Last week Monday, on the first anniversary of the entry into force of the Copyright in the DSM Directive, we held the first virtual edition of our COMMUNIA Salon. During the event we presented an overview of the implementation status in the EU member states, zoomed in (sic!) on various legislative proposals to implement Articles 15 and 17 of the Directive and discussed ways to challenge parts of the Directive via the legal system. If you have missed the event you can watch a recording of the presentations and the subsequent discussion here:
The event was kicked off by Teresa Nobre who launched the COMMUNIA implementation tracker and presented an overview of the implementation in the EU member states. While France has already implemented the press publishers right, the majority of EU member states are still in various stages of consultation. One year after the entry into force of the Directive, only Belgium, Croatia, France, Germany, Hungary and the Netherlands have put forward legislative proposals. Continue reading
Today we are launching our new DSM Directive Implementation Tracker.
These tracking pages aim to provide information on the status of the implementation of the new Copyright Directive in all EU Member States. The information contained in each country page was collected by local organisations and individuals in each country and/or from public sources.
This tracker is part of a wider implementation project of COMMUNIA and its members Centrum Cyfrowe and Wikimedia, which includes a range of activities (including our DSM Directive Implementation Guidelines) to make sure that local communities in as many Member States as possible are aware of their national legislative processes and participate in those processes.
What is the current status of the implementation?
One year after the entry into force of the DSM Directive, the implementation picture is very varied. So far only one member state (France) has adopted one element of the Directive (the new press publishers right) into national law.
There are currently two member states with implementation law proposals tabled in their national parliaments. In France a proposal implementing articles 17 – 22 of the Directive has cleared committee and is awaiting first reading in plenary. In the Netherlands a proposal implementing the entire Directive has just been introduced into parliament and is awaiting reading in the legal affairs committee.Continue reading
Back in April 2019, at the occasion of the final vote on the DSM Directive in the Council, the German Federal Government issued a statement, announcing that it intended to implement Article 17 with a focus on “preventing ‘upload filters’ wherever possible, ensuring freedom of expression and safeguarding user rights”. While the German Government has yet to produce an implementation proposal for Article 17, we may now have gotten a first insight in what such an implementation might look like. Late last month, the Kölner Forschungsstelle für Medienrecht at the University of Applied Sciences in Cologne, published a step-by-step concept for implementing Article 17 of the DSM Directive (“Stufenkonzept gegen Overblocking durch Uploadfilter“).
The paper authored by Prof. Dr. Rolf Schwartmann and Prof. Dr. Christian-Henner Hentsch consists of an implementation proposal in the form of concrete legislative language. The objective of the authors seems to be to stay as close as possible to the objectives formulated in the German statement to the Council. What makes this proposal remarkable is that it is the first proposal (although not an official one) for implementing the Article 17 of the new Copyright Directive that does not consist of more or less literal transposition of Article 17 into national law (as it is the case in the French, Dutch and Belgian legislative proposals). In order to achieve the stated objective of preventing over-blocking by upload filters, the concept proposes a combination of Article 17 with Article 12 of the DSM Directive (which provides Member States the option to introduce Extended Collective Licenses).
The implementation proposal contains modifications of three different acts: the Copyright Act (Urheberrechtsgesetz – UrhG), the Tele Media Act (Telemediengesetz – TMG) and the Collective Management Organisations Act (Verwertungsgesellschaftengesetz – VGG). Specifically the authors propose the following modifications:
In the Copyright Act, they propose to add a new section to the article (§ 19a UrhG) that defines the act of communication to the public. The purpose of this addition is to include acts of giving the public access to copyright-protected user uploaded works by Online Content Service Providers (OCSSPs) in the definition of the existing making available to the public right. This establishes that, in principle, OCSSPs need authorisation from rightholders for such acts. The added section also includes the definition of OCSSPs, which is a literal transposition of the definition used in the DSM directive.
The second addition to the Copyright Act is a new exception covering uses for the purpose of caricature, parody or pastiche by users of OCSSPs (§ 51a UrhG). Notably, this exception only applies in the context of sharing works via OCSSPs (which is highly unusual as copyright exceptions are usually not limited to specific services) and is conditional on remuneration to rightholders via collective management organisations. Continue reading
Given the ongoing health emergency, the European Commission’s stakeholder dialogue on the implementation of Article 17 of the Copyright Directive is currently suspended. The 7th meeting of the stakeholder dialogue, which was originally scheduled for Monday of this week and where the Commission was expected to “share initial views on the content of the guidelines”, has been cancelled and it is currently unclear how and when the stakeholder dialogue will be resumed. In the meanwhile, the European Commission is continuing its work on the guidelines.
While we are waiting for news on the future of the stakeholder dialogue we have produced an input paper for the Commission (pdf) that summarises our observations from the stakeholder dialogue so far and formulates a number of principles that the Commission should take into account when drafting its guidelines. In line with our initial principles, the input paper focuses on licensing, transparency and procedural safeguards for users’ rights. The paper builds on the model that we had presented during the last meeting of the stakeholder dialogue.
Specifically, we are asking the Commission to include the following in the Article 17 implementation guidelines:
- Recommend to national lawmakers to fully explore all legal mechanisms (including collective licensing with extended effect, mandatory collective management schemes and other non-voluntary licensing schemes) for granting OCSSPs authorisation to have in their platforms copyright-protected works and other subject matter uploaded by their users.
- Require that all ownership claims made in the context of the measures required by Article 17 must be made fully transparent to allow public scrutiny and prevent unjustified removals or blocking by rightholders claiming ownership of works that they do not own.
- Require that OCSSPs publish statistical information on the number of removal/blocking actions as well as the number of complaints and the resolution of complaints arising as the result of such actions.
- Requires that in cases other than obvious infringement and in order to prevent automated measures from affecting lawful uses, users must have the ability to override all automated actions before the blocking/removal takes effect.
- Require that in case of obvious (“prima facie”) infringement uploaded content can be automatically blocked/removed under the condition that uploaders have the ability to easily and effectively challenge such blocks/removals.
- Require that users must be able to rely on all existing exceptions as grounds for challenging removal/blocking actions and must be able to dispute the ownership claims on which an action is based.
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
Today the Association of European Research Libraries (LIBER) issued a warning that the new Text and Data Mining (TDM) exceptions contained in the DSM directive can easily be undermined by technical blocking from publishers. LIBER has come to this conclusion based on the results of a survey on content blocking, carried out by LIBER’s Copyright & Legal Matters Working Group and the UK Libraries and Archives Copyright Alliance (LACA). The submissions to the survey so far confirm fears that Technical Protection Measures (TPM) can be abused by rightholders to limit the usefulness of the exceptions contained in the directive.
Article 3 of the directive allows reproductions in the context of text and data mining for the purposes of scientific research made by research organisations and cultural heritage institutions. While the article allows rightholders to take measures to ensure the security and integrity of the networks, it does not allow them to prevent researchers from exercising their rights under the exception. It also requires rightholders to remove any TPMs that prevent researchers from exercising their rights but does not specify how quickly this has to happen.
The survey conducted by LIBER shows that in practice it is difficult for researchers to get rightholders to remove TPMs or other access and use restrictions to content that research institutions have licensed. And in cases where such limitations are eventually removed the process is often long and resource intensive. All of this does not only frustrate efforts to text and data mining by individual researchers, but can also have negative consequences for entire institutions.
The submissions shared with us by libraries and researchers from a mix of countries (some with TDM exceptions already and some without) show that:
- Researchers are blocked from accessing many types of content. Journal articles were the most common type of content mentioned (44%) but eBooks, websites, databases and newspapers were also cited.
- Content blocking takes, on average, nearly a month to resolve. Respondents reported that it took between 24 hours and 2-1/2 months to resolve the content blocking issue, with the mean time being 24 days. A fifth of survey respondents said they were only partially able to resolve the issue and 11% said it was never resolved.
- Sanctions impact whole communities, not just individual researchers. Actions taken by publishers included 1) suspension of campus-wide access to paid for electronic subscriptions 2) threats to cut off access to content unless TDM was stopped 3) technically limiting downloads to one document only 4) a request for additional payments and 5) the introduction of captcha technology to frustrate data mining
The findings reported by LIBER are extremely relevant in the context of the ongoing implementations of the DSM directive in the EU member states. As we have noted in our implementation guide for articles 3 & 4 of the directive Member states should include in their national laws provisions requiring rightholders to remove TPMs and resolve lock-outs within a maximum period of 72 hours once reported.
In order to better make the case why such a requirement must be included in national implementations LIBER is continuing to collect evidence of abusive practices. If you work for an academic research institutions that has ran into similar issues in the past you can still contribute your experience to LIBER:
If you or your organisation have ever been blocked from accessing a publisher’s servers for reasons you believe are related to data mining, fill out the survey. The survey can be answered anonymously and will remain open indefinitely. You can also send information on this issue to firstname.lastname@example.org”.
A few weeks ago, the German government shared its proposal for the implementation of some of the provisions of the new Copyright in the Digital Single Market Directive, including the new EU education exception (Article 5 in the final version of the Directive).
Similarly to what we did with the Dutch proposal, we will provide here an overview of the German proposal to implement locally the new exception. This is part of our effort to track how countries across Europe implement this mandatory exception to copyright for educational purposes.
What changes are introduced to the existing legal framework in Germany?
Germany proposes to implement the new educational exception through an amendment to the existing education exception in Section 60a of the Act on Copyright and Related Rights (see English version here).
The current exception covers all relevant, digital and non-digital, educational activities undertaken by educational establishments for non-commercial purposes. The exception is technologically neutral and allows the educational establishment’s teachers and students to hold activities in any venues. However, it sets quantity limitations (save for illustrations, isolated articles from the same professional or scientific journal, small-scale works or out-of-commerce works, which can be used in their entirety, the exception only allows the use of up to 15% of a work) and it excludes specific uses of certain types of materials from the scope of the exception, most notably materials exclusively intended for teaching in schools and sheet music. Furthermore, most uses are subject to the payment of compensation to the rightholders.
Under the new proposal, the scope of the education exception would be practically the same. The main difference is that the exclusion of specific uses of certain types of materials would be conditioned to the existence of licenses (easily available in the market and covering the needs and specificities of educational establishments) authorizing those uses. In other words, if such licenses do not exist, then those uses can be made under the exception.
What is the main flaw of Germany’s proposal?
The main flaw of the proposed education exception is to give preference to licensing offers over the educational exception, with respect to specific uses of certain types of materials, taking away the educators and the learners right to make those uses under the exception as soon as copyright owners start selling licences for said uses.Continue reading
This week saw the sixth meeting of the EU stakeholder dialogue on the implementation of Article 17 of the new copyright directive. This meeting was the first one where the question of how to reconcile the protection of user rights’ with automated filters based on technology that cannot assess the legality of the use of copyrighted works was explicitly on the agenda. From the perspective of the users’ organisations participating in the stakeholder dialogue this is the main question that the stakeholder dialogue (and the guidelines that the Commission will have to issue afterwards) needs to address.
Unfortunately, Monday’s meeting did not result in a productive discussion about how to protect users’ rights. Proposals made by COMMUNIA and Studio71 on how to strike a balance between the rights of users and the interests of creators and other rightholders were largely ignored by a coalition of major rightholders from both the music and the audio-visual sectors. Working in concert, the representatives of the Hollywood studios (MPA), film producers (FIAFP), commercial television channels (ACT), major record labels (IFPI) and music publishers (ICMP) disputed the fact that there is a tension between protecting users rights and automated blocking, restated their conviction that Article 17 is only about empowering them versus the platforms, and suggested that users should simply trust that rightholders will not block free speech or other legitimate uses. In doing so they have made it clear that they want their interests to prevail at all cost, that users should not be trusted and that for them user rights are something that should exist at their discretion.
This outcome leaves the European Commission in the difficult position to make sense of the input gathered throughout the previous six meetings and to outline a way forwards. Fortunately it seemed that the Commission is not willing to succumb to the unconstructive behaviour exhibited by rightholders and will take serious its task of finding a balance between users rights and the interests of different types of rightholders.
A proposals for protecting users’ rights
So how could such a balance look like and what is at stake? One of the key insights that emerged from the previous rounds of the stakeholder dialogue is that even the most advanced content recognition technology is incapable of understanding the context in which works are used. This means that technology alone cannot make the determination if a use is lawful or not. Article 17 requires platforms to take measures to prevent the availability of content that rightholders want to keep off the sharing platforms and, at the same time, to ensure that legitimate uses (such as quotations or parodies) are not affected. This means that no matter how good it is at recognising content, ACR alone cannot meet the requirements of the directive. Continue reading
Last week Thursday saw the 5th meeting of the Commission’s stakeholder dialogue on Article 17 of the copyright directive. On paper this meeting was the first meeting where the stakeholders had the opportunity to discuss the actual provisions contained in Article 17 of the directive in order for the Commission “to gather evidence, views and suggestions that the services of the Commission can take into account” when preparing its guidelines on the application of Article 17.
Contractual freedom über alles
In reality (recording available here), the 5th meeting was the meeting where it became clear that the vast majority of represented stakeholders is not interested in constructively contributing to the process and is instead participating in order to actively undermine the stakeholder process. Interventions made by commercial rights holders from the Music and AV sectors, as well as by platforms, focused on demanding maximum contractual freedom and arguing that the Commission’s guidelines should not contain any binding requirements. When asked to provide input for defining core concepts of the directive (such as “best efforts to obtain authorisation” and “best efforts to prevent availability”), most stakeholders limited their contribution to countless variations of “it depends” or theorising about “dynamic concepts”.
While there were some notable exceptions (apart from users organisations, collective management organisations and journalists’ organisations provided substantive input), it can hardly be surprising that both rightholders and big platforms have no interest in substantive guidelines that would offer meaningful safeguards for user rights. Continue reading
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