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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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.

Julia Reda (GFF) followed up by comparing the guidance to the recently adopted German implementation law. She 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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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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It’s our 10th birthday: Join us on the 15th of June to celebrate and discuss the future of copyright.

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This June, a few days after the implementation deadline for the DSM Directive, the COMMUNIA Association on the Public Domain will turn 10 years old. Founded in June 2011 in a Brussels bar (when gathering in the back rooms of bars was still a thing), to fight for policies that expand the public domain and increase access to and re-use of culture and knowledge, we have come a long way: 

Over the past decade we have engaged in efforts to shape the direction of copyright policy in the EU. After 10 years of existence and after the dust has settled on the Directive on Copyright in the Digital Single Market, it is time to look back, reflect and celebrate what we have achieved. 

We will do this on the 15th of June from 1530 (CEST) onwards with an anniversary event. For this occasion we will bring together key players and observers of the EU copyright policy arena from the past decade to reflect on the development of the EU copyright framework, to assess our efforts to expand the public domain and to increase access to and re-use of culture and knowledge, and to identify opportunities for policy changes in the decade to come. 

Our anniversary event will be hosted by COMMUNIA’s Teresa Nobre and Paul Keller. We will kick off by reviewing how our 14 policy recommendations have fared since we have adopted them in 2011.

After this we will be joined by Professor Juan Carlos de Martin (COMMUNIA founder and Politecnico di Torino), Professor Bernt Hugenholtz (University of Amsterdam) and Professor Pamela Samuelson (University of California, Berkeley) who will present reflections on our work and the evolution of the EU copyright framework in the past decade.

Afterwards Marco Giorello (Head of the Copyright Unit of the European Commission) will share some reflections on the evolving EU Copyright Policy Landscape. His presentation will be followed by a panel discussion on  the future of EU copyright policy between Catherine Stihler (CEO Creative Commons), Julia Reda (Gesellschaft für Freiheitsrechte and former MEP) and Melanie Dulong (Centre Internet et Société CIS-CNRS).

The COMMUNIA Anniversary is open for everyone to attend. Join us on Tuesday, the 15th of June, at 1530 CEST, by registering here. Registered participants will receive login information ahead of the event.

We are looking forward to celebrating with you 🥳

Communia Salon 2021/3: It’s the 7th of June 2021, so why is the internet still here?

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On Monday the 7th of June 2021 the Copyright in the Digital Single Market Directive will enter into force. To mark this event we are organising a special COMMUNIA Salon taking stock of the implementation process across the EU and taking a closer look at the latest developments around Article 17 of the Directive. Join us at 1530h (CET) for a very special programme.

We will kick off the event with the Eurovision DSM contest evaluating the implementation progress (or the lack thereof) in the 27 member states. We will hand out awards for the best and worst implementations and will let you know which Member States have managed to implement in time and which ones are still struggling.

After this glamorous introduction we will shine a spotlight at the latest developments related to the implementation of Article 17 of the directive. Julia Reda (Project lead Control © at GFF and former MEP), João Quintais (Institute for Information Law at the University of Amsterdam), Christophe Geiger (Centre for International Intellectual Property Studies – CEIPI, University of Strasbourg) and Paul Keller (Open Future / COMMUNIA) will take a close look at the newly adopted German implementation law with its strong focus on user rights safeguards. They will also examine the final version of the Commission’s implementation guidance which we expect to be published just in time for our Salon. 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. Join us on Monday, the 7th of June, at 1530 CEST, by registering here. Registered participants will receive login information ahead of the event.

German Article 17 implementation law sets the standard for protecting user rights against overblocking

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A practical approach to protecting users' rights
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Today the German Bundestag adopted the law implementing the provisions of the DSM directive into German law. The law still needs to be confirmed by the Bundesrat before it can be signed into law by the President, but it is not expected that the law will undergo any more changes during that process. As we have explained here before, the German implementation law is one of the most ambitious implementations of the DSM directive especially with regards to the way it implements the provisions of Article 17 of the directive. And while the discussions in the Bundestag have led to a number of changes to the text of the law, the key mechanism underpinning the government proposal for implementing Article 17 has emerged essentially unchanged. In addition, the discussion in the Bundestag has resulted in a number of substantial improvements in other parts of the law. 

Presumably legitimate uses

Once signed into law, the implementation of Article 17 will be the first one that contains a practical mechanism designed to ensure that the use of upload filters does not result in the blocking of user uploads which do not infringe copyright. The need for such an ex-ante mechanism arises from Article 17(7) and has also been stressed by the Commission at various points in the past

In order to achieve this, the German implementation relies on the concept of “uses presumably authorised by law”, which must not be blocked automatically. For an upload to qualify as “presumably authorised by law”, it needs to fulfil the following cumulative criteria:

  • The use must consist of less than 50% of the original protected work,
  • The use must combine the parts of the work with other content, and
  • The use must be minor (a non-commercial use of less than 15 seconds of audio or video, 160 characters of text or 125 kB of graphics) or, if it generates significant revenues or exceeds these thresholds, the user must flag it as being covered by an exception.

If these conditions are met, the use is considered to be “presumably authorised by law” and cannot be blocked automatically. Rightholders can still challenge the legality of such uses but platforms are required to keep the uploads online until those complaints have been reviewed by the platforms (there is an exception that allows “trusted rightholders” to request immediate removal if they consider the use evidently infringing and commercially harmful). 

This mechanism had been the target of massive criticism from rightholders throughout the parliamentary debate and it is welcome to see that the Bundestag has had the courage to hold the line here. The version of the law adopted today makes one small concession to rightholders. It now specifies that the “presumably authorised by law” mechanism does not apply to “the use of cinematographic works or videos until the end of their first public broadcast, in particular during the simultaneous broadcast of sports events, provided that the rightholder requests this from the service provider”. This change addresses concerns expressed by sports associations who argued that allowing people to share 15 second clips of sports events during an event would ruin their business model. While this seems highly dubious, the exception is so narrow that its impact on legal uses will be fairly minimal. 

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DSM Directive implementation update: With one month to go it is clear that the Commission has failed to deliver

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Italian implementation threatens to set a new low
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Today it is exactly one month until the 7th of June, the day on which the EU member states have to have implemented the provisions of the 2019 copyright in the digital single market directive in their national laws. And while the 27 Member States have had more than 2 years to complete their national implementations so far only two of them have managed to fully implement the directive: the Netherlands adopted its implementation law in December of last year and on the 28th of April the Hungarian parliament adopted its implementation law

In addition there are two Member States who have adopted so-called delegation laws that allow them to implement the provisions of the directive via subsequent administrative decrees. France adopted its delegation law in December 2019 and on the 20th of April Italy followed suit and adopted its delegation law. While the French implementation decree (which will include the actual provisions to be included in the copyright act) is still nowhere to be seen, the Italian Comitato Consultivo Permanente per il Diritto D’Autore is discussing a draft version of the Italian Implementation decree (pdf in Italian) today. 

Based on what is contained in the draft the Italian implementation is shaping up to be the worst one yet. The draft fails to implement exceptions that are mandatory under the directive (the fallback exception for out of commerce works in Article 8(2) CDSM), it claims that users can rely on a non-existing parody exception and it also claims (in the text of the law itself) that automated content recognition systems (a.k.a upload filters) can “ascertain clear violations” of copyright (something that literally everyone including the French government agrees that they can’t).

Otherwise, there has been relatively little recent movement in the EU Member States. The German implementation draft is still making its way through parliament. It is now in the final stages of deliberation and the the final vote is expected to take place on the 20th of May. Meanwhile most other Member States seem to be stuck in a holding pattern after having completed public consultations of their draft implementation legislation, shying away from introducing legislation into their parliaments.

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Open letter on Article 17: Is the Commission about to abandon its commitment to protect fundamental rights?

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Has the CJEU just called the Commissions bluff?
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Civil society groups have placed a lot of hope in the European Commission to limit the dangers to fundamental rights caused by upload filters through the Commission’s Article 17 guidance, which is supposed to help member states implement Article 17 of the DSM directive in a fundamental rights-preserving manner. But with less than two months to go before the implementation deadline, the guidance is still nowhere to be seen. In an open letter published today, twenty user rights organisations are therefore calling on the Commission not to undermine elements of the guidance that would protect users’ fundamental rights by limiting the use of automated upload filters to manifestly infringing content.

Late last week, the CJEU unexpectedly postponed the Advocate General opinion in the Polish case challenging the fundamental rights compliance of Article 17 of the DSM directive by almost three months. Knowing that the upcoming Commission guidance was discussed extensively at the CJEU hearing on the Polish case in November, the postponement could very well mean that the Advocate General wants to see the document before issuing an opinion.

While the Commission has been hinting at the imminent release of the guidance for a few months now, the timing indicates that the Commission precisely wanted to avoid giving the Advocate General time to study the guidance. This does not bode well for the fundamental rights safeguards the Commission is planning to present. Signals are mounting that the delays are the result of intense behind-the-scenes political wrangling aimed at undermining the user rights safeguards to be included in the guidance. 

That’s why, together with 20 other users’ rights organisations who have participated in the EU stakeholder dialogue on the implementation of Article 17, we have sent an open letter to the Commission, raising our concerns about the handling of the final phase of this process. The letter urges the Commission “not to weaken its guidance through open ended exception clauses that seem to benefit particular rightsholders at the expense of users’ fundamental rights” and stresses that “strong ex-ante fundamental rights protections are necessary to meet the obligation of result to protect users’ fundamental rights.” 

The letter further highlights the fact that, by issuing guidance that substantially diverges from the position taken before the CJEU, the Commission would indicate that it is ultimately lacking the political will to ensure that the required fundamental rights protections will be included in national implementations of the directive.

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German government draft on Article 17: Two steps forward, one step back

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maintaining the balance?
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At the beginning of February, the German Government (the “Bundeskabinett”) adopted the proposal for the implementation of the copyright directive, which opens the path for discussions in Parliament. While the proposal that has been adopted earlier this month has undergone significant changes since the first versions emerged in January 2020 (the provisions dealing the the new neighbouring rights for press publishers and most of the exceptions) and in June 2020 (the provisions dealing with Article 17, Out-of-Commerce Works and the protection of the Public Domain), it still remains one of the most ambitious implementation efforts that we have seen so far.

This post will take a closer look at the provisions implementing Article 17 of the Directive into German law. As we had noted in our analysis of the original discussion draft from June last year, the German legislator is proposing to implement these provisions into a new act that is separate from the copyright act: the “Act on the Copyright Liability of Online Sharing Content Service Providers”. By now the proposal for this act has undergone two public revisions. After the first discussion draft in June, the Ministry of Justice published a revised draft (“Referentenentwurf“) in October of last year. This revised version maintained the core user rights safeguards underpinning the original proposal (a new remunerated exception for minor use and the ability for uploaders to flag uploads as legitimate) while making a few changes to the way the pre-flagging mechanism works

A step back for user rights

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:

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