Video Recording of COMMUNIA Salon on the role of ex-ante user rights safeguards in implementing Article 17

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.

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Finnish Article 17 implementation proposal prohibits the use of automated upload filters

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No upload filters after all?
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On Monday, the Finnish Ministry of Education and Culture held a public hearing on the implementation of Article 17 of the Copyright Directive. As part of this meeting, the Ministry outlined its proposal for a user rights-preserving “blocking procedure” that substantially deviates from all other implementation proposals that we have seen so far. 

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. 

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How Hungary has quick-fix implemented Article 5 of the DSM directive

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Taking care of what matters the most
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This blogpost is part of a series of blogposts where we track how EU Member States are adapting their national laws to the requirements of Article 5 of the Copyright in the Digital Single Market Directive (DSM directive), which sets new minimum standards for the digital and cross-border use of copyright materials in education. So far we have published analysis of the Dutch and the German proposals. Today, we provide an overview of the Hungarian new education exception by Mónika Trombitás Andersson. This overview focusses on the substance of the new exception; for critical perspective on the legislative procedure see here.

Fast implementation of the new exception to permit remote teaching during COVID-19

Just as in several other EU Member States, in Hungary as well the stakeholder consultations regarding the implementation of the DSM Directive are still ongoing. Yet, the provisions set out in Article 5, namely those concerning the use of works in digital and cross-border teaching activities, have already been implemented and the relevant amendments to the Hungarian Copyright Act (No. LXXVI of 1999) came into effect on 18th July 2020. The reason? Urgent need for modern copyright rules enabling schools to swiftly transition into distance education during the COVID-19 pandemic and distribute learning material digitally.Continue reading

Civil Society letter on the Article 17 implementation guidance

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Guidance must aim to protect users' rights!
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Earlier today 27 (update 17-09-2020: 32) civil society organisations sent a joint letter to Commissioner Breton summarising our responses to the Article 17 guidance consultation that closed last week. In addition to organisations participating in the stakeholder dialogue, the letter has also received support from a broad coalition of digital and human rights organisations from across Europe. 

The letter expresses concerns that the proposed Article 17 guidance endorses the use of automated content blocking by online services even though it is clear that this will lead to the violation of fundamental rights. It also warns that implementations of Article 17 based on the proposed guidance will violate established principles of EU law.

In this context the letter highlights the need for meaningful safeguards for legitimate uses of content uploaded to online platforms, and stresses the need for a robust redress mechanism for users. Summarising the consultation responses submitted by the various signatories, the letter highlights the importance of ensuring that uploads that are not manifestly infringing must remain online until a human review has taken place. The letter further stresses the importance of involving users’ organisations when setting technical parameters that are used to determine if an upload is manifestly infringing or not. 

The letter further highlights the need for full transparency of (automated) content removals and the ability for users (and user organisations on their behalf) to take actions against the abuse of the measures introduced by Article 17 of the DSM directive.

Finally, the letter also expresses support for the Commission’s clarification that Article 17 constitutes a “lex specialis” to the provisions of the InfoSoc Directive which provides Member States with maximum flexibility to include user rights preserving authorisation mechanisms in their national legislation.

You can read the full letter including the list of signatories here.

A step in the right direction: Our response to the targeted consultation on the Article 17 guidance

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Thanks for listening!
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Yesterday we submitted our response to the European Commission’s targeted consultation on the Article 17 guidance. As we have explained previously, with this consultation the Commission was seeking feedback on its initial ideas for the Article 17 implementation guidance, which the Commission intends to publish before the end of the Year. The document is intended to provide Member States with guidance on how to balance the conflicting requirements of Article 17 (preventing copyright infringements while ensuring that legal uses are not affected) when implementing it in their national legislations.

As we said in our initial analysis, we were very happy to note a clear commitment of the Commission to maintain the delicate legislative balance of Article 17 that reflected many of the constructive contributions that have been made by stakeholders across the spectrum during the dialogues. In general, we consider the Commission’s proposal a step in the right direction and this is reflected in our response to the consultation. Unsurprisingly, organisations representing rightholders have a completely different reaction to the proposal and have already started a campaign to convince the Commission into abandoning its approach. Continue reading

Commission consultation on Article 17 guidance: User rights must be protected at upload

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Legitimate uses must be considered at all times
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At the end of July the Commission published a long awaited “targeted consultation addressed to the participants to the stakeholder dialogue on Article 17 of the CDSM Directive“. With this consultation the Commission makes good on its (pre-covid) promise to “share initial views on the content of the Article 17 guidance” with the participants of the stakeholder dialogue. Nestled in-between 18 questions, the consultation document provides a detailed outline of what the Commission’s guidance could look like once it is finalised.

While we have been rather sceptical after the end of the six meetings of the stakeholder dialogue meetings, we are pleased to see that the initial views shared by the Commission express a genuine attempt to find a balance between the protection of user rights and the interests of creators and other rightholders, which reflects the complex balance of the provisions introduced by Article 17 after a long legislative fight.

In the remainder of this post we will take a first, high level, look at the Commission’s proposal for the Article 17 guidance, what it would mean for national implementations and how it would affect user rights.

Two welcome clarifications

With the consultation document the Commission takes a clear position on two issues that were central to the discussions in the stakeholder dialogue and that have important implications for national implementation of Article 17.

The first one concerns the nature of the right at the core of Article 17. Is Article 17 a mere clarification of the existing right of communication to the public, as rightholders have argued, or is it a special or sui generis right, as academics and civil society groups have argued? In the consultation document the Commission makes it clear that it considers Article 17 to be a special right (“lex specialis”) to the right of communication to the public, as defined in Article 3 of the 2001 InfoSoc Directive, and the limited liability regime for hosting providers of the E-commerce Directive. 

What sounds like a fairly technical discussion has wide ranging consequences for Member States implementing the Directive. As explained by João Quintais and Martin Husovec, now that it is clear that Article 17 is not a mere clarification of existing law, Member States have considerably more freedom in deciding how online platforms can obtain authorisation for making available the works uploaded by their users. This should mean that they are not constrained by the InfoSoc Directive. Therefore, mechanisms like the remunerated “de-minimis” exception proposed by the German Ministry of Justice that would legalise the use of short snippets of existing works are permitted and covered by the concept of “authorisation” introduced by Article 17. Continue reading

The German Model to Protect User Rights when implementing Article 17

Rechtvaardigheid (Justitia)
Finding balance with exceptions, pre-flagging and abuse sanctioning
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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

COMMUNIA Salon 2020/3: The German proposal to implement Article 17 – A broken promise or a way forward?

COMMUNIA Salon 2020/3: The German proposal to implement Article 17Licentie

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.

Article 17 implementation: German proposal strengthens the right of user and creators

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A more balanced way to implement Article 17
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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

Video recording of the COMMUNIA salon on 18 June 2020

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