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.
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.
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.
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.
As always, the COMMUNIA Salon is open for everyone to attend and will be held on Zoom. Join us on Wednesday, the 17th of March, at 1530 CET, by registering here. Registered participants will receive login information ahead of the event.
Just as the original discussion draft, the Referentenentwurf drew massive criticism from rightsholders that was primarily directed at the user rights safeguards contained in the proposal. Unfortunately the Ministry of Justice has now caved in to some of these demands and as a result the user rights safeguards have been further cut back in the final proposal adopted by the government (“Regierungsentwurf“).
The most substantial change in the Regierungsentwurf concerns the legal mechanism for ensuring that user rights are protected in line with the requirements of paragraph 17(7). The original proposal relied on a new exception that legalised minor uses of copyrighted works (any use consisting of less than 20 seconds of audio or video, 1000 characters of text or images smaller than 250Kb) and would have prevented platforms from blocking such uses.
In the updated proposal this exception is gone and has been replaced by a more limited construction of “uses presumably authorised by law” which cannot be blocked automatically. For a use to be “presumably authorised by law” it needs to fulfil the following cumulative criteria:
Yesterday, we held the first 2021 edition of our COMMUNIA Salon. This virtual edition focused on the role of ex-ante user rights safeguards in implementing Article 17. This is certainly the most controversial question that has arisen during the national discussions of the implementation of Article 17, and one that will likely be discussed long after the deadline for implementing the new Copyright Directive is over. During the event we heard the Commission’s views on the topic, recollected the legislative history of Article 17(7), and learned about two implementation proposals that are currently being discussed in Germany and Finland. 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 Marco Giorello (Head of Copyright Unit, European Commission), who started by recalling that the main objective of Article 17 is to foster the conclusion of licensing agreements between rightholders and online platforms, and not to provide an enforcement tool to rightholders against illegal content. He then summarized the Commission’s views on the practical application of Article 17(7), clarifying that this provision requires online platforms to consider legitimate uses ex-ante and that it is not enough for Member States to give flesh to user rights by simply relying on ex-post redress and complaint mechanisms. He further acknowledged the struggles in finding a solution to implement Article 17 in a balanced way, pointing out that this is probably the first time that the EU lawmakers are trying to find a way to respect fundamental rights in a machine-to-machine environment.
On the 26th of January at 1530 (CET) we are hosting the first COMMUNIA salon of 2021. This edition will focus on the most controversial question of the discussions surrounding the implementation of Article 17: the need to introduce ex-ante user rights safeguards in national implementations of the directive, to ensure that legitimate uses of third party works cannot be automatically blocked.
In the discussions over the past year the need for ex-ante user right protections has become apparent. In its targeted consultation, the Commission has made it clear “that it is not enough […] to only restore legitimate content ex post” and, in the CJEU hearing in Case C-401/19, the Commission and the Council have argued that the requirement not to prevent the availability of legitimate uploads takes precedence over the requirement to make best efforts to prevent the availability of works that rightsholders want to keep off a platform.
By now three Member States have made implementation proposals that include such ex-ante safeguards. Germany and Austria have put forward draft laws that introduce “minor use” thresholds and allow users to pre-flag legitimate uploads. Finland has proposed a “blocking mechanism” that would require rightsholders to review uploads containing their works before they can issue a blocking request.
During the upcoming COMMUNIA salon, we will be discussing these proposals with Julia Reda (former MEP and project lead at GFF), Viveca Still (Senior Copyright Advisor, Ministry of Culture, Finland), Marco Giorello (Head of Copyright Unit, European Commission) and Tobias Holzmüller (General Counsel, GEMA). The Salon will be moderated by Alek Tarkowski (COMMUNIA/Open Future).
The presentations will be followed by an informal question and answer session and concluding remarks by Paul Keller (COMMUNIA/Open Future).
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.
The implementation deadline for the Copyright in the Digital Single Market is a mere five months ahead of us. On the 7th of June, the EU Member States are expected to have implemented the 2019 update of the EU copyright rules. With less than half a year to go, it is looking increasingly unlikely that more than a small handful of Member States will manage to implement the new provisions by the deadline. In this post, we are taking stock of the implementation process focussing on what has changed since our update from a month ago.
While the past month included the holiday break, there have still been some significant developments. This included the first member state to have completed the implementation process (the Netherlands) and the first Member state to throw in the towel and officially announce that the implementation process will only be concluded after the implementation deadline (Denmark). But before we look at these developments in more detail, let’s first have a look at the discussions surrounding the implementation of Article 17.
There has been no further progress on the Commission’s Article 17 implementation guidance. Originally expected to be presented in the second half of 2020, there is no sign of them yet. So far the Commission has not even managed to publish the responses to the consultation that was concluded in September 2020.
More Member States commit to protecting users’ rights.
With no clear timeline for the Commission guidelines, more and more Member States have given up waiting and are presenting their implementation ideas for Article 17. In early December the Austrian Ministry of Justice circulated a first proposal for implementing Article 17 among stakeholders for feedback (see our joint response with epicenter.works and SaveTheInternet Austria here). This proposal takes up a number of key elements of the previous German proposals (direct remuneration right for creators, the ability to pre-flag uploads as legitimate, a threshold that protects minor uses from automated blocking, and the ability for users’ organizations to act against structural overblocking) and fits them into a more traditional approach: Where the German legislator proposes to implement the Article 17 provisions in a separate law, the Austrian proposal would integrate the provisions into the body of the existing copyright act.
In Germany, the discussion about the implementation proposal is still ongoing: Seemingly in response to pressure from the rightsholders and platforms (channeled via other ministries controlled by the CDU) the Ministry of Justice has retracted one of the most controversial elements of its implementation proposal: A new leaked version of the proposal (dated 22 November) is missing the controversial “de minimis” exception that would have legalized uses of works shorter than 20 seconds of audio or video or 1000 characters of text. However, the same thresholds are now part of a new mechanism that protects “presumably legitimate uses” as long as they do not exceed 50% of an original work and combine the matched work with other material. While much weaker than a standalone exception, this mechanism would still ensure that many forms of user-uploaded creative expression could not be automatically blocked.
The procedure presents a radical departure from the approach that is underpinning other user rights-preserving implementation proposals (such as the Austrian and German proposals) and the Commission’s proposed (and much delayed) Article 17 implementation guidance. Instead of limiting the use of automated filters to a subset of uploads where there is a high likelihood that the use is infringing, the Finnish proposal does away with automated blocking of user uploads entirely, but not with automated detection of potential infringements.
The Finnish proposal relies on mandatory use of content recognition technology by platforms and the rapid notification of rightsholders of uploads that match works for which rightsholders have provided them with reference information. However, platforms are only required to disable access to uploaded content after rightsholders have provided them with a properly justified request to block a particular upload:
While this approach bans automated filtering of user uploads, it still heavily relies on automated content recognition technology. The proposed “blocking procedure” requires that all platforms covered by Article 17 would need to have technology in place that can match uploads to reference information provided by rightsholders so that rightsholders can be directly notified when matching content is uploaded. Notifications sent to rightsholders also include the justifications that uploaders have provided at the time of upload as to why they consider a use of third-party content to be legitimate.