Last month, we held the first edition of our Copyright Directive Webinars, aimed at explaining the different provisions of the new Copyright Directive and making suggestions on what to advocate for during the implementation process of those provisions at a national level, to expand and strengthen user rights. We are now releasing the presentations and video recordings of the webinars.
The subject of the first webinar was the Press Publishers’ Right. Dimitar Dimitrov (Wikimedia) explained Article 15 in detail and presented our proposal for implementing it at the national level (check his presentation here).
The second webinar was dedicated to the Text and Data Mining and Education Exceptions. Benjamin White (LIBER) analyzed Articles 3 and 4 (check his presentation here), and Teresa Nobre (COMMUNIA) covered Article 5 (check her presentation here). Continue reading
Last week, Germany’s Ministry of Justice unveiled its proposal to implement Article 17 of the new Copyright Directive. In this post, we will look into the draft implementation in more detail, to understand how this proposal aims to protect user rights by:
- Making it easier for platforms to comply with the “best efforts” obligation to obtain authorization to publish their users’ uploads;
- Introducing a new exception covering minor uses of copyrighted content, which works as a fallback mechanism in the absence of authorization;
- Allowing users to override blocking/removal actions, by pre-flagging lawful uses;
- Allowing lawful content to stay up until human review and pausing the liability of platforms until a decision has been made;
- Sanctioning abusive behaviour by platforms, rightholders and users.
Complying with the “best efforts” obligation to obtain authorization
Under Article 17, platforms are deemed to carry out a copyright-restricted act when they give public access to copyrighted content uploaded by their users and, as a consequence, they must make “best efforts” to obtain an authorization to perform such acts. That authorization can hypothetically be granted through various means:
- directly by the copyright owners via individual licensing agreements (as mentioned in Article 17(1) second para.,) or
- by collective management organizations via collective license agreements, or
- by operation of law, if the national lawmakers decide e.g. to turn this exclusive right into an exception or limitation to copyright subject to compensation.
The implementation proposals that we have seen so far in other countries have limited themselves to the traditional individual licensing mechanism. This is of course problematic because individual licenses alone cannot cover the countless protected materials in existence and user rights will be at greater risk if the platforms have to block content at upload than if they obtain authorization to have that content uploaded to their platforms.
Germany had stated, when the Directive was approved, that it would explore further legal mechanisms (e.g. exceptions and limitations and collective licenses) to grant those permissions to platforms. The draft text now published delivers on those promises and introduces some welcoming innovation.
The proposed text starts by saying that the platforms need to make “alle Anstrengungen” (“every effort”) to acquire those rights by contract. The use of the wording “every effort” shall not, however, be interpreted as meaning anything else other than “best efforts”, according to the explanatory memorandum. In fact such obligation is considered to be fulfilled when the platform accepts a licensing offer made by a rightholder or when licenses are available through a domestic collective management organization (§4/1). Such contractual offers or collective licenses must apply to works typically uploaded to the platform, comprise a representative repertoire, cover the territory of Germany, and enable the use on appropriate conditions (§4/2).
A new de minimis exception that applies to the acts of platforms and noncommercial users
When, despite making the above-mentioned effort, the platform was not able to obtain an authorization, the draft text provides a fallback mechanism: it partially turns the new exclusive right into a remunerated exception, which covers minor uses of copyrighted content (§6 and §7/2). Continue reading
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.
It speaks to the complexity of the discussion about Article 17 of the Copyright in the Digital Single Market directive that the new German implementation proposal is at the same time a broken promise and something that sets a positive example for the other Member States. The measures to implement Article 17 unveiled today as part of a wider proposal for implementing a second set of provisions of the directive (which we will discuss in a follow up post), do not manage to keep the earlier promise to avoid the use of upload filters and instead embrace their use within certain limits. This will almost certainly be a major point of political controversy within Germany.
But seen from the other 26 EU member states this broken promise will likely be overshadowed by the fact that the German government is setting an example for fully using the room for legislative discretion left by the directive to include a number of significant protections for users together with measures aimed at ensuring that individual creators directly benefit from the new provisions. In doing so the German implementation proposal is the first proposal that does not limit itself to (selectively) transposing the provisions of the directive into national law. As a result of this, the German implementation proposal is much closer to the legislative compromise struck by Article 17 than any of the other implementations that we have seen so far.
The implementation proposal (which represents the position of the Ministry of Justice and still needs to be endorsed by the government as a whole) proposes to implement Article 17 in a new law that is separate from the main Copyright Act. This new “Gesetz über die urheberrechtliche Verantwortlichkeit von Diensteanbietern für das Teilen von Online-Inhalten” (UrhDaG) follows the overall logic of Article 17 in making OCSSPs first liable for infringements by their users and then requiring them to either license or take measures to prevent the availability of infringing works to limit their liability.
To ensure the balance of the resulting provision the proposal adds a number of provisions aimed at safeguarding the ability of users to freely share and receive information and for creators to be remunerated for such uses of their works. These measures include: Continue reading
Last week on Thursday we held the second virtual edition of our COMMUNIA Salon. This edition focussed on the role of flexible exceptions in the context of Article 17 of the Copyright in the Digital Single Market Directive and the role that a broad interpretation of the concept of pastiche can play in preserving users’ freedom of creative expression. If you have missed the event you can watch a recording of the presentations and the subsequent discussion here:
The salon was kicked off by Teresa Nobre who discussed the importance of flexible copyright exceptions and highlighted the recent developments in the jurisprudence of the CJEU that has gradually started to recognise exceptions as expressions of certain fundamental rights. In the following presentation Paul Keller discussed the tension between mandatory exceptions and de-facto mandatory filters in Article 17 and highlighted that the provisions dealing with exceptions remain at the center of the discussion in the Commission’s stakeholder dialogue on the implementation of Article 17.
In the second part of the event Prof. Martin Senftleben talked about Article 17, Pastiche and Money for Creators. As part of his presentation Prof. Senftleben reminded the audience about the original objective of Article 17 to make large online platforms pay for so-called “user generated content” in order to improve the income position of creators and other rightholders. According to Prof. Senftleben, the licensing based approach introduced by Article 17 will fail to achieve this objective since it inherently favours large rightholders who have the means to negotiate with large platforms. Article 17 as such does not ensure that individual creators benefit from any additional revenues secured by creative industry intermediaries. Continue reading
After the success of our first virtual COMMUNIA salon last month we will be holding a follow-up event on Thursday, the 18th of June, from 1530 to 1700h CET. This time we will be focussing on the role of the now mandatory exceptions and limitations for quotation, criticism, review, caricature, parody and pastiche in the context of the implementation of Article 17 of the DSM directive. We will pay special attention to the role of the pastiche exception and examine how a broad conception of pastiche can provide a legal basis for a wide range of transformative uses of protected works on online platforms.
In the context of the discussion on the implementation of Article 17, scholars have argued that the concept of pastiche (“a musical, literary, or artistic composition made up of selections from different works“) provides a legal basis for safeguarding transformative uses that are commonly referred to as User Generated Content. During the upcoming COMMUNIA salon we will explore this possibility and discuss how Member States can best make use of the room provided by the pastiche exception when implementing Article 17 of the DSM directive.
After introductory presentations by Teresa Nobre (on the importance of flexible exceptions to copyright) and Paul Keller (on the tension between filtering obligations and the obligation to safeguard users rights in the context of Article 17), we will be joined by Professor Martin Senftleben from the Institute for Information Law, who will focus on the role of the pastiche exception. Prof. Senftleben has recently published a paper on the role of the pastiche exception in the context of institutionalised algorithmic enforcement and is one of the co-authors of the European Copyright Society’s comment on Article 17 of the DSM directive, which recommends “cultivating the concept of pastiche” to ensure that Article 17 does not limit freedom of expression.
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.
As part of our implementation project we are tracking the national implementations of the DSM directive in the different EU member states and are working together with local advocates and civil society organisations to make sure that national implementations are as good as possible from the users and public interest perspectives. As part of this work we are also occasionally providing input into national legislative processes. Earlier this week we made a submission to the public consultation in Hungary and expressed concerns about shortcomings of the Dutch implementation law in a letter to the Dutch Parliament.
Hungary: The importance of the pastiche exception
Last month the Hungarian Ministry of Justice and the Hungarian Intellectual Property Office (HIPO) published a consultation proposal on the transposition of the DSm directive into Hungarian law.
Hungary is one of the EU member states that currently does not have an exception for parody, caricature or pastiche in their Copyright Act. Article 17(7) of the DSM directive requires all Member States to “ensure that users […] are able to rely” on exceptions or limitations authorising use “for the purpose of caricature, parody or pastiche”. Consequently Hungary must introduce such an exception as part of the implementation of the directive. The consultation proposal identified two different options to meet this requirement:
- an exception allowing “anyone to use any work for the purposes of (…) parody by evoking the original work and by expressing humour or mockery” (Option A), or
- an exception allowing “anyone to use any work for the purposes of (…) creating a parody, caricature or pastiche” (Option B).
In our submission to the consultation (Hungarian, English) we pointed out that Option A, by omitting caricature and parody, fails to properly implement the DSM directive and that therefore the Hungarian legislator should go with Option B. Option B, in line with our longstanding position on exceptions and limitations in the EU copyright framework, recommends to closely follow the language of the exception contained in Article 5(3)(k) of the Information Society Directive. By taking over the wording of the prototype exception and leaving the interpretation of the concepts of parody, caricature and pastiche to the courts, Option B takes full advantage of the policy space that is available to Member States and enables the harmonization of these concepts across the EU. This is especially important since in the context of Article 17, the concept of pastiche will likely become an important safeguard for the freedom of expression. Continue reading
The process of implementation of the new Copyright Directive is speeding up in various countries (see our Implementation Tracker). Therefore, COMMUNIA has decided to organize a series of webinars aimed at explaining the different provisions of the new Copyright Directive and making suggestions on what to advocate for during the implementation process of those provisions at the national level, to expand and strengthen user rights.
The Copyright Directive Webinars are aimed at local advocates and national policymakers and will be conducted by COMMUNIA members and experts that were involved in preparing our Implementation Guidelines.
We will hold four webinars of one hour each, as follows:
- 16/06 (Tuesday) – Press Publishers’ Right (Art. 15): Dimitar Dimitrov
- 17/06 (Wednesday) – Text and Data Mining and Education Exceptions (Arts. 3-5): Benjamin White and Teresa Nobre
- 23/06 (Tuesday) – Use of Content by Online Platforms (Art. 17): Teresa Nobre and Paul Keller
- 24/06 (Wednesday) – Cultural Heritage Provisions (Arts. 6, 8-11, 14): Stephen Wyber, Ariadna Matas and Paul Keller
All webinars will take place from 10.00am to 11.00am CET. You can register for the webinars of your choice here. Remember to register for the seminar up to 24 hours before it starts. We have a limit of 30 participants at each seminar, so please don’t register if you don’t plan to show up. The access info will be shared with those who signed up. Continue reading
Last week Monday, on the first anniversary of the entry into force of the Copyright in the DSM Directive, we held the first virtual edition of our COMMUNIA Salon. During the event we presented an overview of the implementation status in the EU member states, zoomed in (sic!) on various legislative proposals to implement Articles 15 and 17 of the Directive and discussed ways to challenge parts of the Directive via the legal system. If you have missed the event you can watch a recording of the presentations and the subsequent discussion here:
The event was kicked off by Teresa Nobre who launched the COMMUNIA implementation tracker and presented an overview of the implementation in the EU member states. While France has already implemented the press publishers right, the majority of EU member states are still in various stages of consultation. One year after the entry into force of the Directive, only Belgium, Croatia, France, Germany, Hungary and the Netherlands have put forward legislative proposals. Continue reading
Today we are launching our new DSM Directive Implementation Tracker.
These tracking pages aim to provide information on the status of the implementation of the new Copyright Directive in all EU Member States. The information contained in each country page was collected by local organisations and individuals in each country and/or from public sources.
This tracker is part of a wider implementation project of COMMUNIA and its members Centrum Cyfrowe and Wikimedia, which includes a range of activities (including our DSM Directive Implementation Guidelines) to make sure that local communities in as many Member States as possible are aware of their national legislative processes and participate in those processes.
What is the current status of the implementation?
One year after the entry into force of the DSM Directive, the implementation picture is very varied. So far only one member state (France) has adopted one element of the Directive (the new press publishers right) into national law.
There are currently two member states with implementation law proposals tabled in their national parliaments. In France a proposal implementing articles 17 – 22 of the Directive has cleared committee and is awaiting first reading in plenary. In the Netherlands a proposal implementing the entire Directive has just been introduced into parliament and is awaiting reading in the legal affairs committee.Continue reading