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.
Last week’s third meeting of the Article 17 Stakeholder dialogue was the first one of what the Commission had referred to as the 2nd phase of the dialogue. After two meetings of introductory statements by various stakeholders (see our reports here and here), the third meeting consisted of a number of more in depth technical presentations on content recognition technologies and on existing licensing models (Video recording available here).
The morning session saw presentations from three technology providers. YouTube presented its own Content ID system, PEX presented its platform independent attribution engine and finally Videntifier showed off its video and image matching technology.
The biggest part of the discussion in the morning was centered around understanding the way YouTube’s content ID system works and how it relates to copyright (hint: it’s complicated). The overall impression that arose from the discussion is that very few participants actually understand how content ID works (and those who do, like the big record labels, don’t seem to be interested in talking about it). The fact that the Commission was among those asking questions to get a better understanding of the inner working of content ID is rather striking in the context that evidence based lawmaking was supposed to be one of the priorities of the Junker commission. So far the stakeholder dialogue seems more like an exercise in legislation based fact finding.
While many aspects of Content ID remained opaque, one thing became clear though-out the three presentations: none of the presented technologies can do more than matching content in user uploads. None of the technologies presented can understand the context in which a use takes place and as a result they are incapable of detecting if a use is covered by an exception or not. In the words of the technology providers (lightly edited for clarity): Continue reading
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
Yesterday 51 leading European copyright scholars published a statement on “Safeguarding User Freedoms in Implementing Article 17 of the Copyright in the Digital Single Market Directive“. The statement is intended as input into the ongoing stakeholder dialogue. It focuses on the interplay between user rights and the filtering obligations established by Article 17. From the Kluwer Copyright blog:
Against this backdrop, a group of European academics (including the author of this post) has drafted a document with recommendations on user freedoms and safeguards included in Article 17 of the DSM Directive – namely in its paragraphs (7) and (9), to be read in the context of the aforementioned stakeholder dialogues. The recommendations are divided into three sections: on promoting licensing and limiting preventive measures; on exceptions and limitations in Article 17 (user freedoms); and on minimizing the risks of broad filtering and over-blocking (user safeguards). Despite the controversial nature of the topic, the recommendation has already been endorsed by around 50 European academics in this area, which is a testament to its balanced approach. Our intention is that these recommendations and interpretative guidelines are taken into consideration by the Commission, stakeholders, and Member States in their discussions on national implementations of Article 17 DSM Directive.
Based on a close reading of paragraphs 17(7) and 17(9), the academics show that Article 17 requires online platforms (OCSSPs in the language of the directive) to prioritise protecting users rights over blocking content. This statement provides strong support for our positions in the stakeholder dialogue. Continue reading
On Tuesday this week the participants of the stakeholder dialogue on Article 17 of the EU copyright directive convened in Brussels for the second meeting. After a first meeting that focussed on practices in the music, games and software sectors (see our report here), this week’s meeting focussed on the current situation in the audiovisual (AV) and publishing sectors.
Hollywood: Article 17 is about filtering after all
The meeting kicked off with a long series of statements from the many different rightholders in the AV sector (see the video recording here). The assembled sector representatives made it clear that from their perspective Article 17 is welcome (as it clarifies that online platforms need to obtain licenses for the works uploaded by their users) but that they are not interested in widely licensing AV works to UGC platforms and would instead focus on the blocking and removing of unlicensed content via the upload filtering mechanisms introduced by Article 17.
This approach is the logical consequence of the predominant business model in the AV sector which relies on exclusive licensing to selected outlets (Cinema, TV, VOD platforms). It directly contradicts the music industries’ narrative from the first meeting that Article 17 is about licensing and not about blocking access – as in the case of music general availability is crucial. Representatives of the AV industry made it very clear that they would fight any attempts at non-voluntary licensing and that they would also fight against effective protection for user rights under exceptions and licensing (see for example the statement issued by the Motion Picture Association starting at 10:41:44 of the video recording). These initial statements make it clear that the AV industry does indeed look at Article 17 as an instrument to limit freedom of expression and reuse and will likely use the stakeholder dialogue to bend the article further in this direction. Continue reading
Article 17(10) of the Copyright in the Digital Single Market directive requires the Commission to “organise stakeholder dialogues to discuss best practices for cooperation between online content-sharing service providers and rightholders”. Last week Tuesday we took part in the first meeting of the stakeholder dialogue. The dialogue (which will consist of a series of meetings) is supposed to provide the Commission with input for producing guidelines can “balance fundamental rights and the use of exceptions and limitations” with the upload filtering obligations introduced by Article 17 of the directive.
The meeting, which was attended by 80 stakeholders (plus representatives from the 28 Member States), was supposed to focus on “current practices with regard to the cooperation between rightholders and online content sharing service providers” in the music, software and gaming sectors. The day was kicked off by a short welcome address by Commissioner Maria Gabriel in which she praised the outcome of the copyright reform as an example of Europe taking the lead in developing rules for the digital environment (translation from the original French):
The new Copyright Directive in the Digital Single Market demonstrates the ability of the European Union to collectively reflect on today’s challenges and to bring about just, innovative and concerted responses. It is another example of a Europe that opens the way and sets an example to the rest of the world.
[…] The new Directive, and in particular Article 17, opens a new era in the regulation of the relationship between copyright and digital services. And this, without touching the fundamentals. It does not challenge the traditional rules of copyright while introducing a new framework that provides essential guarantees to ensure a proper balance between fundamental rights, in the first place freedom of expression on the Internet.
[…] With the adoption of the Copyright Directive, the European Union is leading a global movement to develop a fairer economic model for the production, access and distribution of content in the digital environment. Europe is now a more attractive place to invest in creation and digital.
It should be evident that we do not share this positive assessment of the directive. If the directive was indeed such a balanced piece of legislation as the commissioner claims, then there would not be a need to organize stakeholder dialogue to patch up its worst inconsistencies. Continue reading
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: firstname.lastname@example.org – we’re happy to have you on board with our project!
Yesterday the European Commission invited COMMUNIA to participate in the “Stakeholder dialogue under Article 17 of the Directive on Copyright in the Digital Single Market” that will kick off in Brussels next week. This invitation comes after we had expressed our interest to participate in response to a call issued by the Commission in September. It is our understanding that COMMUNIA will be one of a small number of civil society participants in the dialogue (the Commission has yet to publish a list of participating organisations).
Stakeholder dialogue to the rescue!
Article 17(10) of the Copyright in the Digital Single Market directive requires the Commission to “organise stakeholder dialogues to discuss best practices for cooperation between online content-sharing service providers and rightholders”. Based on the outcome of these dialogues with “content-sharing service providers, rightholders, users’ organisations and other relevant stakeholders” the Commission is expected to “issue guidance on the application of Article 17” that is supposed to “balance fundamental rights and the use of exceptions and limitations” with the upload filtering obligations introduced by Article 17.
Given that two and a half years of legislative wrangling have failed to produce a balanced (or at least coherent) outcome, it seems rather unlikely that this stakeholder dialogue will be able to achieve such a balance. Still the stakeholder dialogue provides an opportunity to minimise the harm to the freedom of creative expression and the ability for smaller platforms to strive under Article 17. Such an optimistic view of the stakeholder dialogue has been put forward by the German government, which has stated that it
… therefore assumes that this dialogue is based on a spirit of guaranteeing appropriate remuneration for creatives, preventing ‘upload filters’ wherever possible, ensuring freedom of expression and safeguarding user rights. The German Federal Government assumes that uniform implementation throughout the Union will be agreed on in this dialogue, because fragmentary implementation with 27 national variants would not be compatible with the principles of a European Digital Single Market.
Five measures to minimize the harm caused by upload filters
While we have strongly criticised Article 1, mainly because of the filtering obligations it introduces, there are also positive elements in the article. These include mandatory exceptions for quotation and parody, and a number of procedural safeguards intended to ensure that users can exercise the rights they have under these exceptions and limitations.
As part of our contribution to the stakeholder dialogue we will strive to ensure an outcome that minimises the impact and scope of the filtering provisions and that maximises the scope of exceptions and limitations that guarantees meaningful safeguards for users to exercise the rights they have under these exceptions. From our perspective, the following five measures will guide our contribution to the stakeholder dialogue: Continue reading
Earlier this year, Poland initiated a legal challenge against Article 17 of the Directive on copyright in the Digital Single Market before the Court of Justice of the European Union (CJEU) [C-401/19]. The CJEU has finally published the application for this legal challenge. Our member, Centrum Cyfrowe Foundation, has tried to get access to the complaint before using Freedom of Information requests, without success…
In our opinion, referring the Directive to the Court of Justice is a good step that can help clear controversies concerning Article 17. An independent court will assess issues that in the policy debate are usually dismissed by representatives of rightsholders as fear-mongering or disinformation.
The Republic of Poland seeks the annulment of Article 17(4)(b) and Article 17(4)(c), in fine of the Directive on copyright in the Digital Single Market. In the alternative, should the Court find that the contested provisions cannot be deleted from Article 17 of Directive without substantively changing the rules contained in the remaining provisions of that article, the Republic of Poland claims that the Court should annul Article 17 of Directive in its entirety.Continue reading
Just one month after the new Copyright in the Digital Single Market Directive went into force, the Dutch government has shared their proposal for its implementation, through an amendment of their existing copyright law. The proposal is currently in a public consultation phase.
We would like to provide here an overview of the Dutch proposal to implement locally the new EU educational exception (article 5 in the final version of the Directive). This is the beginning of our effort to track how countries across Europe will implement, over the coming two years, this mandatory exception to copyright for educational purposes.
We are in particular interested in three issues that have been our concern during the legislative debate on this exception:
- Are Member States introducing the controversial article 5(2), through which they have the option to make the exception no longer applicable and available to educational establishments if “suitable licenses are easily available on the market (what we call the issue of “license priority”);
- What is the scope of the exception:
- How are educational institutions and staff defined?
- Will the educational community be able to rely on email, cloud services and other password-protected environments, or will these not be considered “secured electronic environments” under the exception?
- Will Member States define a priori the extent to which a work can be used, leading to different quantity limits in different countries, or will they let practice and courts (relying on the three-step test) define what is balanced in a given situation?
Choices made on these issues will determine, how broadly – or narrowly – can the exception be depended on. Taken together, they will also create either a harmonized or fragmented legal landscape for teachers and learners across the Union.
- Are Member States changing remuneration rules for educational uses? Currently, 17 Member States do not remunerate most or all of the used permitted under their existing education exceptions – will this change with the new exception?
The Dutch proposal is a simple amendment that adds two paragraphs to the existing educational exception (article 16 of the Dutch Copyright Law). In relation to our issues of particular concern, we note that the Dutch government:
- decided not to use the article 5(2) backdoor to hack the new educational exception and make it partially or fully not applicable in the Netherlands, which we applaud (because we believe – along with the CJUE – that users should have the right to benefit from the copyright exceptions that were created for their benefit at all times, and not only when there are no market options for them to get a license for those minimum uses that are protected by the exception);
- could do more to provide as broad a scope for the exception as possible, within the boundaries set by the Directive;
- has proposed not to change its approach to remuneration – use of content under the exception requires fair compensation (art. 16.1.5°).
Additionally, the proposal includes an explicit provision against contractual override (art. 16.6), which implements another important element of the new EU educational exception.
We will be working with our Dutch partners in the consultation phase, both to provide feedback on the government’s proposal, and to monitor other responses to the proposal. The consultations are open until 2 September 2019.