Article 17 stakeholder dialogue (day 3): Filters do not meet the requirements of the directive

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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

Academic statement on safeguarding user freedoms in implementing Article 17

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51 academics say: if in doubt - don't filter
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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 dialogueContinue reading

Article 17 stakeholder dialogue (day 2): Filters, not licenses!

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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 stakeholder dialogue (day 1): Same old, same old

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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

Finally! The text of Poland’s Legal Challenge of Copyright Directive was published

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Does art. 17 violate the right to freedom of expression?
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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

The Copyright Directive challenged in the CJEU by Polish government

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An independent court will assess the Directive
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Copyright not only regulates the interests of creators and intermediaries, but also applies to users’ rights. This was one of our main arguments in the discussion on Article 17 of the new copyright directive, which was often disregarded by our opponents. In our opinion Article 17 is not well-balanced and creates threats to freedom of expression. Such an assessment is shared by others: the UN Special Rapporteur on Freedom of Expression, non-governmental organizations dealing with digital rights, and a significant part of the academy. Now the very same objections will be evaluated by Court of Justice of the European Union.

Last week, the Government of the Republic of Poland filed a challenge to the new Directive on Copyright in the Digital Single Market, specifically Articles 17(4b) and 17(4c). The Minister of Culture and National Heritage explained:

“in our opinion this mechanism introduces solutions with preventive censorship features. Such censorship is forbidden by both the Polish Constitution and EU law – the Charter of Fundamental Rights guarantees freedom of expression.”

Interestingly, by filing the charge, the Polish government fulfilled a political promise made during the recent electoral campaign. At that time, Polish Prime Minister Mateusz Morawiecki tweeted that the new law is “a disproportionate measure that fuels censorship and threatens freedom of expression.”Continue reading

Open Letter: Implementation Guidance on Article 17 Must Include Public Interest Stakeholders

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On Friday the Directive on Copyright in the Digital Single Market was published in the Official Journal of the European Union, formally kicking off the implementation phase in which the Directive will be transposed into the national laws of the EU Member States. EU Member States will have until 7 June 2021 to adopt the provisions laid down in the directive into their respective copyright laws.

Today Communia and over 40 organisations sent an open letter to the European Commission calling for an inclusive stakeholder dialogue that incorporates the views of human rights, digital rights, and access to knowledge organisations. The letter was organised by the Civil Liberties Union for Europe (Liberties). It focuses on Article 17 (formerly Article 13), the sweeping provision that alters the liability regime for online platforms by requiring licenses for all user generated uploads, and would lead to platforms having to install content filters lest they become liable for copyright infringement for works that aren’t able to be licensed. The adoption of Article 17 will put fundamental freedoms at risk and set a dangerous precedent for user rights, so it’s absolutely critical that in the implementation the article is transposed with care to protect freedom of expression. From our open letter:

Broad and inclusive participation is crucial for ensuring that the national implementations of Article 17 and the day-to-day cooperation between online content-sharing service providers and rightholders respects the Charter of Fundamental Rights by safeguarding citizens’ and creators’ freedom of expression and information, whilst also protecting their privacy. These should be the guiding principles for a harmonized implementation of Article 17 throughout the Digital Single Market.

Over the entirety of the 30-month reform process, Communia has been advocating for changes to improve the situation for users rights and produce a more balanced copyright system. Article 17 sets platforms up for failure because it is impossible to meet the obligations they have under the mitigation measures and to safeguard user rights at the same time. That’s why it’s important that the stakeholder dialogue and consultations on implementation listen closely to the input from human rights, digital rights, and knowledge communities in order to protect user rights and freedom of expression.

DSM directive adopted – implementation in Member States can still make a difference

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Two year implementation period starts now
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Earlier this week, after almost exactly 30 months of legislative wrangling, the EU Member States approved the final compromise of the Directive on Copyright in the Digital Single Market. It’s the same text that was approved by the European Parliament at the end of March. This means that the Directive will become law as soon as it is published in the Official Journal of the European Union. Judged against our own ideas about a modern EU copyright framework that facilitates access to cultural and information, strengthens user rights and reduces unnecessary copyright infringement, the outcome of EU copyright reform process is a big disappointment. The directive expands the scope of copyright and instead of harmonising copyright rules across the EU member states, it contains measures that will further fragment and complicate the EU copyright framework. Instead of strengthening public interest exceptions to copyright, the directive relies on voluntary licensing by rightholders, giving them the ability to block users’ access.

As a result the final directive does not live up to the “Digital Single Market” label that it carries in its title. The adopted text does very little to harmonise an already complex set of rules among the Member States. Instead, the directive creates additional rules to the system that have been designed to further the (perceived) interests for specific classes of rightholders—most notably the music industry and press publishers. Once the directive has been implemented in the Member States, the EU copyright system will likely be more complex, and thus more difficult and costly to navigate for users and European businesses.

In this regard the provisions of Article 17 (formerly Article 13) remain the most problematic in the entire directive. The article is a legislative monstrosity that will most likely achieve the opposite of what it was intended to accomplish. Instead of establishing clear rules that require commercial content sharing platforms to adequately remunerate the creators of the works that they distribute, it will impose substantial regulatory burdens and create legal uncertainties for years to come. The most likely benefactors of this outcome will be large rightholders and the incumbent dominant platforms. The existing intermediaries within the creative value chain will have the means to navigate the uncertainties and conclude complex licensing arrangements, but users and independent creators at the edges of these value chains will suffer the consequences: They will be presented with fewer distribution platforms to choose from, and they will have less freedom of creative expression.

Implementation can make a difference

With the directive formally adopted by both the Parliament and Council, the fight for a better EU copyright enters into a new phase. The EU Member States will soon have two years to implement the rules established by the directive into their national copyright laws. While such implementations will have to include all the problematic aspects of the directive, there is some room for meaningful improvements, and some measures can be taken to mitigate the worst provisions of the directive. Continue reading

The new Copyright Directive is a lost opportunity for Europe

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and shows lack of respect for user rights
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Today, after a 30-month long legislative procedure, the European Parliament voted on the Directive on Copyright in the Digital Single Market. Members of the Parliament approved the Directive, with 348 voting in favor and 274 voting against, and 36 abstaining.

The Directive is the most important European regulation of the digital sphere in the last several years. It will define the shape of copyright in Europe for years to come — and have spillover effects for regulation around the globe. We believe that the approved directive will not meet the goal of providing a modern framework that balances the interests of rightsholder and users, protects human rights and enables creativity and innovation to flourish. Instead, it is a biased regulation that supports one business sector, at the cost of European citizens.

In the last two and a half years, and especially since last June, we faced an extremely heated debate and intense legislative process. During this time, together with a broad coalition of activists, experts and organisations, we attempted to remove (or improve) its most controversial parts. In the last weeks, we supported an effort to amend the directive during the plenary, in a last attempt to remove the most detrimental provision — Article 13. Unfortunately, the European Parliament rejected a motion to vote on amendments to the Directive, with 312 MEPs voting in favor, and 317 voting against. This motion would have opened the door to remove Article 13 but keep the rest of the directive intact. It failed.

The Directive was therefore approved, with all the controversial elements that we have been criticising: content filters introduced by Article 13, new rights for publishers introduced by Article 11, and a mechanism for overriding copyright exceptions for education by private agreements introduced by Article 4/2.

European parliamentarians, together with the Commission and the governments of the Member States have given a strong signal of support to the entertainment industries and their incumbent players — at a dire cost to internet users and freedom of expression. We believe that it is an unbalanced approach that will have severe repercussions. These legal provisions will not only cost millions to small and medium sized European platforms, but most importantly put fundamental freedoms at risk and set dangerous precedents for user rights.

Say YES to copyright and NO to Article 13

Say YES to copyright and NO to Article 13Licentie

Earlier today, on the eve of tomorrow’s vote, we distributed 750 copies a journal titled “Say YES to copyright and NO to Article 13” to the offices of the MEPs in Strasbourg. This is part of a last ditch effort by civil society organisations to prevent MEPs from approving a new copyright directive that includes the disastrous Article 13. You can download our journal here (pdf) and we are re-publishing the text of the editorial below.

Say YES to copyright and NO to Article 13

Article 13 of the proposed Copyright Directive will put even more control over European culture and knowledge into the hands of online monopolies. As organisations representing digital creators and knowledge workers, we urge you to reject this provision that will replace the rule of law with proprietary algorithms controlled by big tech companies.

It is high time that Europe adapts its copyright framework to meet the needs of the digital age. The proposed directive contains many measures that take steps in the right direction, such as improving the negotiation position of authors and performers, better safeguarding the public domain, and by allowing researchers and cultural heritage institutions to make better use the opportunities created by the digital environment.

In spite of widespread opposition from academics, internet users and millions of concerned citizens, the directive still contains provisions that will force most internet platforms to filter all content uploaded by their users to remove any copyrighted works flagged by rightsholders. This will cost European companies and new startups millions, and what’s worse, it won’t work. The idea that technology can reliably differentiate between legitimate and unauthorised uses of copyrighted material has been credibly disputed by experts across the spectrum. Putting the regulation of speech and creative expression in the hands of private corporations lacks public support.

  • Instead of taking the right step toward a Digital Single Market that works for all, a directive that includes Article 13 would sow even more legal uncertainties.
  • Instead of empowering European creators, it will entrench the position of dominant platforms.
  • Instead of balancing fundamental rights, it will weaken the law by shifting power towards algorithms and away from crucial users’ rights upholding freedom of expression.

We support the objective to ensure that creators are rewarded adequately for their creativity. Upload filters themselves will not achieve this objective. This directive needs to take the interests of all stakeholders into account, not only “big tech” and “big content”. Copyright should be a matter of social contract that upholds the public interest, not of secret algorithms controlled by private actors. We therefore ask you to reject the text of the directive as long as it includes Article 13.