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
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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

Rechtvaardigheid (Justitia)
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

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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 →

Our DSM Directive Implementation Tracker is out

The finish in the great match race [...] at Sheepshead Bay, N.Y., June 25th, 1890 between Salvator and Tenny / L.M.Licentie
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Today we are launching our new DSM Directive Implementation Tracker.

These tracking pages aim to provide information on the status of the implementation of the new Copyright Directive in all EU Member States. The information contained in each country page was collected by local organisations and individuals in each country and/or from public sources.

This tracker is part of a wider implementation project of COMMUNIA and its members Centrum Cyfrowe and Wikimedia, which includes a range of activities (including our DSM Directive Implementation Guidelines) to make sure that local communities in as many Member States as possible are aware of their national legislative processes and participate in those processes.  

What is the current status of the implementation?

One year after the entry into force of the DSM Directive, the implementation picture is very varied. So far only one member state (France) has adopted one element of the Directive (the new press publishers right) into national law.

There are currently two member states with implementation law proposals tabled in their national parliaments. In France a proposal implementing articles 17 – 22 of the Directive has cleared committee and is awaiting first reading in plenary. In the Netherlands a proposal implementing the entire Directive has just been introduced into parliament and is awaiting reading in the legal affairs committee.Continue reading →

New policy paper on fundamental rights as a limit to copyright during emergencies

Italian Landscape with Umbrella Pines
Adjusting essential uses to new modes of living
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Today, Communia released a policy paper on fundamental rights as a limit to copyright during emergencies. This policy paper has been prepared in the context of the COVID-19 pandemic, which has caused a massive disruption of the normal organization of society in many EU countries. 

In our paper we defend that, in order to transpose education, research and other public interest activities from public locations to private homes during government-imposed lockdowns, we need to be able to rely on the understanding that fundamental rights can, in exceptional situations, function as an external limit to our national copyright systems.

The main conclusions of our paper are the following:

First Conclusion

The educational and research exceptions and limitations provided for in Article 5(3)(a) of the InfoSoc Directive and in Articles 6(2)(b) and 9(b) of the Database Directive, and the public lending exception provided for in Article 6(1) of the EU Rental and Lending Rights Directive are mandatory for Member States, due to the fundamental rights that they internalize, namely those enshrined in Articles 11(1), 13 and 14(1) of the EU Charter of Fundamental Rights.Continue reading →

Open Letter to WIPO: Intellectual Property and COVID-19

De briefschrijfster
Public interest must prevail at time of crisis
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Today, Communia and a group of over 140 other organisations and individuals sent a letter to Director General of the World Intellectual Property Organization (WIPO) Francis Gurry, asking WIPO to ensure that intellectual property regimes support, and do not impede, efforts to both fighting the new Coronavirus outbreak and its consequences.

This diverse group representing researchers, educators, students, and the institutions that support them, acknowledges that a number of countries and some right holders have adopted exemplary measures in this context. These include measures to facilitate access to academic articles, research data, educational materials and other protected works, as well as medicines and medical devices that are subject to exclusive rights.

However, the signatories of the letter also believe that those measures alone are not enough, and that more actions are needed to ensure that the global intellectual property system prioritizes and promotes vital public interests at this critical moment.

Therefore, the signatories urge Mr. Gurry to use his position to guide the member states of WIPO and others in their response to intellectual property issues that the COVID-19 pandemic is raising, namely:

  • Encouraging all WIPO member states to take advantage of flexibilities in the international system that permit uses of intellectual property-protected works for online education, for research and experimental uses, and for vital public interests, such as access to medicine and culture;
  • Calling on all right holders to remove licensing restrictions that inhibit remote education, research (including for text and data mining and artificial intelligence projects) and access to culture, including across borders, both to help address the global pandemic, and in order to minimise the disruption caused by it;
  • Supporting the call by Costa Rica for the World Health Organization to create a global pool of rights in COVID-19 related technology and data, as well as promoting the use of the Medicines Patents Pool, voluntary licensing, intellectual property pledges, compulsory licensing, use of competition laws, and other measures to eliminate barriers to the competitive global manufacture, distribution and sale of potentially effective products to detect, prevent, and treat COVID-19.
  • Supporting countries’ rights to enact and use exceptions to trade secret and other intellectual property rights needed to facilitate greater access to manufacturing information, cell lines, confidential business information, data, software, product blueprints, manufacturing processes, and other subject matter needed to achieve universal and equitable access to COVID-19 medicines and medical technologies as soon as reasonably possible.

You can read the full letter here (PDF). You are welcome to endorse the letter here.

Update 7 April: the letter has been endorsed by more than 400 organisations and individuals in 45 countries. You can see the full list of signatories here.

Update 16 April: the letter has been endorsed by 149 organizations and 359 individuals. The listed organizations represent more than 32.5 million educators, 2.5 million libraries and archives, 45,000 museums, and 200 copyright scholars in 199 countries.

What we hope for WIPO under new leadership: neutrality, fairness, and transparency

Effata Regum Poloniae usque ad Ioannem Casimirum [...]
Improve the quality of policy making at WIPO
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Last week, the World Intellectual Property Organization (WIPO) nominated a new Director General, Daren Tang, who will assume the post on 1 October 2020. Tang is currently the Chief Executive of the Intellectual Property Office of Singapore and has served as the Chair of WIPO’s Standing Committee on Copyright and Related Rights (SCCR) for the past six bi-annual meetings of the committee. 

A growing number of civil society organizations working on copyright reform, including Communia and its members Wikimedia and Creative Commons, participate as permanent observers in the SCCR, for the committee addresses several important issues in the field of copyright. This includes a potential new treaty for the protection of broadcasting organizations; exceptions and limitations to copyright for libraries, museums, archives, educational and research institutions, and persons with other disabilities; and the broader topic of copyright and the changing digital environment. 

WIPO has the potential to affect norm setting in a variety of topics in the field of copyright, not only those currently discussed in the SCCR, but also others that WIPO may introduce via its training and capacity-building activities. In fact, although WIPO is a member state-driven institution and only its 192 country members can decide on the adoption of binding legal instruments or soft laws, the Director General and his senior management team can influence the direction of national law and policy reforms in developing countries through the organization’s technical assistance program.

The impact of the WIPO Secretariat on the work of the copyright committee

The WIPO Secretariat also has a significant impact on the work of the SCCR. In the past year, we have witnessed that it is fairly easy to prejudge the outcomes of an Action Plan on Limitations and Exceptions adopted by the WIPO member states if the WIPO Secretariat carries out the activities foreseen in such a plan in a manner that puts an over-emphasis on the private interests of copyright owners to the detriment of the public interests related with access to knowledge and education. 

Regional events intended to identify “areas for action with respect to the limitations and exceptions regime” can easily be turned into lobbying platforms for copyright owners, if ill-designed. Would-be beneficiaries of the limitations and exceptions regime can easily be prevented from sharing their experiences in such events in a structured manner, if no formal speaking roles are given to them. Furthermore, an international conference intended to discuss limitations and exceptions for cultural heritage and educational and research institutions can be organized in such a manner that the panels are dominated by rights holders and collective management organizations, preventing a fair and balanced discussion on the issues at hand. Continue reading →

Germany sets bad example with the proposed implementation of the new education exception

De verzoeking van Adam en Eva in het paradijs,
A dangerous precedent for user rights
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A few weeks ago, the German government shared its proposal for the implementation of some of the provisions of the new Copyright in the Digital Single Market Directive, including the new EU education exception (Article 5 in the final version of the Directive).

Similarly to what we did with the Dutch proposal, we will provide here an overview of the German proposal to implement locally the new exception. This is part of our effort to track how countries across Europe implement this mandatory exception to copyright for educational purposes.

What changes are introduced to the existing legal framework in Germany?

Germany proposes to implement the new educational exception through an amendment to the existing education exception in Section 60a of the Act on Copyright and Related Rights (see English version here). 

The current exception covers all relevant, digital and non-digital, educational activities undertaken by educational establishments for non-commercial purposes. The exception is technologically neutral and allows the educational establishment’s teachers and students to hold activities in any venues. However, it sets quantity limitations (save for illustrations, isolated articles from the same professional or scientific journal, small-scale works or out-of-commerce works, which can be used in their entirety, the exception only allows the use of up to 15% of a work) and it excludes specific uses of certain types of materials from the scope of the exception, most notably materials exclusively intended for teaching in schools and sheet music. Furthermore, most uses are subject to the payment of compensation to the rightholders.

Under the new proposal, the scope of the education exception would be practically the same. The main difference is that the exclusion of specific uses of certain types of materials would be conditioned to the existence of licenses (easily available in the market and covering the needs and specificities of educational establishments) authorizing those uses. In other words, if such licenses do not exist, then those uses can be made under the exception. 

What is the main flaw of Germany’s proposal?

The main flaw of the proposed education exception is to give preference to licensing offers over the educational exception, with respect to specific uses of certain types of materials, taking away the educators and the learners right to make those uses under the exception as soon as copyright owners start selling licences for said uses.Continue reading →

Implementing the new EU press publishers’ right

La vertu pour guideLicentie
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Last week, we launched our Guidelines for the Implementation of the DSM Directive. This is part of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the new exclusive right granted to EU press publishers by the new Copyright Directive.

For a detailed analysis, please read Communia’s guide on Article 15, authored by Timothy Vollmer, Teresa Nobre and Dimitar Dimitrov.Continue reading →

Implementing the new EU provision that protects the public domain

La vertu pour guideLicentie
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Last week, we launched our Guidelines for the Implementation of the DSM Directive. This is part of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the mandatory provision in the new Copyright Directive that ensures that faithful reproductions of public domain works of visual art cannot be subject to exclusive rights.

For a detailed analysis, please read Communia’s guide on Article 14, authored by Paul Keller, Teresa Nobre and Dimitar Dimitrov.Continue reading →