Stakeholder dialogue to improve cross border access to audiovisual content

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End unjustified geoblocking now
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Earlier this week, COMMUNIA was invited to participate in a high-level roundtable on access to and availability of audiovisual content across the EU hosted by Commissioner Thierry Breton. This round table which took place today marks the beginning of a stakeholder dialogue with the audiovisual industry to agree on concrete steps to improve the access to and availability of audiovisual content across borders in the EU. This stakeholder dialogue will take place in the coming months with meetings scheduled for 8 and 22 November and 10 December.

We have accepted this invitation in order to ensure that the perspective of users/consumers seeking access to audiovisual works will be represented in the discussions that should lead to the end of unjustified geo-blocking of audiovisual content in the EU. We have outlined our initial position in the opening statement delivered by Paul Keller during today’s high level round table:

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Our response to the new Austrian copyright implementation proposal

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One step forward two steps back
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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. 

Earlier this week, together with epicenter.works, Gesellschaft für Freiheitsrechte, Wikimedia Austria, Creative Commons Austria and the Cultural Broadcasting Archive we have submitted extensive comments in response to the new implementation draft (PDF, in German) which we summarise below.

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. 

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Civil society organisations urge WIPO Member States to admit Wikimedia as an observer

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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.

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COMMUNIA SALON 4/2021: Article 17: Unpacking the AG Opinion in case C-401/19

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On Wednesday, the 21st of July at 1300 CEST, we will be organising a special lunch edition of our COMMUNIA salon. This time we will analyze the Opinion that CJEU Advocate General Saugmandsgaard Øe issued on Case C-401/19, the Polish request to annul Article 17 of the CDSM directive.

His Opinion finds that Article 17 is compatible with the freedom of expression and information guaranteed in Article 11 of the Charter of Fundamental Rights of the European Union and consequently advises the Court to reject the annulment request. While the annulment of problematic provisions would be preferable, the opinion provides important clarification on user rights safeguards.

For this edition Paul Keller (COMMUNIA/Open Future) will be joined by Felix Reda (Project Lead © Control at GFF and former MEP) and Martin Husovec (Assistant Professor of Law at LSE) to discuss the AG Opinion’s implications on the implementation of the CDSM directive across Europe. The Salon will be moderated by Teresa Nobre (COMMUNIA).

As always, the COMMUNIA Salon is open for everyone to attend and will be held on Zoom. You are welcome to join us by registering here. You will receive your login details ahead of the Salon.

Video Recording of COMMUNIA’s 10th Anniversary

On Tuesday, June 15th, we celebrated our 10th anniversary with an online birthday party. For those of you who were unable to attend we have now published a recording of the event:

To kick off the festivities, we reviewed the 14 policy recommendations that COMMUNIA issued 10 years ago to see what happened to them over the past decade (from 00:03 to 00:21 in the recording). As it turns out a fair number of them have been at least partially – or  even fully – implemented, in many cases thanks to advocacy work that we and our partners have done 

For the second part of the event, we brought together three friends from academia who have influenced our work in important ways to reflect on COMMUNIA’s work. 

First, Prof. Juan Carlos de Martin (Politecnico di Torino and founding father of the COMMUNIA project) reflected on what makes COMMUNIA a unique community which started 15 years ago as an EU-funded network and that continues the importance of public funding for communities advocating for the public interest to this day.

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SCCR/41: COMMUNIA Statement on Limitations and Exceptions

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How can a country solve this issue alone?
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This week COMMUNIA is attending the 41st session of the WIPO Standing Committee on Copyright and Related Rights (SCCR), in its observer capacity.

This is the second time the Committee meets since the beginning of the pandemic. In November last year, we urged the Committee to take appropriate action to respond to the massive disruption to education, research and other public interest activities caused by the COVID-19 pandemic. However, no Delegations put forward any proposal, and we left the SCCR disappointed at WIPO’s inaction in the face of this global crisis. 

Today, most Delegations expressed their agreement to a proposal to hold a number of regional consultations “to further develop the understanding of the situation of the cultural and educational and research institutions at the local level, especially in light of the impact of the Covid-19 pandemic on them”. Furthermore, a proposal by the Asia-Pacific Group, to hold an informational session at the next SCCR on the impact of COVID-19 on all the beneficiaries of the copyright system, was also well received.

Global South countries insisted, nevertheless, that the next steps for the agenda items on limitations and exceptions to copyright should not be limited to those consultations and information sessions. Many Delegations recalled the 2012 mandate to work towards “an appropriate international legal instrument”, and urged the Committee to set a work plan to fulfill the mandate.

The following is the statement made on behalf of COMMUNIA on the agenda item on limitations and exceptions for educational and research institutions and for persons with other disabilities (Agenda Item 7):

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SCCR/41: COMMUNIA Statement on the Protection of Broadcasting Organizations

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Again: no rights without exceptions!
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In our capacity of permanent observers of the WIPO Standing Committee on Copyright and Related Rights (SCCR), we are attending the 41st session of the Committee, which is taking place in a hybrid format of in-person and online participation from 28 June and 1 July 2021.

The first day of the event was dedicated to discuss the protection of broadcasting organizations, and several delegations shared their dissatisfaction with the fact that informal discussions on the text of the draft broadcast treaty had taken place without ensuring the participation of a diversity of delegations. The SCCR Chair invited to these meetings only to the so-called “Friends of the Chair”, which include Argentina, Colombia, the European Union, Finland, Germany, Japan, Kenya, Mexico, the Philippines, Republic of Korea, Russian Federation, and the United States of America. Civil society observers joined Indonesia, Pakistan, Iran, South Africa and Chile in their ask for greater transparency and inclusivity.

The following is the statement made on behalf of COMMUNIA on this agenda item (Agenda Item 5):

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10 years of COMMUNIA, a decade of copyright reform: how far did we get?

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Last week, on June 15, COMMUNIA celebrated its first 10 years. To mark the event, we decided to revisit the 14 policy recommendations that were issued at the moment of our foundation, and that have been the guiding principles for our advocacy work in the last decade.

We launched a new website, dedicated to reviewing the implementation of these policy recommendations. 10 years on, it is possible to see that half of our recommendations have been implemented – fully or partially -, and the other half remains unfulfilled. Most importantly, almost all of the recommendations are still relevant.

Where victory can be claimed: freeing digital reproductions of public domain works and giving access to orphan works

One of COMMUNIA’s main objectives since its foundation has been to promote and protect the digital public domain. Therefore, when the EU Parliament decided to follow our Recommendation #5 and proposed the introduction of a provision in the new Copyright Directive, preventing Member States from protecting non original reproductions of works of visual arts in the public domain with copyright or related rights, we were exhilarated. Article 14 not only reconfirms the principle that no one should be able to claim exclusive control over works that are in the public domain; it’s also the first EU piece of legislation to expressly refer to the concept of “public domain”.

Getting the “public domain” to enter the EU acquis lexicon was a major victory for user rights, but for sure more measures are needed to effectively protect the Public Domain. Our Recommendation #6, which called for sanctioning false or misleading attempts to misappropriate or claim exclusive rights over public domain material, has not been implemented and is more relevant than ever, particularly on online content sharing platforms. Here, a false ownership claim can easily lead to the false blocking of public domain material, as a result of the use of automated content recognition systems combined with the lack of public databases of ownership rights (that’s why the German legislator has recently adopted measures against this type of abuse, setting a new standard for the protection of the Public Domain).

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Eurovision DSM Contest: the once in a decade copyright reform contest

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This Monday, June 7, was the last official day for EU Member States to implement the Directive on Copyright in the Digital Single Market. To mark the date we launched the “Eurovision DSM contest” website. The website provides a playful overview of the implementation of the new Copyright Directive across the EU, and Member States are scored on various performance levels: on the transparency and inclusivity of the procedure, on the implementation of Article 17, and on the implementation of other provisions that are either key from a user rights perspective (the mandatory exceptions and limitations to copyright and the public domain provision) or that also have the potential to harm users’ fundamental freedoms (the new press publisher rights). A bonus point is also available to those who have excelled in any other way.

While at the beginning of the week only three Member States had fully implemented the Directive (the Netherlands, Hungary and Germany), and could therefore be scored on all performance levels, it is already possible to track the level of activity across the board. As more Member States reach the finish line, we will attribute final scores and throw them into the contest. 

The first, second and third places (so far!)

So far, Germany is the front runner: the Federal Ministry of Justice and Consumer Protection held a transparent and inclusive discussion, which lasted for more than a year, and set a high standard for protecting user rights against overblocking. Hungary is in second place, in part due to the bonus point it got for fast-tracking the implementation of the new digital education exception, during the outbreak of COVID-19, having created room for remote teaching while educational institutions were closed. The Netherlands have been the first out of the door, with a draft text ready for an online consultation less than a month after the publication of the Directive, but the Dutch government failed to demonstrate its commitment to protecting user rights in the implementation, pushing it to the third place so far (with the possibility to still earn some extra points, if the Minister of Justice decides to make use of the power that received in the implementation law, to provide further rules for the application of Article 17).

France and Denmark, which have rushed to implement on time only the provisions that strengthen the position of creators and right holders, have been scored for the implementation of Articles 15 and 17, but will only officially enter the contest once they have implemented the remaining parts of the Directive.

Skipping the parliamentary debate

At this point, all Member States (except Portugal) have, in some way or another, initiated the legislative procedure, but some processes have been far from transparent or inclusive. In France and Italy, the Parliament delegated the legislative powers in the government, meaning that those countries will skip a central stage of the democratic process, which is the parliamentary debate and vote over the concrete implementation proposal put forward by the government. In France, where the Ministry of Culture went through the implementation of Articles 15 and 17 without providing any opportunity for stakeholders to share their views and concerns about those provisions, no public consultation is expected for the remaining parts of the Directive. In Italy, the Ministry of Culture is said to be planning to, at least, run a public consultation once its draft decree is finalized.

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A closer look at the final Commission guidance on the application of Article 17

Today, on the verge of the implementation deadline for the CDSM directive, the European Commission has published its long awaited guidance on the application of Article 17 of the Directive, in the form of a Communication from the Commission to the European Parliament and the Council. The structure of the final guidance largely follows the outline of the Commission’s targeted consultation on the guidance from July 2020, but there are significant changes to the substance of the final document. The final version of the guidance makes it clear that the European Commission has completely undermined the position it held before the CJEU, that Article 17 is compatible with fundamental rights as long as only manifestly infringing content can be blocked.

In the final guidance, the Commission maintains that it is “not enough for the transposition and application of Article 17(7) to restore legitimate content ex post under Article 17(9), once it has been removed or disabled” and argues that only manifestly infringing content should be blocked automatically, but these “principles” are included in name only. By introducing the ability for rightholders to “earmark” any content that has the potential to ”cause significant economic harm”, the guidance allows rightholders to easily override these principles, whenever they see fit, and to force platforms to automatically block user uploads even if they are not manifestly infringing.

In the remainder of this post we will examine these last minute changes to the guidance in more detail. Before we do that, we will briefly recall the key problem that the guidance was supposed to resolve and the principles that underpinned previous versions of the guidance.

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