CJEU hearing in the Polish challenge to Article 17: Not even the supporters of the provision agree on how it should work

Echtpaar bij de dorpsrechtbank van Puiterveen
Will the CJEU strike down Article 17?
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On Tuesday, November 10, the Court of Justice of the European Union (CJEU) heard case C-401/19. This case is a request by the Polish government to annul the filtering obligation contained in Article 17 of the Copyright in the Digital Single Market (DSM) Directive on the grounds that it will lead to censorship and will limit the freedom of expression and the freedom to receive and impart information guaranteed in Article 13 of the EU Charter of Fundamental Rights (Charter).

The defendants in this case are the European Parliament and the Council of the European Union. In addition, the European Commission and the governments of France and Spain intervened in the case on the side of the defendants. Advocate General Saugmandsgaard Øe was also present at the hearing.

Even for astute followers of the discussions around the implementation of Article 17, the hearing contained a number of surprises. While several Member States have been soldiering on with their national implementation proposals with little regard for the fundamental rights implications of Article 17, the hearing showed that the Court is taking Poland’s complaint very seriously and that the compliance of the contested provisions of Article 17 with the Charter is far from evident. Frequent reference was made during the hearing to the recent opinion of Advocate General Saugmandsgaard Øe in the YouTube and Cyando cases, which is highly critical of extensive obligations on platforms to police the copyright infringements of their users.

On the face of it, the case is about Poland’s request to annul Articles 17(4)(b) and (c) of the DSM directive. Poland argued its case, which essentially rests on the observation that while not explicitly mandating them, Article 17(4)(b) and (c) effectively require platforms to implement upload filters because there are no other effective means to comply with the obligations contained therein. Poland argues that this will lead to censorship and will limit the freedom of information of the users of online platforms.

According to Poland, the key problem with the directive is the move away from active participation of rightholders (as initiators of removal requests in the context of notice and takedown procedures) and instead handing the responsibility of removing infringing uploads over to platforms who will have to develop private enforcement systems to avoid liability for copyright infringement. Because they are not facing any comparable risk when they limit user rights by blocking access to legal content, this creates strong incentives for over-blocking. This in turn will result in censorship and violation of the fundamental rights to freedom of expression and information under the Charter. Consequently, the problematic parts of Article 17 should be annulled by the Court.

All other parties intervening in the case objected to this line of argument and stated that in their view Article 17 does not violate any fundamental rights. However, they presented strikingly contradictory interpretations of what Article 17 actually requires of platforms. There are two distinct lines of argument: The Commission, the Council and the European Parliament argued that that Article 17 contains enough internal safeguards to prevent users’ fundamental rights from being unduly limited. On the other hand, France and Spain argued that some limitations of fundamental freedoms are justified by the objective that Article 17 seeks to achieve. Continue reading

Taming the upload filters: Pre-flagging vs. match and flag

Raderboot
How to limit the damage filters can do
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One of the most important elements of any implementation of Article 17 will be how platforms can reconcile the use of automated content filtering with the requirement not to prevent the availability of legitimate uploads. While most implementation proposals that we have seen so far are silent on this crucial question, both the German discussion proposal and the Commission’s consultation proposal contain specific mechanisms that are intended to ensure that automated content filters do not block legitimate uploads, and that uploads are subject to human review if they are not obviously/likely infringing. 

In order to achieve this objective, the German discussion draft published in June relies on the idea of “pre-flagging”: users would be allowed to flag uploads containing third party works as legitimate. Platforms would then be prevented from automatically blocking pre-flagged uploads unless they determine that the flag is incorrect because the upload is “obviously infringing”. 

By contrast, the Commission’s implementation guidance consultation proposes a “match-and-flag” mechanism: if upload filters detect the presence of a third party work in an upload and the use is not deemed to be “likely infringing”, then the uploader is notified and given the ability to state that the use is legitimate. If the user flags the upload as legitimate, the platform will have to initiate a human review of the upload, which remains available from the moment of upload until the review has been concluded. This type of mechanism was first suggested by a group of copyright academics in October of last year. It is also at the core of the proposal that we had presented during the last meeting of the stakeholder dialogue.

Both approaches provide a mechanism that limits the application of fully automated upload filters (while implicitly acknowledging the fact that many platforms will deploy upload filters). In the Commission’s proposal, filters are limited to making a pre-selection (“is the upload likely infringing?”); in the German proposal, they can only operate on unflagged content and to filter out “obviously incorrect” pre-flags.

Convergence on “match-and-flag”?

Both approaches have been criticised by rightholders, who claim that they undermine the “original objective of the directive” without providing alternative proposals on how automated filtering can be reconciled with the requirement not to block legitimate uploads. In addition, the German discussion proposal has also been criticised by platforms such as Google and Facebook. The platforms are arguing that giving users the ability to pre-flag every single upload would be impractical and would likely lead to substantial numbers of unnecessary (where the content in question is already licensed) or unjustified (users making excessive use of the pre-flagging tool) pre-flags, which would make such a system impractical to operate at scale. Continue reading

COMMUNIA Salon 2020/3: The German proposal to implement Article 17 – A broken promise or a way forward?

COMMUNIA Salon 2020/3: The German proposal to implement Article 17Licentie

On Thursday, the 2nd of July, we will be organising the next edition of our virtual COMMUNIA Salon to discuss the new German implementation proposal for Article 17 of the DSM directive. For this event we will be joined by Julia Reda (Project lead control © at the GFF and former MEP), John Hendrik Weitzmann (General Counsel at Wikimedia Deutschland) and Dr. Martin Husovec (Assistant Professor, Department of Law, London School of Economics). 

As we have written in our initial reaction, the German proposal is the first serious attempt by a member state to implement Article 17 of the directive in a way that preserves the precarious balance between the rights of users and creators. Where previous implementation proposals have limited themselves to (selectively) transposing the provisions of the directive, the German Ministry of Justice has presented a proposal that adds a number of interesting (and potentially controversial) additional provisions, which seem to be designed to strengthen the position of both users and individual creators. These include the addition of a remunerated de-minimis exception intended to safeguard common types of so-called “user generated content”, the ability for uploaders to “pre-flag” legitimate uses of protected works in their uploads, and the addition of a direct remuneration rights intended to ensure that individual creators benefit from the new legal regime.

With this proposal the German government presents an alternative vision for how Article 17 could work in practice, which could serve as a model for other member states when implementing the directive. During our Salon we will hear first reactions from civil society stakeholders and analyse the legal underpinnings of the more innovative elements of the proposal, such as the proposed de-minimis exception. The presentations will be followed by an informal question and answer session.

The Salon is open for everyone to attend and will be held on Zoom. Join us on Thursday, the 2 of July, at 1530 CET, by registering here. Registered participants will receive login information ahead of the event.

COMMUNIA Salon: Copyright in the DSM Directive – one year after

Communia Salon 2020: DSM directive one year afterLicentie

The Copyright in the Digital Single Market (CDSM) Directive went into effect on the 18th of May 2019. During the COMMUNIA salon we will be given an update on the implementation status in the EU member states and the discussions at the European Commission’s stakeholder dialogue on the implementation of Article 17 of the directive. Join us on Monday the 18th of May 2020 from 1530h – 1700h (Brussels time) for a series of short presentations and an informal question and answer session.

While the focus of most policy makers is on the current health emergency, the implementation of the CDSM directive is ongoing. Member states have until the 7th of June 2021 to implement the divisive and complex rules contained in the directive.

A year after the entry into force of the directive a messy picture has emerged. In France, which has already implemented the press publishers right, that implementation has led to an intervention of the competition authority. The Polish government has challenged parts of Article 17 in the CJEU arguing that it violates fundamental rights. And while some Member States have published legislative proposals for the implementation of the directive, most Member States are still holding formal and informal consultations.

Meanwhile, the Commission’s own stakeholder dialogue, which brought more than 80 different stakeholders together to discuss the implementation of Article 17, has come to a COVID19 induced halt after a series of contentious meetings, and all eyes are now on the European Commission which has yet to present a first outline of the implementation guidelines.

During the upcoming COMMUNIA salon, Teresa Nobre (COMMUNIA) will provide an overview of the implementation status in the different member states. Ula Furgal (CREATe) will provide a more in depth perspective on Article 15 (the new press publishers rights) including recent developments in France and Australia. Paul Keller (COMMUNIA) will provide an overview of the discussions surrounding the implementation of Article 17 including the ongoing stakeholder dialogue. Finally, Julia Reda (GFF /control ©) will discuss the role of litigation in ensuring a fundamental rights-preserving implementation of the CDSM directive.

The presentations will be followed by an informal question and answer session.

This event is open for everyone to attend and will be held on Zoom. In order to ensure smooth participation we request participants to register beforehand. Registered participants will receive login information ahead of the event.

The Transposition Bootcamp – we continue working towards better copyright

Ženska_četa_na_polju
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! 

Germany’s non-paper on art. 13 screams “Houston, we have a problem”

Nasa Apollo 13 Mission Control
There's no public support for Article 13
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This week Politico.eu has shared a “non-paper” prepared by the German Council delegation on article 13, ahead of the Council Copyright Attachés meeting that took place on Wednesday. In this paper Germany proposes to mitigate the negative effects of art. 13 by 1) exempting platforms with a turnover of up to 20 Mio. Euros per year from the obligations imposed by art. 13., 2) exempting platforms from liability in certain situations (e.g. if they made best efforts to obtain an authorization from the rightsholders), and 3) introducing a mandatory EU-wide user-generated content exception to copyright, subject to the payment of a fair remuneration to the rightsholders.

A Christmas tale

It is clear that there is a social legitimacy problem with a law proposal when, in every household visited during the Christmas holidays, someone starts talking about it. Children as young as eleven, teenagers and parents all knew about the existence of an infamous law proposal, which they referred to as “Article 13”. The familiarity with which they pronounced the number of the article was such that an undiscerning observer would believe they had been closely following the copyright reform and had actually read the European Commission’s proposal on upload filters.

Sure enough the children and the teenagers had not read the legal provision, neither had their parents. Their knowledge was based on the Youtube videos on art. 13 produced by their favourite Youtubers and/or on the newspaper articles that (finally) had started reporting on the issue, after those videos had become viral (one has now close to 5 million views).

This was the rule for every household, except one, where one of the parents – let’s call him a software and platforms entrepreneur – had not only read the proposal, but could easily point out the flaws on the lawmakers reasoning. Continue reading

yes. i am lonesome tonight.

Screenshot of video Licentie

yes. i am lonesome tonight. is a video by visual artist and performer Daniel Pinheiro, and probably one of the most intelligent uses of a pre-existing work that you’ll see on social media platforms today and tomorrow. Not the day after, because copyright infringement will soon prompt its removal.

You see, some of the works created by Daniel Pinheiro rely heavily on copyrighted works that do not belong to him. yes. i am lonesome tonight. consists of a black screen in which the words “yes”, “i did”, “i’m sorry” and “i didn’t” appear as answers to the questions posed by Elvis Presley in the song “Are you lonesome tonight”, composed by Lou Handman and Roy Turk. Elvis sings “Are you lonesome tonight” and Daniel whispers “Yes”. And so it goes:

Do you miss me tonight?

Yes.

Are you sorry we drifted apart?

Yes.

Could fair use save the lonely artist?

Daniel’s intervention is minimal, from a quantitative point of view, and he uses the source work in its entirety, which would weigh against fair use, in countries where fair use exists. Yet I doubt any art curator or critic would not render it as a new and unexpected use of Elvis’ musical performance. In other words, the transformative character of yes. i am lonesome tonight. could perhaps be enough to consider this Visual-Art work a fair use, even when all the remaining statutory factors (such as the amount of the source work used) would traditionally weigh against fair use. Continue reading

The daily impact of Copyright

hfc headerLicentie

Last weekend Communia participated in Mozfest 2018 with a drop-in session on how copyright affects our daily lives. While the ongoing EU copyright reform will shape internet and users rights for ages, not all users are well aware of how this will impact them and the way they use the internet. In our session ‘Human faces of copyright’ we organised a number of activities to show how the reform will influence our daily internet experiences, the way we share and create.

The Mozfest community includes people with a wide variety of expertise and backgrounds. Not everybody might know the ins and outs of copyright (reform), but once you start talking about the challenges of copyright, most can quickly relate it to their own work and experiences.

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UNESCO recognizes the importance of Exceptions and Limitations

La liberté guidant le peuple
Moving ahead
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OERs can be used to create inclusive and equitable education and to promote lifelong learning opportunities for all. They are an important factor that contributes to the improvement of educational opportunities.

However, while the special impact of OER is clear, often little attention is given to the issue of educational exceptions to copyright. Copyright frameworks that lack such exceptions can be an unjust obstacle for educators, and in particular can adversely affect the creation and use of OERs. Last year, we participated in the 2nd World OER Congress with the aim to raise awareness about educational exceptions as complementary means for achieving the goals of Open Education. The Ljubljana OER Action Plan, adopted by UNESCO members at the Congress, then, did not include actions related to copyright reform. Fortunately, this has now changed.

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EU copyright reform grinds into trilogue negotiations

Oordeel van Salomo
Secret judgment of EU copyright reform
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Last month the notorious EU Parliament vote approved almost all of the worst measures of the proposed Directive on Copyright in the Digital Single Market. It was a significant setback for user rights and the open internet.

Recap: 12th September Parliament vote

The Parliament voted in favor of Article 13, which even though it didn’t mention explicitly, would in practice force online platforms that host significant amounts of user-uploaded works to filter all content for copyrighted materials and prevent the upload of those works unless a license has been agreed to. If the platforms don’t do this, they would be liable for copyright infringements of their users.

They approved Article 11, which gifts a new copyright-like right to press publishers that will allow them to control how we access and reference press publications and news stories online.

The text and data mining provisions of Article 3 pretty much stayed the same, with a mandatory exception carrying through, but only one which can be taken advantage of by not-for-profit research organisations, and only for the more limited scope of scientific research. An optional addendum would permit an expanded exception applicable to all, but only if the rights holders in the underlying works don’t object to it, or arrange their own licensing requirements.

Article 4, the copyright exception for education applying to digital and cross-border teaching activities, while being seriously improved over the Commission version, still contains the fatal flaw that the mandatory exception can be essentially ignored if there is appropriately licensed content made available in a Member State.

To add insult to injury, the Parliament doubled down on their rights giveaway bonanza, approving Article 12a to grant sports events organizers to prohibit anyone from sharing photos or other recordings of sports events. And the new Article 13b requires that image search engines to obtain licenses for even the smallest preview images that they display as search results.

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