Filtered Futures: a Conference to examine upload filters after the CJEU ruling on Art. 17

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The recent CJEU decision on Article 17 of the copyright directive has defined a framework for the use of automated content moderation. The Court considers filtering obligations compatible with the right to freedom of expression and information as long as they are limited to use cases that allow for a robust automated distinction between legal and illegal content. In the context of Article 17, upload filters may therefore only be used by online platforms to block manifest infringements of copyright law. The Court leaves it up to the Member States to ensure that legal uses remain unaffected by their national transpositions of Article 17.

The judgment raises a host of important questions for the enforcement of copyright law as well as for the compatibility of upload filters with fundamental rights even beyond copyright law. To discuss these consequences, together with Gesellschaft für Freiheitsrechte we are jointly organizing the “Filtered Futures” conference on Monday, September 19th 2022, in Berlin. 

We are inviting papers from all disciplines contributing to the conference theme. To present your work at Filtered Futures, please complete the submission form by July 10th, 2022. The form asks for a short abstract of your talk. All applicants will be notified by July 22th, 2022.

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COMMUNIA Salon on the CJEU decision on Article 17 and the future of upload filters in the EU

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On the 26th of April, the European Court of Justice will hand down its judgement in Case C-401/19 — the Polish challenge of the fundamental rights compliance of Article 17 of the Copyright in the Digital Single Market Directive, which was adopted nearly 3 years ago in April 2019.

On the 28th of April, from 1500h to 1630 CET, we are hosting a virtual COMMUNIA salon to discuss the implications of this highly anticipated judgement and what it means for the national implementations of Article 17. 

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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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Video Recording of COMMUNIA Salon on the AG Opinion in case C-401/19

On Wednesday the 21st of June we held a special lunch salon on Advocate General Saugmandsgaard Øe’s Opinion in Case C-401/19, the Polish request to annul Article 17 of the CDSM directive.

Moderated by Teresa Nobre, the salon started with Paul Keller (COMMUNIA/Open Future) assessing the opinion in the context of the Commission’s stakeholder dialogue and the ongoing national implementations (from min. 03:11 to min. 12:35 in the recording). While the opinion doesn’t provide for Article 17’s annulment, it provides important clarifications on users rights safeguards against automated, preventive content blocking systems adopted by sharing services providers.

Then Martin Husovec (London School of Economics) took a closer look at the overall strategy of the AG’s opinion while dwelling on its weaknesses and strengths (from min. 14:53 to min. 25.50 in the recordings). He focused on what he described as “AG Øe’s re-interpretation of Article 17” and further analysed the safeguard mechanisms provided in the opinion. 

The final presentation came from Felix Reda (GFF) (from min. 27:50 to min. 40:00 in the recordings) who expressed her disappointment to the fact that AG Øe did not recommend the to reject Article 17. She went on to  identify  a number of  inconsistencies in the parts of the opinion that attempt to reconcile the use of upload filters with the ban on general monitoring obligations. .

The discussion was followed by a Q&A session with the participants (from min. 42:20 onwards).

A look at the AG Opinion on Article 17

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Ex-ante blocking is against fundamental rights
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Last week, Advocate General Saugmandsgaard Øe at the CJEU issued his opinion in Case C-401/19, the Polish request to annul Article 17 of the CDSM directive. According to his Opinion, the preventive measures to monitor and block users’ uploads envisioned by Article 17(4) constitute a limitation on the exercise of the right to freedom of expression and information of the users of sharing services, but such a limitation is compatible with Article 11 of the Charter of Fundamental Rights of the European Union, since all the conditions laid down in Article 52(1) of the Charter are satisfied. 

In particular, the Advocate General found that the new liability regime established by Article 17(4) respects the proportionality requirement – despite entailing significant risks for freedom of expression – as it is accompanied by sufficient safeguards to minimise those risks:

  • sharing service providers are not authorised to preventively block all content which reproduces the copyright-protected content identified by rightholders, including lawful content (Article 17(7));
  • those providers are obliged to detect and block only content the unlawfulness of which seems manifest in the light of the ‘relevant and necessary’ information provided by the rightholders (Article 17(8));
  • additionally, and as final safeguard for situations where, despite the obligation in Article 17(7), those providers nevertheless block such legitimate content mistakenly, users have at their disposal a complaint and redress mechanism as well as out-of-court mechanisms (Article 17(9)).

While one could argue that the annulment of this problematic provision would be preferable, in light of the recent decision of the CJEU on Joined Cases C‑682/18, YouTube, and C‑683/18, Cyando, these clarifications on user rights safeguards are very much welcome. The views shared by the Advocate General are, in general, aligned with the arguments brought forward by COMMUNIA and other users’ rights organizations as well as the position held by large group of  academics, and if the CJEU decides to follow the AG Opinion it should force countries that have implemented Article 17 without proper user rights safeguards to reverse course. 

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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 Salon on the Article 17 guidance and the launch of the Eurovision implementation tracker.

On Monday the 7th of June – the day of the implementation deadline for the DSM Directive – we held a special COMMUNIA Salon to mark the entry into force of the Directive, to assess the implementation process being made in the 27 Member States and to discuss the Article 17 implementation guidance published by the Commission just before the entry into force of the Directive. 

The Salon kicked off with Teresa Nobre and Dimitar Dimitrov presenting our ongoing work supporting user rights’ advocates across the EU Member States to ensure a user rights’ friendly implementation of the Directive into national legislations (from 1:11 to 18:13 in the video recording). This was followed by the launch of the Eurovision DSM Contest, a new website which tracks the implementation progress for each Member State. 

The second part of the event (from 20:00 in the recording onwards) consisted of a discussion on the Commission’s Article 17 guidance. Paul Keller opened the discussion by noting that, while the guidance establishes important user rights’ safeguards that put into question the implementation approach chosen by Member States – most notably by France and Denmark –, it also contains a massive loophole by allowing rightholders to “earmark” their content as economically valuable.

Felix Reda (GFF) followed up by comparing the guidance to the recently adopted German implementation law. He argued that the German law seemed to be largely in line with the principles established by the guidance and highlighted that the German rules, for certain types of “high-value” content, are highly targeted and limited. In this light, this is much less problematic than the “earmarking” mechanism introduced by the Directive. 

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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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Article 17 implementation guidance: Strong user rights safeguards with a giant loophole

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Final guidance undermines users' rights safeguards
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Today, on the last day before the implementation deadline for the Copyright in the Digital Single Market Directive, the European Commission has finally published its long overdue implementation guidance for Article 17 of the Directive. The guidance, which marks the end of a stakeholder process that started in October 2019, is supposed to provide Member States implementing the Directive with guidance on how to reconcile the contradicting objectives contained in Article 17 of the Directive. It comes at a time where only a handful of Member States have implemented the Directive into their national law. 

In the final version of the guidance published today, the Commission will require Member States to include ex-ante safeguards for user rights in their national implementation legislation. In doing so, it provides support to the implementation approach taken by Germany (and discussed in Austria and Finland), while making it clear that Member States who have limited themselves to merely re-stating the provisions of the Directive (such as France, The Netherlands and Hungary) will need to include such additional safeguards (more on this below). 

Unfortunately, and confirming the suspicions that we had expressed in our recent open letter, the final version of the guidance walks back the strong commitment to protect users’ fundamental rights that the Commission had shown earlier in the process. As a result of relentless pressure from the entertainment industry, the final version of the guidance contains an “earmarking” mechanism that is designed to allow rightholders to override safeguards against automated blocking of user uploads that are not manifestly infringing, by claiming that a use of their works “could cause significant economic harm”. This provision is ripe for abuse by rightholders and undermines the relatively strong principles for safeguarding users’ fundamental rights, which the guidelines require Member States to include in their national implementations (see our detailed description of how the “earmarking” provision undermines the principles of the guidance here). 

The “earmarking” mechanism was added to the guidance in the last three months, in closed-door deliberations of the Commission and in reaction to massive pressure from rightholders. This back-room dealing of the Commission in the last months stands in stark contrast to the transparent and balanced way in which the Commission had handled the initial stages of the stakeholder process. After a series of public stakeholder dialogue meetings, the Commission had released a remarkably balanced consultation draft of the guidance in July of last year. The Commission then used the principles outlined in the draft to defend the legality of Article 17 before the CJEU, only to agree on a final version that substantially undermines these principles, behind closed doors and without further consultation of the stakeholders involved in the process. 

This conduct abuses the stakeholder process that the Commission was legally required to hold as part of the hard fought-political compromise embodied in Article 17. Where the Commission initially lived up to its role as a neutral steward of the legislative compromise, it has abandoned this role unilaterally, changing the final result based on massive political pressure from rightholders.

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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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