Article 17: Both French and Dutch implementation proposals lack key user rights safeguards

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Selective implementations sacrifice user rights
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As of January 2020 there are two Member States that have published legislative proposals for the implementation of Article 17 CDSM. In July the Netherlands published a proposal for an implementation law for public consultation that implemented all provisions of the CDSM directive. Then, in early December, France published the proposal for a project for a law on audiovisual communication and cultural sovereignty in the digital era that implements some of the CDSM directive provisions, including Article 17 (see a first analysis of the French proposal by Julia Reda here).

These first implementation proposals are coming from a main proponent of Article 17 (France) and one of the most vocal opponents (Netherlands), and allow us to get a first impression of how Member States across the EU are likely going to deal with this controversial article. Irrespective of the different positions by France and the Netherlands during the directive negotiations, the implementation proposed by both Member States do not diverge much from each other. 

Both the laws stay very close to the text of the directive: The French implementation largely follows the order of the different sections of the directive via two nearly identical articles, one dealing with copyright (L137) and the other dealing with related rights (L219). The Dutch implementation law follows its own structure and introduces 3 articles (29c, 29d and 29e) that deal with copyright and one article (19b) that declares these articles to also apply to neighbouring rights. 

Selective implementations

The general approach chosen by both legislators is to transpose the text of Article 17 (paragraphs 1-6 and 8 and the definition of online content-sharing service providers (OCSSP) from article 2(6)) as closely as possible into their national law.

Neither of the legislators transposes paragraph 17(7) (that introduces crucial safeguards protecting uses under exceptions and limitations) and both only transpose parts of paragraph 17(9) (that imposes an obligation on OCSSPs to operate a complaint and redress mechanisms for users in the event of disputes over the takedown and staydown procedures). None of the legislators provide any further guidance on how platforms are supposed to meet the requirement to make “best efforts to obtain authorisation” from rightholders. Continue reading

Implementing the new EU press publishers’ right

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Last week, we launched our Guidelines for the Implementation of the DSM Directive. This is part of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the new exclusive right granted to EU press publishers by the new Copyright Directive.

For a detailed analysis, please read Communia’s guide on Article 15, authored by Timothy Vollmer, Teresa Nobre and Dimitar Dimitrov.Continue reading

Implementing the new EU provision that protects the public domain

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Last week, we launched our Guidelines for the Implementation of the DSM Directive. This is part of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the mandatory provision in the new Copyright Directive that ensures that faithful reproductions of public domain works of visual art cannot be subject to exclusive rights.

For a detailed analysis, please read Communia’s guide on Article 14, authored by Paul Keller, Teresa Nobre and Dimitar Dimitrov.Continue reading

Implementing the new EU provisions that allow the use of out-of-commerce works

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Last week, we launched our Guidelines for the Implementation of the DSM Directive. This is part of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the mandatory provisions in the new Copyright Directive that allow cultural heritage institutions to digitise and make out of commerce works in their collections available online.

For a detailed analysis, please read Europeana and Communia’s guide on Articles 8-11, authored by Ariadna Matas and Paul Keller. Continue reading

Implementing the new EU protections against contractual and technological overrides of copyright exceptions

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This week, we launched our Guidelines for the Implementation of the DSM DirectiveThis is part of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the mandatory provisions in the new Copyright Directive that prevent contractual and technological overriding of some of the new copyright exceptions.

For a detailed analysis, please read Communia’s guide on Article 7, authored by Teresa Nobre and Natalia Mileszyk. Continue reading

Implementing the new EU exception for preservation of cultural heritage

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This week, we launched our Guidelines for the Implementation of the DSM Directive. This is part of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the mandatory exception for preservation of cultural heritage contained in the new Copyright Directive.

For a detailed analysis, please read IFLA and Communia’s guide on Article 6, authored by Stephen Wyber. Continue reading

Implementing the new EU exception for digital and cross-border education

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This week, we launched our Guidelines for the Implementation of the DSM Directive. This is part of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the mandatory exception for digital and cross-border education contained in the new Copyright Directive.

For a detailed analysis, please read Communia’s guide on Article 5, authored by Teresa Nobre. Continue reading

Implementing the new EU exceptions for text and data mining

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Yesterday, we launched our Guidelines for the Implementation of the DSM Directive. This is the first of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the two mandatory exceptions for text and data mining contained in the new Copyright Directive.

For a detailed analysis, please read LIBER and Communia’s guide on Articles 3 and 4, authored by Benjamin White and Maja Bogataj Jančič. Continue reading

Our Guidelines for the Implementation of the DSM Directive

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We are thrilled to release our Guidelines for Implementation of the DSM Directive.

These guidelines explain different provisions of the new Copyright Directive and make suggestions on what to advocate for during the implementation process of those provisions in the EU Member States. They are aimed at local advocates and national policy makers, and have the general objective of expanding and strengthening user rights at a national level beyond what is strictly prescribed by the new Directive. 

Communia partnered with LIBER (Articles 3 and 4), IFLA (Article 6) and Europeana (Articles 8 to 11) for the creation of these guidelines. The guidelines are part of a wider implementation project of COMMUNIA and its members Centrum Cyfrowe and Wikimedia, which includes a range of activities (including our transposition bootcamp) to make sure that local communities in as many Member States as possible participate in their national legislative processes.  

There is room for improvement in the DSM Directive

The two and a half years of public discussions of the new Copyright Directive were largely centred on a small number of problematic clauses (the press publishers right and the upload filters). However, the Directive also includes a number of provisions that improve the existing EU copyright rules (a number of new copyright exceptions and protections for the public domain).

While the national implementations will have to include all the problematic aspects of the new Copyright Directive, there is some room for meaningful improvements, and some measures can be taken to mitigate the worst provisions of the Directive. The EU Member States have until 7 June 2021 to implement the Directive into their national laws. 

Expanding and strengthening user rights

Our detailed proposals try to achieve the general objective of expanding and strengthening user rights by suggesting that, during the national implementation process, Member States make use of the following flexibilities: Continue reading

The Transposition Bootcamp – we continue working towards better copyright

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We’re happy to have you on board
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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: transposition@communia-association.org – we’re happy to have you on board with our project!