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In the updated proposal this exception is gone and has been replaced by a more limited construction of “uses presumably authorised by law” which cannot be blocked automatically.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.
Back in July of 2019, the Netherlands were the first country to propose an implementation law of the DSM directive. Somewhat surprisingly (the Netherlands had been one of the most vocal opponents of Article 17 in the Council) the proposed implementation law did not make any efforts to protect user rights and omitted most of the user rights safeguards contained in the final version of Article 17. After the proposal was sent to Parliament in June this year, together with Bits of Freedom and others we pointed out these shortcomings to the members of the legal affairs committee. Yesterday, in response to questions from members of the legal affairs committee, the government conceded that its original implementation proposal was incomplete and added the missing user rights safeguards to the proposal for an implementation law. Continue reading →
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 behavior by platforms, rightholders, and users.
We have organized a webinar on this topic, which you can watch here.
Former MEP Julia Reda has published a two-part comment on this on the Kluwer Copyright Blog, including a discussion of the strengths and fragilities of this proposal, which is the first one to actually attempt to avoid over-blocking of content. (Part 1, Part 2)
At the beginning of July we heard that the French Government would try to pass the implementation of Article 17 via an administrative decree as part of a law that implements various EU directives (Ddadue law), to speed up its adoption (and sidestepping substantial discussion in Parliament). On July 8th the first reading of the Ddadue law took place in the French Senate, and the proposed amendment to grant the Government the power to implement the provisions of the Copyright Directive by way of ordonnance (Amendment 23) was unanimously supported (in the adopted text article 24bs is the one authorizing the French Government to implement the Copyright Directive). The executive orders to transpose Articles 2 to 6 and 17 to 23 of the Copyright Directive will have to be issued within six months of the adoption of the law, and the executive orders for the remaining provision have to be issued within 12 months. The National Assembly still needs to approve the Ddadue law. The law was forwarded to the Assemblee Nationale for adoption. Continue reading →
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 →
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.