Today, on the verge of the implementation deadline for the CDSM directive, the European Commission has published its long awaited guidance on the application of Article 17 of the Directive, in the form of a Communication from the Commission to the European Parliament and the Council. The structure of the final guidance largely follows the outline of the Commission’s targeted consultation on the guidance from July 2020, but there are significant changes to the substance of the final document. The final version of the guidance makes it clear that the European Commission has completely undermined the position it held before the CJEU, that Article 17 is compatible with fundamental rights as long as only manifestly infringing content can be blocked.
In the final guidance, the Commission maintains that it is “not enough for the transposition and application of Article 17(7) to restore legitimate content ex post under Article 17(9), once it has been removed or disabled” and argues that only manifestly infringing content should be blocked automatically, but these “principles” are included in name only. By introducing the ability for rightholders to “earmark” any content that has the potential to ”cause significant economic harm”, the guidance allows rightholders to easily override these principles, whenever they see fit, and to force platforms to automatically block user uploads even if they are not manifestly infringing.
In the remainder of this post we will examine these last minute changes to the guidance in more detail. Before we do that, we will briefly recall the key problem that the guidance was supposed to resolve and the principles that underpinned previous versions of the guidance.
As we approach our 10th anniversary, new ideas as to what role we want COMMUNIA to play in the coming decade are starting to take form. After spending a decade trying to improve policy and legislative processes, we can very much see COMMUNIA embracing other tools of intervention to expand the public domain and strengthen access to knowledge and culture. One of such tools, alongside our advocacy work, is strategic litigation.
Judicial developments are much needed to provide further clarity as to the scope of users rights in Europe. There’s still legal uncertainty as to whether certain public interest activities are permitted under existing exceptions and limitations to copyright, how users can assert their rights on online platforms, whether (and how) users can enforce their rights against contracts and technological measures, and what’s the status of the public domain. The implementation of the new Copyright Directive, particularly Article 17, will bring further interpretation challenges.
Whether and how much Communia will be able to engage in strategic litigation in the next decade is still to be determined, but we decided to take the first steps in this realm, by supporting a court proceeding that is aimed at challenging an abusive practice that is eroding the public domain: that of claiming exclusive rights overs tridimensional digitizations of public domain artworks.
The case against Musée Rodin
In 2018, artist and open access activist Cosmo Wenman filed a freedom of information request with the Musée Rodin in Paris to access the 3D scans of Auguste Rodin’s sculptures (all of which are in the public domain). When the museum refused to comply, Mr. Wenman appealed to the French Commission on Access to Administrative Documents (CADA).
In response the CADA confirmed that these 3D scans in question are administrative documents and are subject to public disclosure, under freedom of information laws, and therefore the Musée Rodin is required to give public access to them.
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 🥳
This year, Communia joined a project to study and promote changes in international copyright law to ensure equity in the production of and access to research. We are now looking for partners to work with us in promoting effective change in the political discourse in the European Union towards the adoption of an international legal framework that protects legitimate access to knowledge.
In particular we are looking for partners that have the capacity to develop a national-level strategy and plan of activities to advocate for the right to research in international copyright law, in coordination with a global civil society coalition including libraries, archives, museums, researchers, educators, and digital rights organizations.
Read the full Call for Proposals here.
Proposals are being accepted through this online form. The deadline for applications is June 14, 2021.
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.
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.
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.
On April 20, 2021, the Senate of the Italian Republic gave its final approval to the Law which authorises the transposition of the 2019 Copyright in the Digital Single Market (CDSM) Directive in the Italian Law. In this Guest Article Deborah De Angelis (Creative Commons Italy) and Federico Leva (Wikimedia Italy) recap the Italian process of transposition so far, outlining the next steps of the procedure and taking a closer look at the implementation of the public domain provisions (Article 14) of the Directive.
What has happened so far?
The freshly approved European Delegation Law is a legislative act that authorises and guides the Italian Government to transpose EU Directives and framework decisions into the Italian National Law. Such a Delegation Law must be proposed by the Government at the beginning of each year, with the approval of the European Delegation Law by both the Senate of the Republic and the Chamber of Deputies often taking a long time and occasionally exceeding a year.
Once the Delegation Law is approved, the Government can issue the related Legislative Decrees in order to change the existing laws and adapt them to the European rules. Since the approval of the delegation law and until the adoption of the Legislative Decrees, no change in law actually happens. Such Legislative Decrees are very quick to set into motion, as the Parliament has a few days only to object them; however, sometimes it happens that the Government waits a long time before issuing the Decrees, or it even neglects to issue any of them, forcing the Parliament to reiterate the Delegation Law a year later.
Between April 28, 2020 and June 8, 2020, various stakeholder organizations were listened by the 14th Standing Committee (European Union Policies) during a series of informal hearings, and the related documents and proposals were published by the Senate.
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).
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.