It’s our 10th birthday: Join us on the 15th of June to celebrate and discuss the future of copyright.

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This June, a few days after the implementation deadline for the DSM Directive, the COMMUNIA Association on the Public Domain will turn 10 years old. Founded in June 2011 in a Brussels bar (when gathering in the back rooms of bars was still a thing), to fight for policies that expand the public domain and increase access to and re-use of culture and knowledge, we have come a long way: 

Over the past decade we have engaged in efforts to shape the direction of copyright policy in the EU. After 10 years of existence and after the dust has settled on the Directive on Copyright in the Digital Single Market, it is time to look back, reflect and celebrate what we have achieved. 

We will do this on the 15th of June from 1530 (CEST) onwards with an anniversary event. For this occasion we will bring together key players and observers of the EU copyright policy arena from the past decade to reflect on the development of the EU copyright framework, to assess our efforts to expand the public domain and to increase access to and re-use of culture and knowledge, and to identify opportunities for policy changes in the decade to come. 

Our anniversary event will be hosted by COMMUNIA’s Teresa Nobre and Paul Keller. We will kick off by reviewing how our 14 policy recommendations have fared since we have adopted them in 2011.

After this we will be joined by Professor Juan Carlos de Martin (COMMUNIA founder and Politecnico di Torino), Professor Bernt Hugenholtz (University of Amsterdam) and Professor Pamela Samuelson (University of California, Berkeley) who will present reflections on our work and the evolution of the EU copyright framework in the past decade.

Afterwards Marco Giorello (Head of the Copyright Unit of the European Commission) will share some reflections on the evolving EU Copyright Policy Landscape. His presentation will be followed by a panel discussion on  the future of EU copyright policy between Catherine Stihler (CEO Creative Commons), Julia Reda (Gesellschaft für Freiheitsrechte and former MEP) and Melanie Dulong (Centre Internet et Société CIS-CNRS).

The COMMUNIA Anniversary is open for everyone to attend. Join us on Tuesday, the 15th of June, at 1530 CEST, by registering here. Registered participants will receive login information ahead of the event.

We are looking forward to celebrating with you 🥳

Communia Salon 2021/3: It’s the 7th of June 2021, so why is the internet still here?

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On Monday the 7th of June 2021 the Copyright in the Digital Single Market Directive will enter into force. To mark this event we are organising a special COMMUNIA Salon taking stock of the implementation process across the EU and taking a closer look at the latest developments around Article 17 of the Directive. Join us at 1530h (CET) for a very special programme.

We will kick off the event with the Eurovision DSM contest evaluating the implementation progress (or the lack thereof) in the 27 member states. We will hand out awards for the best and worst implementations and will let you know which Member States have managed to implement in time and which ones are still struggling.

After this glamorous introduction we will shine a spotlight at the latest developments related to the implementation of Article 17 of the directive. Julia Reda (Project lead Control © at GFF and former MEP), João Quintais (Institute for Information Law at the University of Amsterdam), Christophe Geiger (Centre for International Intellectual Property Studies – CEIPI, University of Strasbourg) and Paul Keller (Open Future / COMMUNIA) will take a close look at the newly adopted German implementation law with its strong focus on user rights safeguards. They will also examine the final version of the Commission’s implementation guidance which we expect to be published just in time for our Salon. The Salon will be moderated by Teresa Nobre (COMMUNIA). 

As always, the COMMUNIA Salon is open for everyone to attend and will be held on Zoom. Join us on Monday, the 7th of June, at 1530 CEST, by registering here. Registered participants will receive login information ahead of the event.

German Article 17 implementation law sets the standard for protecting user rights against overblocking

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A practical approach to protecting users' rights
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Today the German Bundestag adopted the law implementing the provisions of the DSM directive into German law. The law still needs to be confirmed by the Bundesrat before it can be signed into law by the President, but it is not expected that the law will undergo any more changes during that process. As we have explained here before, the German implementation law is one of the most ambitious implementations of the DSM directive especially with regards to the way it implements the provisions of Article 17 of the directive. And while the discussions in the Bundestag have led to a number of changes to the text of the law, the key mechanism underpinning the government proposal for implementing Article 17 has emerged essentially unchanged. In addition, the discussion in the Bundestag has resulted in a number of substantial improvements in other parts of the law. 

Presumably legitimate uses

Once signed into law, the implementation of Article 17 will be the first one that contains a practical mechanism designed to ensure that the use of upload filters does not result in the blocking of user uploads which do not infringe copyright. The need for such an ex-ante mechanism arises from Article 17(7) and has also been stressed by the Commission at various points in the past

In order to achieve this, the German implementation relies on the concept of “uses presumably authorised by law”, which must not be blocked automatically. For an upload to qualify as “presumably authorised by law”, it needs to fulfil the following cumulative criteria:

  • The use must consist of less than 50% of the original protected work,
  • The use must combine the parts of the work with other content, and
  • The use must be minor (a non-commercial use of less than 15 seconds of audio or video, 160 characters of text or 125 kB of graphics) or, if it generates significant revenues or exceeds these thresholds, the user must flag it as being covered by an exception.

If these conditions are met, the use is considered to be “presumably authorised by law” and cannot be blocked automatically. Rightholders can still challenge the legality of such uses but platforms are required to keep the uploads online until those complaints have been reviewed by the platforms (there is an exception that allows “trusted rightholders” to request immediate removal if they consider the use evidently infringing and commercially harmful). 

This mechanism had been the target of massive criticism from rightholders throughout the parliamentary debate and it is welcome to see that the Bundestag has had the courage to hold the line here. The version of the law adopted today makes one small concession to rightholders. It now specifies that the “presumably authorised by law” mechanism does not apply to “the use of cinematographic works or videos until the end of their first public broadcast, in particular during the simultaneous broadcast of sports events, provided that the rightholder requests this from the service provider”. This change addresses concerns expressed by sports associations who argued that allowing people to share 15 second clips of sports events during an event would ruin their business model. While this seems highly dubious, the exception is so narrow that its impact on legal uses will be fairly minimal. 

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DSM Directive implementation update: With one month to go it is clear that the Commission has failed to deliver

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Italian implementation threatens to set a new low
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Today it is exactly one month until the 7th of June, the day on which the EU member states have to have implemented the provisions of the 2019 copyright in the digital single market directive in their national laws. And while the 27 Member States have had more than 2 years to complete their national implementations so far only two of them have managed to fully implement the directive: the Netherlands adopted its implementation law in December of last year and on the 28th of April the Hungarian parliament adopted its implementation law

In addition there are two Member States who have adopted so-called delegation laws that allow them to implement the provisions of the directive via subsequent administrative decrees. France adopted its delegation law in December 2019 and on the 20th of April Italy followed suit and adopted its delegation law. While the French implementation decree (which will include the actual provisions to be included in the copyright act) is still nowhere to be seen, the Italian Comitato Consultivo Permanente per il Diritto D’Autore is discussing a draft version of the Italian Implementation decree (pdf in Italian) today. 

Based on what is contained in the draft the Italian implementation is shaping up to be the worst one yet. The draft fails to implement exceptions that are mandatory under the directive (the fallback exception for out of commerce works in Article 8(2) CDSM), it claims that users can rely on a non-existing parody exception and it also claims (in the text of the law itself) that automated content recognition systems (a.k.a upload filters) can “ascertain clear violations” of copyright (something that literally everyone including the French government agrees that they can’t).

Otherwise, there has been relatively little recent movement in the EU Member States. The German implementation draft is still making its way through parliament. It is now in the final stages of deliberation and the the final vote is expected to take place on the 20th of May. Meanwhile most other Member States seem to be stuck in a holding pattern after having completed public consultations of their draft implementation legislation, shying away from introducing legislation into their parliaments.

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The Croatian proposal to implement the new education exception: it could be better

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Make copyright truly fit for digital education
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In the last months, a few governments shared their proposals to adapt their national laws to the requirements of the Copyright in the Digital Single Market Directive, including to Article 5 of the Directive, which sets new minimum standards for the digital and cross-border use of copyright materials in education. 

Similarly to what we did with the Dutch, the German and the Hungarian proposals, we will keep tracking how these countries are proposing to implement this mandatory exception to copyright for educational purposes. Today, we provide an overview of the Croatian proposal by Timotej Kotnik Jesih and Maja Bogataj Jančič. 

What changes are introduced to the current copyright framework for education in Croatia?

The current Croatian Copyright Act (Zakon o autorskim pravu i sorodnim pravima, hereinafter “ZAPSP”)  does not include an educational exception for digital uses.  It contains only an exception allowing for public and stage performances of protected works in direct teaching or at the teaching-related events (see current Article 88 ZASP), which does not apply to digital and online education since it does not cover the acts of reproduction and communication of works to the public. 

The First Draft bill for the implementation of the DSM Directive, published on 17 April 2020, proposed to change the legal framework for education in Croatia by amending the existing public performance exception (see first draft Article 189), by introducing a new exception for the creation and sharing of teaching collections (see first draft Article 188), and by introducing a new exception for digital and cross-border teaching activities as mandated by Article 5 of the CDSM Directive (see first draft Article 190).

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Open letter on Article 17: Is the Commission about to abandon its commitment to protect fundamental rights?

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Has the CJEU just called the Commissions bluff?
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Civil society groups have placed a lot of hope in the European Commission to limit the dangers to fundamental rights caused by upload filters through the Commission’s Article 17 guidance, which is supposed to help member states implement Article 17 of the DSM directive in a fundamental rights-preserving manner. But with less than two months to go before the implementation deadline, the guidance is still nowhere to be seen. In an open letter published today, twenty user rights organisations are therefore calling on the Commission not to undermine elements of the guidance that would protect users’ fundamental rights by limiting the use of automated upload filters to manifestly infringing content.

Late last week, the CJEU unexpectedly postponed the Advocate General opinion in the Polish case challenging the fundamental rights compliance of Article 17 of the DSM directive by almost three months. Knowing that the upcoming Commission guidance was discussed extensively at the CJEU hearing on the Polish case in November, the postponement could very well mean that the Advocate General wants to see the document before issuing an opinion.

While the Commission has been hinting at the imminent release of the guidance for a few months now, the timing indicates that the Commission precisely wanted to avoid giving the Advocate General time to study the guidance. This does not bode well for the fundamental rights safeguards the Commission is planning to present. Signals are mounting that the delays are the result of intense behind-the-scenes political wrangling aimed at undermining the user rights safeguards to be included in the guidance. 

That’s why, together with 20 other users’ rights organisations who have participated in the EU stakeholder dialogue on the implementation of Article 17, we have sent an open letter to the Commission, raising our concerns about the handling of the final phase of this process. The letter urges the Commission “not to weaken its guidance through open ended exception clauses that seem to benefit particular rightsholders at the expense of users’ fundamental rights” and stresses that “strong ex-ante fundamental rights protections are necessary to meet the obligation of result to protect users’ fundamental rights.” 

The letter further highlights the fact that, by issuing guidance that substantially diverges from the position taken before the CJEU, the Commission would indicate that it is ultimately lacking the political will to ensure that the required fundamental rights protections will be included in national implementations of the directive.

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

On Thursday we held the second COMMUNIA Salon in 2021. This time we discussed the German governments’ proposal for implementing the controversial Article 17 of the CDSM Directive. Taking place less than three months before the implementation deadline for the directive, this edition zoomed in on one of the most advanced legislative efforts to implement the directive (the Netherlands, which adopted their implementation law at the end of last year is the only Member State that is further along in the legislative process). The discussion was kicked off by a presentation by Dr Thomas Ewert and Dr Martin Bittner from the German Federal Ministry for Justice and Consumer Protection, who have been responsible for drafting the legislation. Their introduction presentation, focusing on the legislative history of the draft and its core mechanism, can be found between 02:30 and 28:50 in the video recording: 

One highlight of the presentation was the revelation that the Ministry has also filed an amendment to its own proposal, that expands the transparency provisions contained in the proposal. The proposed amendment would allow access to “data on the use of procedures for the automated and non-automated recognition and blocking of content to authorised parties” for scientific research purposes. In the light of our repeated calls for more transparency when it comes to the use of automated content recognition, this is a small but significant improvement of the proposal. 

The initial presentation was followed by perspectives from Marco Pancini (YouTube), Xavier Blanc (AEPO-ARTIS) and Julia Reda (GFF) who highlighted different aspects of the legislative proposal. Speaking from the perspective of large pan European platforms Marco Pancini expressed concerns about the variation of legislative approaches in the Member States with Germany marking one end of the spectrum. According to him this will lead to fragmentation of the digital single market and create substantial compliance burdens for all types of platforms.

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COMMUNIA salon on the German proposal to implement Article 17

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On Wednesday, the 17th of March, we will be organising the next edition of our virtual COMMUNIA Salon. This time we will  take another look at the  German implementation proposal for Article 17 of the DSM directive: On the 3rd of February the German government formally adopted its implementation proposal which is now headed for a first reading in the German parliament (Bundestag) later this month. We will examine how the proposal differs from the original implementation proposal that we discussed in July of last year, and what we can learn from the German approach to implementing Article 17. 

For this edition of the COMMUNIA Salon we will be joined by Dr. Martin Bittner und Dr. Thomas Ewert of the German Ministry for Justice and Consumer Protection (BMJV) who will present the implementation proposal. We will have reaction from Julia Reda (Project lead control © at GFF and former MEP), Marco Pancini (Youtube) and (Xavier Blanc (AEPO-ARTIS). The presentations will be followed by an informal question and answer session and concluding remarks by Paul Keller (COMMUNIA/Open Future). The Salon will be moderated by Teresa Nobre. 

The German proposal has been adopted at an interesting time. While the Commission is finalising its implementation guidance, the German proposal shows what the user rights-preserving implementation foreseen by the Commission in its draft guidance could look like in practice. The proposed German implementation of Article 17 contains specific mechanisms designed to ensure that platforms comply with the requirement in Article 17 that legal uploads must not be blocked. While the proposal is not without flaws, it can nevertheless serve as an example for other Member States looking for a way to implement Article 17 in a user rights-preserving way

As always, the COMMUNIA Salon is open for everyone to attend and will be held on Zoom. Join us on Wednesday, the 17th of March, at 1530 CET, by registering here. Registered participants will receive login information ahead of the event.

German government draft on Article 17: Two steps forward, one step back

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maintaining the balance?
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At the beginning of February, the German Government (the “Bundeskabinett”) adopted the proposal for the implementation of the copyright directive, which opens the path for discussions in Parliament. While the proposal that has been adopted earlier this month has undergone significant changes since the first versions emerged in January 2020 (the provisions dealing the the new neighbouring rights for press publishers and most of the exceptions) and in June 2020 (the provisions dealing with Article 17, Out-of-Commerce Works and the protection of the Public Domain), it still remains one of the most ambitious implementation efforts that we have seen so far.

This post will take a closer look at the provisions implementing Article 17 of the Directive into German law. As we had noted in our analysis of the original discussion draft from June last year, the German legislator is proposing to implement these provisions into a new act that is separate from the copyright act: the “Act on the Copyright Liability of Online Sharing Content Service Providers”. By now the proposal for this act has undergone two public revisions. After the first discussion draft in June, the Ministry of Justice published a revised draft (“Referentenentwurf“) in October of last year. This revised version maintained the core user rights safeguards underpinning the original proposal (a new remunerated exception for minor use and the ability for uploaders to flag uploads as legitimate) while making a few changes to the way the pre-flagging mechanism works

A step back for user rights

Just as the original discussion draft, the Referentenentwurf drew massive criticism from rightsholders that was primarily directed at the user rights safeguards contained in the proposal. Unfortunately the Ministry of Justice has now caved in to some of these demands and as a result  the user rights safeguards have been further cut back in the final proposal adopted by the government (“Regierungsentwurf“).

The most substantial change in the Regierungsentwurf concerns the legal mechanism for ensuring that user rights are protected in line with the requirements of paragraph 17(7). The original proposal relied on a new exception that legalised minor uses of copyrighted works (any use consisting of less than 20 seconds of audio or video, 1000 characters of text or images smaller than 250Kb) and would have prevented platforms from blocking such uses. 

In the updated proposal this exception is gone and has been replaced by a more limited construction of “uses presumably authorised by law” which cannot be blocked automatically. For a use to be “presumably authorised by law” it needs to fulfil the following cumulative criteria:

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France once more fails to demonstrate support for its interpretation of Article 17

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Ex-post redress is still not good enough
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Last week the French Ministry of Culture held a virtual event to present the second report on content recognition tools on digital sharing platforms commissioned by the Conseil Supérieur de la Propriété Littéraire et Artistique (High Council for literary and artistic property – CSPLA). The new CSPLA report, authored by Jean-Philippe Mochon (who had also authored the previous report on content recognition tools), focuses on “proposals for the implementation of Article 17 of the EU copyright directive”. The report consists of three parts: 

The first part contains a “review of existing best practices” of the use of content recognition tools. Here, the authors argue that such tools “must be given their rightful place in the implementation of Article 17 of the Directive”. The second part of the report focuses on the “balance between the fundamental rights set out in Article 17”. The third and concluding part of the report contains a number of recommendations for implementing Article 17 in France (and beyond). 

The central argument that is woven throughout the CSPLA report is that automated content recognition technologies already play an important role in managing copyright on digital sharing platforms, that Article 17 provides for sufficient fundamental rights protection through the complaint and redress mechanism alone, and that temporary restrictions on freedom of expression are considered acceptable to achieve the goal of stronger protection of intellectual property rights. A more detailed critique of some of the core arguments contained in the middle part can be found in this post on the Kluwer Copyright Blog

To mark the occasion of the publication of the CSPLA report, the French permanent representation in Brussels hosted a (virtual) event that was clearly intended to demonstrate additional support for the French position in the discussion about the implementation of Article 17. 

For the presentation of the report the organizers had invited the authors of the report and three external speakers, representing the European co-legislators: MEP Axel Voss (the European Parliament’s rapporteur for the DSM directive), Marco Giorello (the head of the Copyright Unit of the European Commission) and Ricardo Castanheira (representing the Portugese Council Presidency). If the organizers of the event had hoped that these speakers would express support for the French position in the Article 17 implementation discussion, then they must have been quite disappointed: None of the three respondents came forward with unqualified support for French interpretation of Article 17. As expected, Marco Giorello made it clear once more that the Commission does not agree with the French position that there is no need for ex-ante user rights safeguards in national implementations of Article 17:

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