Open letter: More transparency for the Stakeholder dialogue

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Stressing the importance of protecting user rights
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Yesterday COMMUNIA, Liberties, EDRI, IFLA, Save the Internet and 38 other organisations representing users, citizens and creators sent an open letter to the European Commission asking for a more transparent approach to Article 17 stakeholder dialogue that is currently ongoing in Brussels (see our previous posts on the stakeholder dialogue here).

In this letter we are making two demands, one procedural in nature and one on the substance of the discussions. Regarding the procedure we are asking the Commission to commit to publishing a draft of its guidelines for the application of Article 17 of the DSM Directive during the stakeholder dialogue in order to give us (and all other stakeholders) the ability to scrutinise the proposed guidelines and provide the Commission with feedback.

In terms of substance the letter repeats the key demand that users’ organisations (backed by a large number of academics) have been expressing throughout the stakeholder dialogue namely that …

… the guidelines must ensure that the protection of “legitimate uses, such as uses under exceptions or limitations” as required by Article 17(9) of the Directive takes precedence over any measures implemented by online content-sharing service providers (OCSSPs) to comply with their obligations under 17(4) (b) (c). Automated filtering technologies can only be used if OCSSPs can demonstrate that their use does not affect legitimate uses in any negative ways.

The next meeting of the stakeholder dialogue will take place tomorrow and (you will be able to find a web stream here). Follow us on twitter for updates from the meeting (we will also publish a report here later this week).

Article 17: Both French and Dutch implementation proposals lack key user rights safeguards

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Selective implementations sacrifice user rights
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As of January 2020 there are two Member States that have published legislative proposals for the implementation of Article 17 CDSM. In July the Netherlands published a proposal for an implementation law for public consultation that implemented all provisions of the CDSM directive. Then, in early December, France published the proposal for a project for a law on audiovisual communication and cultural sovereignty in the digital era that implements some of the CDSM directive provisions, including Article 17 (see a first analysis of the French proposal by Julia Reda here).

These first implementation proposals are coming from a main proponent of Article 17 (France) and one of the most vocal opponents (Netherlands), and allow us to get a first impression of how Member States across the EU are likely going to deal with this controversial article. Irrespective of the different positions by France and the Netherlands during the directive negotiations, the implementation proposed by both Member States do not diverge much from each other. 

Both the laws stay very close to the text of the directive: The French implementation largely follows the order of the different sections of the directive via two nearly identical articles, one dealing with copyright (L137) and the other dealing with related rights (L219). The Dutch implementation law follows its own structure and introduces 3 articles (29c, 29d and 29e) that deal with copyright and one article (19b) that declares these articles to also apply to neighbouring rights. 

Selective implementations

The general approach chosen by both legislators is to transpose the text of Article 17 (paragraphs 1-6 and 8 and the definition of online content-sharing service providers (OCSSP) from article 2(6)) as closely as possible into their national law.

Neither of the legislators transposes paragraph 17(7) (that introduces crucial safeguards protecting uses under exceptions and limitations) and both only transpose parts of paragraph 17(9) (that imposes an obligation on OCSSPs to operate a complaint and redress mechanisms for users in the event of disputes over the takedown and staydown procedures). None of the legislators provide any further guidance on how platforms are supposed to meet the requirement to make “best efforts to obtain authorisation” from rightholders. Continue reading

Article 17 stakeholder dialogue (day 4): it’s all about transparency

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The fourth meeting of the Article 17 stakeholder dialogue took place in the last week before the holiday break. Just like the third meeting, this meeting was dedicated to (more or less) technical presentations on content management technologies and existing licensing practices. In total there were 12 presentations from platforms (Facebook, Seznam, Wattpad), providers of content management tools (Audible Magic, Ardito, Fifthfreedom, Smart protection), rightholders (GESAC, Universal Music Publishing, Bundesliga) as well as by BEUC and the Lumen database.

Filters are context-blind

The day’s presentations largely repeated the lines of arguments different stakeholders had presented during the previous meetings (a recording of the full meeting can be found here). Most notably all providers of content recognition technology confirmed that their technology does not go beyond simple matching of files and cannot understand the context in which a use takes place. Audible Magic summarised this in their opening statement:

Copyright exceptions require a high degree of intellectual judgement and an understanding and appreciation of context. We do not represent that any technology can solve this problem in an automated fashion. Ultimately these types of determinations must be handled by human judgement […]

As we have argued after the third meeting of the stakeholder dialogue, this is an unsurprising but significant insight as it means that current technology cannot be used to automatically block or remove content uploaded by users. 

Platforms don’t trust rightholders

The presentation given by Facebook about Facebook Rights Manager, its in-house content recognition tool, highlighted another problem that such tools are facing: One of the “main challenges” that Facebook is facing with its Facebook Rights Manager tool is that rightholders abuse the tool by claiming rights in works that they do not own. As a result Facebook only makes the most sensitive functionalities (such as automated blocking of uploaded content) available to a small group of carefully vetted trusted rightholders. Continue reading

Implementing the new EU press publishers’ right

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Last week, we launched our Guidelines for the Implementation of the DSM Directive. This is part of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the new exclusive right granted to EU press publishers by the new Copyright Directive.

For a detailed analysis, please read Communia’s guide on Article 15, authored by Timothy Vollmer, Teresa Nobre and Dimitar Dimitrov.Continue reading

Implementing the new EU provision that protects the public domain

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Last week, we launched our Guidelines for the Implementation of the DSM Directive. This is part of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the mandatory provision in the new Copyright Directive that ensures that faithful reproductions of public domain works of visual art cannot be subject to exclusive rights.

For a detailed analysis, please read Communia’s guide on Article 14, authored by Paul Keller, Teresa Nobre and Dimitar Dimitrov.Continue reading

Implementing the new EU provisions that allow the use of out-of-commerce works

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Last week, we launched our Guidelines for the Implementation of the DSM Directive. This is part of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the mandatory provisions in the new Copyright Directive that allow cultural heritage institutions to digitise and make out of commerce works in their collections available online.

For a detailed analysis, please read Europeana and Communia’s guide on Articles 8-11, authored by Ariadna Matas and Paul Keller. Continue reading

Implementing the new EU protections against contractual and technological overrides of copyright exceptions

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This week, we launched our Guidelines for the Implementation of the DSM DirectiveThis is part of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the mandatory provisions in the new Copyright Directive that prevent contractual and technological overriding of some of the new copyright exceptions.

For a detailed analysis, please read Communia’s guide on Article 7, authored by Teresa Nobre and Natalia Mileszyk. Continue reading

Implementing the new EU exception for preservation of cultural heritage

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This week, we launched our Guidelines for the Implementation of the DSM Directive. This is part of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the mandatory exception for preservation of cultural heritage contained in the new Copyright Directive.

For a detailed analysis, please read IFLA and Communia’s guide on Article 6, authored by Stephen Wyber. Continue reading

Implementing the new EU exception for digital and cross-border education

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This week, we launched our Guidelines for the Implementation of the DSM Directive. This is part of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the mandatory exception for digital and cross-border education contained in the new Copyright Directive.

For a detailed analysis, please read Communia’s guide on Article 5, authored by Teresa Nobre. Continue reading

Implementing the new EU exceptions for text and data mining

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Yesterday, we launched our Guidelines for the Implementation of the DSM Directive. This is the first of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the two mandatory exceptions for text and data mining contained in the new Copyright Directive.

For a detailed analysis, please read LIBER and Communia’s guide on Articles 3 and 4, authored by Benjamin White and Maja Bogataj Jančič. Continue reading