU copyright system that embraces the opportunities offered by digital transformation for users and creators alike. 

In a first reaction, MEP Tiemo Wölken (S&D) welcomed COMMUNIA’s ambition and highlighted the importance of improving the EU copyright framework in the context of ambitions to strengthen the digital public sphere in Europe. See here for a recording of his intervention.

His intervention was followed by the presentation of the new policy recommendations by Paul Keller and Teresa Nobre. In her remarks, Teresa highlighted the evolution of the recommendations to more explicitly address the concerns of both users and creators (instead of users’ rights, the new recommendations focus on usage rights) and the increasing importance of (procedural) safeguards against copyright abuse. Paul and Teresa then walked the audience through the 20 individual recommendations:

The presentation of the recommendations was followed by a reaction from Prof. Séverine Dusollier, who echoed the overall need to reform the EU copyright framework and welcomed the level of ambition contained in the new recommendations. See here for a recording of her reaction.

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Join us for the launch of our new policy recommendations on 31st May in Brussels

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Join us on Tuesday the 31st of May at 1700h at Townhall Europe in Brussels for the launch of the new COMMUNIA policy recommendations followed by a networking reception. We will present the 20 policy recommendations which we have developed with input from leading academics and access to knowledge advocates over the past months and which will guide our work on a more open and just copyright framework for the decade to come. 

Our new policy recommendations address key policy opportunities for EU lawmakers to expand the Public Domain, increase access to and re-use of culture and knowledge and leverage the power of the digital transformation for society.  

The policy recommendations will supersede the 14 existing policy recommendations that have guided our work in the past decade and have made a real contribution to the evolution of the EU copyright framework. On the 31st we will discuss the new policy recommendations with lawmakers, activists and academics. For this, we will be joined by MEP Tiemo Wölken and Professor Severine Dusollier (SciencePo). 

After the launch of the recommendations (and of our new website), there will be a networking reception with the ability to exchange views with the COMMUNIA core team. 

The event is open to everyone subject to registration here. We kindly ask you to confirm your attendance by Friday, May 27th. In case the max. number of registrations is reached, participants will be confirmed on a first-registered, first-served basis.

We are looking forward to toasting to the next decade with you!

Save the date: COMMUNIA’s new policy recommendations to be launched on May 31st

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We are pleased to announce that we will launch the new COMMUNIA policy recommendations on Tuesday, May 31st, at 1700 CET, at Townhall Europe in Brussels.

Less than a year ago, we celebrated COMMUNIA’s 10th anniversary, assessing how its foundational 14 policy recommendations contributed to the expansion of the public domain during the 2011-2021 decade. At that time, we also announced that we would update our policy recommendations for the decade to come.

We have consulted with many copyright experts and key stakeholders over the past months to identify new priorities for the decade to come. That process has now come to an end and we are looking forward to presenting the results publicly, in an in-person event that will bring together EU policymakers and academics. The discussion will be followed by an apéro reception at the venue.

The event is open to everyone subject to registration here. We kindly ask you to confirm your attendance by Friday, May 27th. In case the max. number of registrations is reached, participants will be confirmed on a first-registered, first-served basis.

We are looking forward to toasting to the next decade with you!

COMMUNIA

Video recording of the COMMUNIA Salon on the CJEU decision on Article 17

On the 28th of April, we hosted the second COMMUNIA Salon of 2022 to discuss the implications of the CJEU judgment in Case C-401/19, which rejected the request of the Polish government to annul Article 17 and confirmed that this provision can be reconciled with the right to freedom of expression provided that certain users rights safeguards are in place.

The Salon started with João Pedro Quintais (Assistant Professor at the Institute for Information Law (IViR), University of Amsterdam), who presented an overview of the case and the three main takeaways of the judgment, according to his preliminary reading of the judgment. First, the Court clarified that Article 17 follows a normative hierarchy, where the obligation of result to protect user rights or freedoms takes precedence over the obligations of best efforts that exist for preventive measures. Secondly, the ruling makes it clear that ex-post procedural safeguards are insufficient to take care of overblocking; ex-ante safeguards are also required to protect user rights or freedoms. Finally, with regards to filtering measures, it appears that it will be difficult to argue that the judgment leads to a conclusion that is different from the AG Opinion, according to which only manifestly infringing content can be blocked at upload.

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Case C-401/19: CJEU limits the use of automated filters and protects user rights at upload

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Today, the Court of Justice of the European Union issued its long awaited judgement on the compliance of the new liability regime established by Article 17 of the DSM Directive with fundamental rights. Rejecting the request of the Polish government to annul Article 17(4)(b) and the last half sentence of subparagraph (c), the Court confirmed that Article 17 can be reconciled with the right to freedom of expression because the article also provides ex-ante and ex-post safeguards to users rights that limit its impact on the right to freedom of expression and information.

Article 17 contains sufficient safeguards to minimise the impact of upload filters on fundamental freedoms

According to the CJEU, the preventive measures to monitor and block users’ uploads envisioned by Article 17(4) constitute a limitation on the exercise of the right to freedom of expression and information of the users of online sharing services, but such a limitation is compatible with Article 11 of the Charter of Fundamental Rights of the European Union, since all the conditions laid down in Article 52(1) of the Charter are satisfied. 

The Court held that the risks that the use of upload filters entails for the right to freedom of expression and information of users of sharing platforms have been sufficiently addressed by the EU legislator, which laid down sufficient safeguards in Article 17(7), (8) and (9) to protect those rights: 

  • online sharing providers have an obligation of result to not preventively block lawful content (Article 17(7));
  • those providers are only obliged to detect and block content in on the basis of  relevant and necessary information provided by rightholders and cannot be required to block content which, in order to be found unlawful, would require an independent assessment of the content by them (Article 17(8));
  • additionally, and as final safeguard for situations where, despite the obligation in Article 17(7), those providers nevertheless block such legitimate content, users have at their disposal a complaint and redress mechanism as well as out-of-court mechanisms (Article 17(9)).
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COMMUNIA Salon on the CJEU decision on Article 17 and the future of upload filters in the EU

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On the 26th of April, the European Court of Justice will hand down its judgement in Case C-401/19 — the Polish challenge of the fundamental rights compliance of Article 17 of the Copyright in the Digital Single Market Directive, which was adopted nearly 3 years ago in April 2019.

On the 28th of April, from 1500h to 1630 CET, we are hosting a virtual COMMUNIA salon to discuss the implications of this highly anticipated judgement and what it means for the national implementations of Article 17. 

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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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Our response to the new Austrian copyright implementation proposal

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One step forward two steps back
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When the Austrian government published its implementation proposal for Article 17 in December 2020 we called it “the most realistic implementation proposal yet“. On the 3rd of September the Austrian Ministry of Justice published a draft version of the implementation law covering all provisions of the CDSM directive, which includes revised provisions for implementing Article 17. And while this revised proposal maintains much of the approach contained in the previous draft, it contains some unfortunate regressions that undermine the user rights protections contained in the original draft. 

Earlier this week, together with epicenter.works, Gesellschaft für Freiheitsrechte, Wikimedia Austria, Creative Commons Austria and the Cultural Broadcasting Archive we have submitted extensive comments in response to the new implementation draft (PDF, in German) which we summarise below.

Article 17: A combination of the German implementation and the worst ideas from the Commission guidance

One of the strongest elements of the original implementation proposal was that it combined some of the approaches to safeguarding user rights and to preventing overblocking first put forward by the German Ministry of Justice in its implementation proposals with an attempt to stick as closely as possible to the text of the directive. Where the German implementation proposal (which in the meantime has become law) introduced the provisions implementing Article 17 in an entirely new act, the Austrian proposal includes them into the existing copyright act. The new proposal both maintains this approach and continues to follow the lead of the German legislator when it comes to the user rights safeguards. Unfortunately it combines this approach with introducing some of the worst elements of the Article 17 implementation guidance issued by the Commission earlier this year, the so-called “earmarking” provisions for commercially valuable works that allow right-holders to opt-out of most user rights protections. 

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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 Felix 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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