The Italian transposition of the CDSM Directive: A missed opportunity?

A Coastal Ruin in Italy
Italian implementation must include Article 14!
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On April 20, 2021, the Senate of the Italian Republic gave its final approval to the Law which authorises the transposition of the 2019 Copyright in the Digital Single Market (CDSM) Directive in the Italian Law. In this Guest Article Deborah De Angelis (Creative Commons Italy) and Federico Leva (Wikimedia Italy) recap the Italian process of transposition so far, outlining the next steps of the procedure and taking a closer look at the implementation of the public domain provisions (Article 14) of the Directive.

What has happened so far?

The freshly approved European Delegation Law is a legislative act that authorises and guides the Italian Government to transpose EU Directives and framework decisions into the Italian National Law. Such a Delegation Law must be proposed by the Government at the beginning of each year, with the approval of the European Delegation Law by both the Senate of the Republic and the Chamber of Deputies often taking a long time and occasionally exceeding a year.

Once the Delegation Law is approved, the Government can issue the related Legislative Decrees in order to change the existing laws and adapt them to the European rules. Since the approval of the delegation law and until the adoption of the Legislative Decrees, no change in law actually happens. Such Legislative Decrees are very quick to set into motion, as the Parliament has a few days only to object them; however, sometimes it happens that the Government waits a long time before issuing the Decrees, or it even neglects to issue any of them, forcing the  Parliament to reiterate the Delegation Law  a year later.

Between April 28, 2020 and June 8, 2020, various stakeholder organizations  were listened by the 14th Standing Committee (European Union Policies) during a series of informal hearings, and the related documents and proposals were published by the Senate.

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Video Recording of COMMUNIA Salon on the German proposal to implement Article 17

On Thursday we held the second COMMUNIA Salon in 2021. This time we discussed the German governments’ proposal for implementing the controversial Article 17 of the CDSM Directive. Taking place less than three months before the implementation deadline for the directive, this edition zoomed in on one of the most advanced legislative efforts to implement the directive (the Netherlands, which adopted their implementation law at the end of last year is the only Member State that is further along in the legislative process). The discussion was kicked off by a presentation by Dr Thomas Ewert and Dr Martin Bittner from the German Federal Ministry for Justice and Consumer Protection, who have been responsible for drafting the legislation. Their introduction presentation, focusing on the legislative history of the draft and its core mechanism, can be found between 02:30 and 28:50 in the video recording: 

One highlight of the presentation was the revelation that the Ministry has also filed an amendment to its own proposal, that expands the transparency provisions contained in the proposal. The proposed amendment would allow access to “data on the use of procedures for the automated and non-automated recognition and blocking of content to authorised parties” for scientific research purposes. In the light of our repeated calls for more transparency when it comes to the use of automated content recognition, this is a small but significant improvement of the proposal. 

The initial presentation was followed by perspectives from Marco Pancini (YouTube), Xavier Blanc (AEPO-ARTIS) and Julia Reda (GFF) who highlighted different aspects of the legislative proposal. Speaking from the perspective of large pan European platforms Marco Pancini expressed concerns about the variation of legislative approaches in the Member States with Germany marking one end of the spectrum. According to him this will lead to fragmentation of the digital single market and create substantial compliance burdens for all types of platforms.

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COMMUNIA salon on the German proposal to implement Article 17

COMMUNIA Salon: The German proposal to implement Article 17 revisedLicentie

On Wednesday, the 17th of March, we will be organising the next edition of our virtual COMMUNIA Salon. This time we will  take another look at the  German implementation proposal for Article 17 of the DSM directive: On the 3rd of February the German government formally adopted its implementation proposal which is now headed for a first reading in the German parliament (Bundestag) later this month. We will examine how the proposal differs from the original implementation proposal that we discussed in July of last year, and what we can learn from the German approach to implementing Article 17. 

For this edition of the COMMUNIA Salon we will be joined by Dr. Martin Bittner und Dr. Thomas Ewert of the German Ministry for Justice and Consumer Protection (BMJV) who will present the implementation proposal. We will have reaction from Julia Reda (Project lead control © at GFF and former MEP), Marco Pancini (Youtube) and (Xavier Blanc (AEPO-ARTIS). The presentations will be followed by an informal question and answer session and concluding remarks by Paul Keller (COMMUNIA/Open Future). The Salon will be moderated by Teresa Nobre. 

The German proposal has been adopted at an interesting time. While the Commission is finalising its implementation guidance, the German proposal shows what the user rights-preserving implementation foreseen by the Commission in its draft guidance could look like in practice. The proposed German implementation of Article 17 contains specific mechanisms designed to ensure that platforms comply with the requirement in Article 17 that legal uploads must not be blocked. While the proposal is not without flaws, it can nevertheless serve as an example for other Member States looking for a way to implement Article 17 in a user rights-preserving way

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.

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

Rechtvaardigheid (Justitia)
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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DSM Directive implementation update: more proposals to protect users’ rights

Gennaro
Five months to go ...
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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. 

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

Putti spelen op een wip
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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Austrian Article 17 proposal: The high road towards implementation?

Berglandschap met mensen op een weg
Reconciling the internal contradictions of Art. 17
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So far there we have seen two different approaches to implementing Article 17 into national copyright legislation. On the one hand, we have countries like France, the Netherlands, or Croatia who have presented implementation proposals that stick as closely as possible to the language and the structure of Article 17 while implementing its provisions within the structure of their existing copyright acts. In doing so these implementations essentially kick the can down the road with regards to figuring out how the conflicting requirements to filter (17(4)) and requirements to ensure that legal uploads are not filtered out (17(7)) can be reconciled. In the end, none of these implementation proposals offer a convincing mechanism for ensuring that creators get remunerated and that users’ rights are not violated.

On the other hand, we have the German approach that proposes to implement Article 17 via a separate “copyright-service-provider law” (“Urgeberrechts Diensteanbieter Gesetz”) that substantially departs from the language in an attempt to capture the structure and effet utile of the directive.

The German implementation proposal focuses on using the room for legislative discretion left by the directive to give practical meaning to the abstract requirements to protect user rights contained in the directive. It also adds measures aimed at ensuring that individual creators directly benefit from the new rules. As a result, the German implementation proposal is much closer to the legislative compromise struck by Article 17 than any of the more literal implementation proposals that have emerged so far.

Over the past few months, the German implementation proposal has come under intense pressure from exclusive rightsholders and some platforms who argue that the proposed approach does not adequately reflect the provisions of Article 17. Besides, rightsholders have also claimed that it violates national and international copyright law in multiple ways. A central argument of the opponents of the German implementation proposal is the claim that it strays too far from the text of the directive.

Given this background, it is interesting to see the first Austrian implementation proposal (that was circulated to stakeholders for feedback earlier this week) take a middle road between the two existing approaches. The Austrian implementation proposal does integrate the provisions from Article 17 directly into the text of the existing Austrian copyright act, thus deviating from the structure of Article 17, but mostly stays very close to the text of the directive. At the same time, it takes up key elements first introduced in the German approach: The non-waivable direct remuneration right for authors and performers, the protection of minor uses from automated filters, the ability for users to flag uploads as legitimate, and the ability for users’ organizations to act against platforms that engage in structural over-blocking. The result is a proposal that (similar to the German one) focuses on strengthening the position of creators and users, instead of leaving it up to platforms and large corporate rightsholders to set their own rules.

The Austrian proposal in more detail.

So let’s look at the Austrian proposal in more detail: Similar to the German proposal it introduces a direct remuneration right for authors and performers that will ensure that independent of existing contractual arrangements with publishers and other intermediaries, creators will be remunerated for the use of their works on platforms. As in the German proposal, this direct remuneration right can only be exercised via collective management organizations, which means that it will primarily benefit creators in sectors with existing collective management structures. In the German discussion this direct remuneration right has been strongly criticized by both platforms, who would prefer not to pay for obvious reasons) and by intermediary rightsholders, who prefer to control how much (or rather little) of their licensing revenue should go to the actual creators. Given that the need to make sure that creators benefit from the use of their works on platforms was the main argument for getting Article 17 in the first place, the fact that rightsholders are now trying to undermine the proposed direct remuneration right is more than a little bit hypocritical. Continue reading

Taming the upload filters: Pre-flagging vs. match and flag

Raderboot
How to limit the damage filters can do
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One of the most important elements of any implementation of Article 17 will be how platforms can reconcile the use of automated content filtering with the requirement not to prevent the availability of legitimate uploads. While most implementation proposals that we have seen so far are silent on this crucial question, both the German discussion proposal and the Commission’s consultation proposal contain specific mechanisms that are intended to ensure that automated content filters do not block legitimate uploads, and that uploads are subject to human review if they are not obviously/likely infringing. 

In order to achieve this objective, the German discussion draft published in June relies on the idea of “pre-flagging”: users would be allowed to flag uploads containing third party works as legitimate. Platforms would then be prevented from automatically blocking pre-flagged uploads unless they determine that the flag is incorrect because the upload is “obviously infringing”. 

By contrast, the Commission’s implementation guidance consultation proposes a “match-and-flag” mechanism: if upload filters detect the presence of a third party work in an upload and the use is not deemed to be “likely infringing”, then the uploader is notified and given the ability to state that the use is legitimate. If the user flags the upload as legitimate, the platform will have to initiate a human review of the upload, which remains available from the moment of upload until the review has been concluded. This type of mechanism was first suggested by a group of copyright academics in October of last year. It is also at the core of the proposal that we had presented during the last meeting of the stakeholder dialogue.

Both approaches provide a mechanism that limits the application of fully automated upload filters (while implicitly acknowledging the fact that many platforms will deploy upload filters). In the Commission’s proposal, filters are limited to making a pre-selection (“is the upload likely infringing?”); in the German proposal, they can only operate on unflagged content and to filter out “obviously incorrect” pre-flags.

Convergence on “match-and-flag”?

Both approaches have been criticised by rightholders, who claim that they undermine the “original objective of the directive” without providing alternative proposals on how automated filtering can be reconciled with the requirement not to block legitimate uploads. In addition, the German discussion proposal has also been criticised by platforms such as Google and Facebook. The platforms are arguing that giving users the ability to pre-flag every single upload would be impractical and would likely lead to substantial numbers of unnecessary (where the content in question is already licensed) or unjustified (users making excessive use of the pre-flagging tool) pre-flags, which would make such a system impractical to operate at scale. Continue reading

Implementation update: French Parliament gives carte blanche, while the Netherlands correct course.

Le Francois L'Hollandois
Dutch parliament strengthens user rights
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Back in January of this year, we noted how both the Netherlands and France (at that point the only Member States that had presented proposals to implement Article 17) had proposed selective implementations of Article 17 that ignored crucial user rights safeguards. A lot has happened since January, but yesterday both Member States took further steps in their national implementations. And this time the two Member States are moving in opposite directions: 

While the Dutch government has reacted to criticism from civil society and members of Parliament by fixing some of the most obvious shortcomings of its implementation law, the 2nd chamber of the French Parliament has adopted a law that gives the French government the power to implement Article 17 (and the rest of the provisions of the DSM directive) however it sees fit. 

Netherlands: a course correction

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

Video recording of the COMMUNIA Salon on the German proposal to implement Article 17

Last week on Thursday we held the third virtual edition of our COMMUNIA Salon. This edition focussed on the recent German proposal to implement Article 17 of the DSM Directive and included contributions by John Henrik Weitzmann (Wikimedia Deutschland), Julia Reda (Gesellschaft für Freiheitsrechte), Martin Husovec (London School of Economics) and Paul Keller (COMMUNIA). If you have missed the event you can watch a recording of the presentations and the subsequent discussion here: