CJEU hearing in the Polish challenge to Article 17: Not even the supporters of the provision agree on how it should work

Echtpaar bij de dorpsrechtbank van Puiterveen
Will the CJEU strike down Article 17?
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On Tuesday, November 10, the Court of Justice of the European Union (CJEU) heard case C-401/19. This case is a request by the Polish government to annul the filtering obligation contained in Article 17 of the Copyright in the Digital Single Market (DSM) Directive on the grounds that it will lead to censorship and will limit the freedom of expression and the freedom to receive and impart information guaranteed in Article 13 of the EU Charter of Fundamental Rights (Charter).

The defendants in this case are the European Parliament and the Council of the European Union. In addition, the European Commission and the governments of France and Spain intervened in the case on the side of the defendants. Advocate General Saugmandsgaard Øe was also present at the hearing.

Even for astute followers of the discussions around the implementation of Article 17, the hearing contained a number of surprises. While several Member States have been soldiering on with their national implementation proposals with little regard for the fundamental rights implications of Article 17, the hearing showed that the Court is taking Poland’s complaint very seriously and that the compliance of the contested provisions of Article 17 with the Charter is far from evident. Frequent reference was made during the hearing to the recent opinion of Advocate General Saugmandsgaard Øe in the YouTube and Cyando cases, which is highly critical of extensive obligations on platforms to police the copyright infringements of their users.

On the face of it, the case is about Poland’s request to annul Articles 17(4)(b) and (c) of the DSM directive. Poland argued its case, which essentially rests on the observation that while not explicitly mandating them, Article 17(4)(b) and (c) effectively require platforms to implement upload filters because there are no other effective means to comply with the obligations contained therein. Poland argues that this will lead to censorship and will limit the freedom of information of the users of online platforms.

According to Poland, the key problem with the directive is the move away from active participation of rightholders (as initiators of removal requests in the context of notice and takedown procedures) and instead handing the responsibility of removing infringing uploads over to platforms who will have to develop private enforcement systems to avoid liability for copyright infringement. Because they are not facing any comparable risk when they limit user rights by blocking access to legal content, this creates strong incentives for over-blocking. This in turn will result in censorship and violation of the fundamental rights to freedom of expression and information under the Charter. Consequently, the problematic parts of Article 17 should be annulled by the Court.

All other parties intervening in the case objected to this line of argument and stated that in their view Article 17 does not violate any fundamental rights. However, they presented strikingly contradictory interpretations of what Article 17 actually requires of platforms. There are two distinct lines of argument: The Commission, the Council and the European Parliament argued that that Article 17 contains enough internal safeguards to prevent users’ fundamental rights from being unduly limited. On the other hand, France and Spain argued that some limitations of fundamental freedoms are justified by the objective that Article 17 seeks to achieve. Continue reading

The Copyright Directive challenged in the CJEU by Polish government

Effata Regum Poloniae usque ad Ioannem Casimirum [...]
An independent court will assess the Directive
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Copyright not only regulates the interests of creators and intermediaries, but also applies to users’ rights. This was one of our main arguments in the discussion on Article 17 of the new copyright directive, which was often disregarded by our opponents. In our opinion Article 17 is not well-balanced and creates threats to freedom of expression. Such an assessment is shared by others: the UN Special Rapporteur on Freedom of Expression, non-governmental organizations dealing with digital rights, and a significant part of the academy. Now the very same objections will be evaluated by Court of Justice of the European Union.

Last week, the Government of the Republic of Poland filed a challenge to the new Directive on Copyright in the Digital Single Market, specifically Articles 17(4b) and 17(4c). The Minister of Culture and National Heritage explained:

“in our opinion this mechanism introduces solutions with preventive censorship features. Such censorship is forbidden by both the Polish Constitution and EU law – the Charter of Fundamental Rights guarantees freedom of expression.”

Interestingly, by filing the charge, the Polish government fulfilled a political promise made during the recent electoral campaign. At that time, Polish Prime Minister Mateusz Morawiecki tweeted that the new law is “a disproportionate measure that fuels censorship and threatens freedom of expression.”Continue reading

Summary of 2015 amendments to the Polish Copyright Act

Gdynia, the Polish winter sea
The amendment to the Polish Copyright Act is a step in the right direction, but...
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The summary has been written by Adam Karpiński and the public policy team of Centrum Cyfrowe.

In October 2015, Poland completed the process of amending the national Act on Copyright and Neighbouring Rights. Its aim was to adapt Polish law to the EU requirements:

  1. the Directive 2011/77/EU (the Directive amending the Directive on the term of protection of copyright and certain related rights);
  2. the Directive 2006/115/EC (the Directive on rental right and lending right); and
  3. the Directive 2012/28/EU (the Directive on certain permitted uses of orphan works).

Additionally, the amendment aimed at clarifying or modernising some other rules, including copyright exceptions and the regulation of ‘domaine public payant’ (i.e. royalties for the use of works in the public domain).

The amendment was the result of a consultation and legislative process that lasted over two years. During this time, the Ministry of Culture and National Heritage initiated a series of meetings on key reform issues within the framework of the Copyright Forum (Forum Prawa Autorskiego) and gathered feedback from various entities, including Centrum Cyfrowe. This process was characterised by a strong presence of non-governmental organisations, and generated some heated debates between NGOs and representatives of rights holders. Continue reading

Polish Copyright Collection Societies and Their Financial Data

Fruits de l'Industrie et de l'Economie
Royalties: years may pass from collection to distribution
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Copyright Collection Societies (CCSs) are organisations traditionally set up by authors, performers, and other kinds of rightholders to collectively manage their rights. Nowadays, there are more than 250 CCSs in the EU. Copyright Collection Societies collect around €6 billion in royalties in the EU every year. The vast majority of this income feeds into the approximately 70 EU CCSs managing authors’ rights, representing over one million authors. Most of this income is derived from musical creations — more than 80% in the case of authors’ societies.

Since the role of CCSs in collective rights management and shaping of copyrights is crucial, the European Union adopted the Directive 2014/26/EU on collective rights management and multi-territorial licensing of rights in musical works for online uses in February 2012 (see our previous coverage here). The transposition date for Member States was April 2014. The directive sets up a common framework for financial reporting. CCSs have to draw up and publish an annual transparency report including detailed accounts, financial information, and a special report on the use of the amounts deducted for purposes of social, cultural, and educational services.

Poland is an example of member state that introduced the obligation of disclosing the CCS financial data long before the directive implementation deadline: the first reports were submitted in 2011. Centrum Cyfrowe, a member organization of COMMUNIA, conducted the analysis of the financial and narrative reports of Polish CCSs for the years of 2010-2013. The CCSs were obliged to disclose these reports for the study. Continue reading

Poland restricts access to digitized cultural heritage

Soon the most valuable digital works of art and culture may be available all around Europe, free of charge, licenses, watermarks, and in open, machine-readable formats.  Together with their metadata they can be used to not only promote rich heritage of our culture, but also to build innovative applications, web services and boost the creative economy all across the Europe. This is the promise made by the European Union, as contained in the new Directive on the re-use of public sector information.

But establishing a single framework, which enables the cross-border offer of products and services is not an easy thing. According to the last report of the PSI Group, Member States are struggling with many challenges while implementing the Directive into domestic law. As might be expected, the correct choice of licensing, charging and redress mechanisms are especially hard to solve.

In the recent Communia policy paper on the re­use of public sector information in cultural heritage institutions, we were  concerned that if Member States are not careful, the implementation of the changes required by the new Directive could do more harm than good when it comes to access to digitized cultural heritage in Europe. Work on the implementation of the Directive into Polish law shows that this scenario can happen in Poland.

In November 2014, Poland has published a draft proposal of the new bill, which assumes that documents held by cultural heritage institutions are within the scope of the Directive only if they are in the public domain, either because they were never protected by copyright or because copyright has expired.

The problem, therefore, lies in the fact that the remaining resources, even if the institution owns the copyright, have been excluded from the scope of the proposed law. The Ministry of Culture and Digital Heritage, which has been in favour of this very narrow reading of the Directive, believes that it should not apply either to works created by employees of institutions or to works, for which third parties have transferred rights to cultural institutions. What does this mean in practice?

Most importantly, re-use rules will not apply to such important information as descriptive metadata, bibliographic and catalog data. Without metadata and descriptions heritage resources will become useless for those wanting to re-use digital cultural resources. Similarly, public cultural institutions – for example modern art galleries – will still be able to restrict access to the information that they hold, even though it has been produced with public funds.

And such an implementation is in our opinion [see our policy paper p. 4-6]  contrary to the very principle that inspired both the 2003 and 2013 Directives and could lead to the creation of unnecessary hurdles to the re­use of public sector information.

What is maybe even worse, Polish cultural institutions will also be able to impose additional conditions – restricting commercial use (promotion or advertising) or allowing only certain forms and scope of reuse. Even for works that are in the public domain.

This implementation has the combined support of collective management organizations, museums (which in general are much more conservative than libraries in their approach towards digitization and sharing of cultural objects) and the Polish Ministry of Culture and Digital Heritage. One of the concerns raised is that the private sector will be able to build competitive services, museum catalogues or images banks, to those provided by the museums. But wasn’t it the idea of new PSI Directive? In general, it is surprising to see these organizations favour an approach that limits as much as possible reuse of cultural works – since such sharing is explicitly defined as part of their public mission.

All around the world, public domain is treated as the information that is free from intellectual property barriers. Anyone can use and reuse it, remix, combine and translate without obtaining permission. For commercial and non-commercial purposes. But no one can ever own it. In theory. Observing the legislative process in Poland, it becomes clear that in some countries the implementation of the new PSI Directive can indeed not only do more harm than good with regard to access to cultural heritage, but even threaten the idea of the public domain.

We hope that ultimately the Ministry of Administration and Digital Affairs – which is responsible for drafting the bill – will propose a law that supports a modern approach to digital cultural heritage and protects the Public Domain.  And that with time the Ministry of Culture and Digital Heritage will adapt Poland’s cultural policy as well so that allowing access and reuse is seen as part of the public mission, and not as threat to culture.