We are attending the 42nd session of the WIPO Standing Committee on Copyright and Related Rights (SCCR) in Geneva. Today, the Committee is discussing the issue of limitations and exceptions for educational and research institutions and for persons with other disabilities (Agenda Item 8) and the following statement was delivered on behalf of COMMUNIA:
It will not be easy to convince your families, friends, neighbours that policymakers from across the world should spend time discussing how to improve copyright exceptions.
There is absolutely no doubt that the restrictions copyright laws pose on access to knowledge and information condition the right to education and the right to research, and that educational and research exceptions would benefit society as a whole. That is what will determine whether teachers can show a short news report during live-streamed online classes, whether researchers can conduct medical research or track desinformation online.
Yet, the fact that copyright laws are hard to understand will be an obstacle to reforming copyright laws at national level. Therefore, when Global North delegations claim that each one of you can go back to your countries and introduce exceptions that work for education and research in the 21st Century, we say: that is easier said than done.
Indeed, if you look at the national exceptions for education and research in the European Union, before the recent EU-wide copyright reform, you will see that not even the EU Member States were investing time in solving these issues if they had not been forced to do so through a binding regional instrument.
It should also be said that the fact that copyright exceptions are now outdated only in the Global South does not make this issue less problematic for the Global North. Institutions in Europe and North America engage in cross-border education and research activities outside of their regions on a regular basis. Think about EU distance education programmes attended by students located in Latin America or international research programmes involving North American and Asian researchers. It is clear that the lack of the same minimum set of rights across the world prevents these cross-border activities from taking place, affecting both the North and the South.
We understand that this Committee is not ready to make a decision on how to positively affect copyright frameworks to actually protect the right to education and research. At the same time, this Committee has been discussing this agenda item for nearly 15 years.
We believe that it is fair to say that the work undertaken by the Committee so far has not had much impact on the copyright provisions that frame how educators and researchers can have access to knowledge and information. The African Group proposal could change the course of action to make the work of the Committee more useful. We, thus, urge this Committee to use its best efforts to reach an agreement on how to move forward towards more positive and impactful outcomes.
In our capacity as permanent observers of the WIPO Standing Committee on Copyright and Related Rights (SCCR), we are attending the 42nd session of the Committee, which is taking place in a hybrid format of in-person and online participation from 9 to 13 May 2022, in Geneva.
Today, the Committee is discussing the protection of broadcasting organizations and the following statement was delivered on behalf of COMMUNIA on this agenda item (Agenda Item 6):
Much of the content that broadcasters transmit plays an essential informational, cultural and educational role in our society. Radio and television programs and archives are fundamental to have access to knowledge and information. They are sources of scientific research and are also used as educational materials. We recall that radio and TV-based remote learning have re-emerged in the past years, in response to the pandemic.
Therefore it is essential that educators and researchers have broad and immediate access to broadcast content.
Although the scope of the draft treaty has been reduced, the need for robust limitations and exceptions remains, when legal protection of broadcasters is shaped in the form of exclusive rights.
The problem is that the draft text only says that countries “may” extend the same exceptions that exist for copyright, but, obviously, countries can choose not to do this.
This is more restrictive than the Berne Convention, which has mandatory exceptions for news of the day and quotations, and permissive exceptions for educational and other uses. This may lead to the surprising result that broadcasts are subjected to fewer exceptions than the underlying copyrighted works.
A treaty that creates an additional layer of rights needs to also mandate the corresponding exceptions. Otherwise it ignores the societal and cultural needs related with access and reuse of broadcasts, failing the society as whole.
Yesterday, China blocked the ad-hoc accreditation of Wikimedia chapters of France, Germany, Italy, Mexico, Sweden, and Switzerland as official observers to the Standing Committee on Copyright and Related Rights (SCCR) of the World Intellectual Property Organization (WIPO). Previously, China had rejected the Wikimedia’s Foundation application to observer status to this UN agency.
WIPO SCCR discussions where norm setting in copyright is concerned are of utmost importance to access to knowledge organizations, and observer status is a necessary condition for the six Wikimedia chapters to participate in such discussions. Not admitting the chapters as observers is unacceptable and runs counter to established practice and criteria for admission of observers at WIPO.
China opposed the applications, suggesting that they are subsidiaries of Wikimedia Foundation, whose projects violate the ‘One China’ Policy. China’s position was implicitly supported by Bolivia, Iran, Nicaragua, Russia, Venezuela, which stressed the need for consensus to approve the chapters’ applications.
On the 28th of April, we hosted the second COMMUNIA Salon of 2022 to discuss the implications of the CJEU judgment in Case C-401/19, which rejected the request of the Polish government to annul Article 17 and confirmed that this provision can be reconciled with the right to freedom of expression provided that certain users rights safeguards are in place.
The Salon started with João Pedro Quintais (Assistant Professor at the Institute for Information Law (IViR), University of Amsterdam), who presented an overview of the case and the three main takeaways of the judgment, according to his preliminary reading of the judgment. First, the Court clarified that Article 17 follows a normative hierarchy, where the obligation of result to protect user rights or freedoms takes precedence over the obligations of best efforts that exist for preventive measures. Secondly, the ruling makes it clear that ex-post procedural safeguards are insufficient to take care of overblocking; ex-ante safeguards are also required to protect user rights or freedoms. Finally, with regards to filtering measures, it appears that it will be difficult to argue that the judgment leads to a conclusion that is different from the AG Opinion, according to which only manifestly infringing content can be blocked at upload.
Today, the Court of Justice of the European Union issued its long awaited judgement on the compliance of the new liability regime established by Article 17 of the DSM Directive with fundamental rights. Rejecting the request of the Polish government to annul Article 17(4)(b) and the last half sentence of subparagraph (c), the Court confirmed that Article 17 can be reconciled with the right to freedom of expression because the article also provides ex-ante and ex-post safeguards to users rights that limit its impact on the right to freedom of expression and information.
Article 17 contains sufficient safeguards to minimise the impact of upload filters on fundamental freedoms
According to the CJEU, 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 online 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.
The Court held that the risks that the use of upload filters entails for the right to freedom of expression and information of users of sharing platforms have been sufficiently addressed by the EU legislator, which laid down sufficient safeguards in Article 17(7), (8) and (9) to protect those rights:
online sharing providers have an obligation of result to not preventively block lawful content (Article 17(7));
those providers are only obliged to detect and block content in on the basis of relevant and necessary information provided by rightholders and cannot be required to block content which, in order to be found unlawful, would require an independent assessment of the content by them (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, users have at their disposal a complaint and redress mechanism as well as out-of-court mechanisms (Article 17(9)).
On the 26th of April, the European Court of Justice will hand down its judgement in Case C-401/19 — the Polish challenge of the fundamental rights compliance of Article 17 of the Copyright in the Digital Single Market Directive, which was adopted nearly 3 years ago in April 2019.
On the 28th of April, from 1500h to 1630 CET, we are hosting a virtual COMMUNIA salon to discuss the implications of this highly anticipated judgement and what it means for the national implementations of Article 17.
COMMUNIA and Wikimedia Deutschland held a panel discussion on February 15th to discuss whether the new mandatory exceptions in the EU Copyright Directive could serve as a model to solve some of the most pressing international-level problems around education and research.
The event started with Marco Giorello, the Head of the Copyright Unit at DG CONNECT of the European Commission, explaining the reasons for introducing mandatory exceptions for education and research purposes at the EU level (from min. 8:55 to min. 20:50). Marco pointed out that both research and education were at the forefront of the Commissions’ discussions on the modernization of the copyright system. The need for introducing mandatory exceptions for those activities became apparent after conducting a study of the national implementations of the optional EU-level education and research exceptions. Not all Member States had implemented the exceptions of the InfoSoc Directive. Those who had implemented them had done it in a very different way, and in a number of cases the national exceptions were clearly not applicable to digital and online uses.
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.