For anyone interested in the discussions about automated content filtering, Christmas came early this week: On Monday YouTube published the first edition of its Copyright Transparency Report. The report that covers copyright enforcement actions on the platform for the period from January to June of this year provides much needed insights into how YouTube’s various copyright management systems function. In publishing this report YouTube is finally bringing some empirical evidence to the discussion about the automated content filtering that is being fuelled by the ongoing implementation of Article 17 of the Copyright in the Digital Single Market (CDSM) directive. In this context it is worth pointing out that the report published on Monday covers a period before the most national implementation of Article 17, which means that the numbers presented in the report reflect the status quo ante and can thus serve as a baseline for assessing the actual impact of Article 17 going forward.
Over-blocking is real
So what can we learn from this first copyright transparency report? The overall take-away is that automated content removal is a big numbers game. In total YouTube processed 729.3 million copyright actions in the first half of 2021 of which the vast majority (99%) were processed via Content ID (as opposed to other tools, such as Copyright Match Tool and the Webform). And while YouTube claims that ContentID is much more accurate and less prone to abuse than its other systems ContentID has still received 3.7 million disputes from uploaders claiming that the actions (these can be blocks/removals but also demonetisation actions) taken against them are unjustified. 60% of these disputes have ultimately been decided in favour of the uploaders, which means that in the first half of 2021 Content ID has generated at least a 2.2 million unjustified copyright actions against its users on behalf of rightholders—The real number is likely to be much higher since research into notice and take down systems suggests that only a small fraction of users whose lawful uploads are removed make use of a complaint procedure that is available to them. In other words, over-enforcement (both unjustified blocking and unjustified demonetisation) is a very real issue that affects the rights of a substantial number of uploaders on a regular basis.
Earlier this week, COMMUNIA was invited to participate in a high-level roundtable on access to and availability of audiovisual content across the EU hosted by Commissioner Thierry Breton. This round table which took place today marks the beginning of a stakeholder dialogue with the audiovisual industry to agree on concrete steps to improve the access to and availability of audiovisual content across borders in the EU. This stakeholder dialogue will take place in the coming months with meetings scheduled for 8 and 22 November and 10 December.
We have accepted this invitation in order to ensure that the perspective of users/consumers seeking access to audiovisual works will be represented in the discussions that should lead to the end of unjustified geo-blocking of audiovisual content in the EU. We have outlined our initial position in the opening statement delivered by Paul Keller during today’s high level round table:
When the Austrian government published its implementation proposal for Article 17 in December 2020 we called it “the most realistic implementation proposal yet“. On the 3rd of September the Austrian Ministry of Justice published a draft version of the implementation law covering all provisions of the CDSM directive, which includes revised provisions for implementing Article 17. And while this revised proposal maintains much of the approach contained in the previous draft, it contains some unfortunate regressions that undermine the user rights protections contained in the original draft.
Article 17: A combination of the German implementation and the worst ideas from the Commission guidance
One of the strongest elements of the original implementation proposal was that it combined some of the approaches to safeguarding user rights and to preventing overblocking first put forward by the German Ministry of Justice in its implementation proposals with an attempt to stick as closely as possible to the text of the directive. Where the German implementation proposal (which in the meantime has become law) introduced the provisions implementing Article 17 in an entirely new act, the Austrian proposal includes them into the existing copyright act. The new proposal both maintains this approach and continues to follow the lead of the German legislator when it comes to the user rights safeguards. Unfortunately it combines this approach with introducing some of the worst elements of the Article 17 implementation guidance issued by the Commission earlier this year, the so-called “earmarking” provisions for commercially valuable works that allow right-holders to opt-out of most user rights protections.
Today, 55 civil society organizations, including COMMUNIA, sent a letter to the Member States of the World Intellectual Property Organization to express their concerns with regard to the outcome of the sixty-second series of meetings of the Assemblies of the Member States of the World Intellectual Property Organization, not to admit the Wikimedia Foundation as an observer to that organization.
The signatories of the letter recall that the WIPO discussions, where norm setting in copyright is concerned, are of utmost important to access to knowledge organisations:
“Given the key role of WIPO in shaping normative and practical work around copyright that impacts how researchers, educators and the public at large access and use knowledge, not admitting the Foundation as an observer would be unacceptable and it would run counter with the established practice on criteria for admission of observers at WIPO.”
This is the second time the application of the Wikimedia Foundation for observer status at WIPO was not approved. China was again the only country to reject the Foundation’s application, suggesting that the Wikimedia Foundation was spreading misinformation via the Wikimedia Taiwan chapter. The United States expressed their support for the Foundation’s application, calling for a transparent process, accessible for civil society organizations. The regional coordinator for Group B (the group of industrialized countries at WIPO, which includes many European Union member states) followed suit, underlining that the Foundation’ application had complied with the admission criteria.
Today Open Future and Gesellschaft für Freiheitsrechte are publishing a white-paper, authored by Felix Reda (GFF) and Paul Keller (Open Future/COMMUNIA) that proposes to build a public repository of Public Domain and openly licensed works. While the idea of creating repositories of Public Domain and openly licensed works is not new as such, the white paper proposes to use Article 17 of the EU copyright directive as leverage to create such a repository. Aside from its very problematic blocking and liability provisions, which we have criticized since the EU copyright directive’s inception, Article 17 also requires certain providers of online content sharing platforms to ensure that the copyright filters that they deploy “shall not result in the prevention of the availability of works or other subject matter uploaded by users, which do not infringe copyright and related rights”. This provision was added later in the negotiations to address widespread criticism from civil society and academia.
As a result these platforms need to prevent uploads containing Public Domain or openly licensed works from being blocked or removed as a result of copyright claims from (alleged) rightholders or face sanctions. For example, the German implementation of Article 17 explicitly requires that “after an abusive blocking request in respect of works in the public domain or works whose use by anyone is authorised free of charge, service providers must ensure, to the best of their ability […], that these works are not blocked again”.
This week will see the 2021 edition of the Creative Commons Global Summit 2021. This year’s CC summit celebrates the 20th anniversary of Creative Commons in an all virtual format that takes place over the whole week. As in previous years the CC summit . This is an invaluable chance for the Creative Commons community to meet , collaborate and exchange knowledge and to strengthen our activism for better copyright rules and open access to knowledge and culture.
As in previous years COMMUNIA will contribute to a number of sessions at the summit which has turned into one of the prime venues for driving the discussion about global copyright reform forwards. Below we have compiled a list of sessions that are particularly relevant to our area(s) of interest and that will see participation from COMMUNIA members:
On Wednesday the 21st of June we held a special lunch salon on Advocate General Saugmandsgaard Øe’s Opinion in Case C-401/19, the Polish request to annul Article 17 of the CDSM directive.
Moderated by Teresa Nobre, the salon started with Paul Keller (COMMUNIA/Open Future) assessing the opinion in the context of the Commission’s stakeholder dialogue and the ongoing national implementations (from min. 03:11 to min. 12:35 in the recording). While the opinion doesn’t provide for Article 17’s annulment, it provides important clarifications on users rights safeguards against automated, preventive content blocking systems adopted by sharing services providers.
Then Martin Husovec (London School of Economics) took a closer look at the overall strategy of the AG’s opinion while dwelling on its weaknesses and strengths (from min. 14:53 to min. 25.50 in the recordings). He focused on what he described as “AG Øe’s re-interpretation of Article 17” and further analysed the safeguard mechanisms provided in the opinion.
The final presentation came from Felix Reda (GFF) (from min. 27:50 to min. 40:00 in the recordings) who expressed her disappointment to the fact that AG Øe did not recommend the to reject Article 17. She went on to identify a number of inconsistencies in the parts of the opinion that attempt to reconcile the use of upload filters with the ban on general monitoring obligations. .
The discussion was followed by a Q&A session with the participants (from min. 42:20 onwards).
Last week, Advocate General Saugmandsgaard Øe at the CJEU issued his opinion in Case C-401/19, the Polish request to annul Article 17 of the CDSM directive. According to his Opinion, the preventive measures to monitor and block users’ uploads envisioned by Article 17(4) constitute a limitation on the exercise of the right to freedom of expression and information of the users of sharing services, but such a limitation is compatible with Article 11 of the Charter of Fundamental Rights of the European Union, since all the conditions laid down in Article 52(1) of the Charter are satisfied.
In particular, the Advocate General found that the new liability regime established by Article 17(4) respects the proportionality requirement – despite entailing significant risks for freedom of expression – as it is accompanied by sufficient safeguards to minimise those risks:
sharing service providers are not authorised to preventively block all content which reproduces the copyright-protected content identified by rightholders, including lawful content (Article 17(7));
those providers are obliged to detect and block only content the unlawfulness of which seems manifest in the light of the ‘relevant and necessary’ information provided by the rightholders (Article 17(8));
additionally, and as final safeguard for situations where, despite the obligation in Article 17(7), those providers nevertheless block such legitimate content mistakenly, users have at their disposal a complaint and redress mechanism as well as out-of-court mechanisms (Article 17(9)).
On Wednesday, the 21st of July at 1300 CEST, we will be organising a special lunch edition of our COMMUNIA salon. This time we will analyze the Opinion that CJEU Advocate General Saugmandsgaard Øe issued on Case C-401/19, the Polish request to annul Article 17 of the CDSM directive.
His Opinion finds that Article 17 is compatible with the freedom of expression and information guaranteed in Article 11 of the Charter of Fundamental Rights of the European Union and consequently advises the Court to reject the annulment request. While the annulment of problematic provisions would be preferable, the opinion provides important clarification on user rights safeguards.