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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Video recording of the COMMUNIA Salon on the Sui Generis Database Right in the Data Act

On Wednesday the 2nd of March we hosted a Salon on the treatment of the Sui Generis Database Right (SGDR) in the European Commission’s proposal for a Data Act.

Moderated by Paul Keller, the Salon started with Krzysztof Nichczynski (DG Connect, European Commission), who shared insights into the Commission’s thinking on the Sui Generis Database Right and on how it relates to the policy objectives related to increasing access to IoT data and Business to Government data sharing in the Public Interest. This was followed by a presentation by Martin Husovec (Assistant Professor of Law at LSE), who raised a number of concerns about the Commission’s approach and pointed out that there is a need for a more holistic approach to the Sui Generis Database Right. 

After this Felix Reda (former MEP & Project Lead control © at GFF) shed some light on the problematic nature of the Sui Generis Database Right by highlighting ongoing legal actions against open data activists in Germany that are facing civil and criminal liability for allegedly infringing the SGDR covering publicly produced geo-information. In the final Intervention Teresa Nobre (COMMUNIA) expressed our disappointment that the Commission has not conducted a more substantial review of the Database Directive and re-iterated COMMUNIA’s position: that the Sui Generis Database right should be repealed.

The discussion was followed by a Q&A session with the participants.

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).

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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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. Felix 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.

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 Felix 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

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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 Felix 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.

COMMUNIA salon on the role of ex-ante user rights safeguards in implementing Article 17

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On the 26th of January at 1530 (CET) we are hosting the first COMMUNIA salon of 2021. This edition will focus on the most controversial question of the discussions surrounding the implementation of Article 17: the need to introduce ex-ante user rights safeguards in national implementations of the directive, to ensure that legitimate uses of third party works cannot be automatically blocked. 

In the discussions over the past year the need for ex-ante user right protections has become apparent. In its targeted consultation, the Commission has made it clear “that it is not enough […] to only restore legitimate content ex post” and, in the CJEU hearing in Case C-401/19, the Commission and the Council have argued that the requirement not to prevent the availability of legitimate uploads takes precedence over the requirement to make best efforts to prevent the availability of works that rightsholders want to keep off a platform. 

By now three Member States have made implementation proposals that include such ex-ante safeguards. Germany and Austria have put forward draft laws that introduce “minor use” thresholds and allow users to pre-flag legitimate uploads. Finland has proposed a “blocking mechanism” that would require rightsholders to review uploads containing their works before they can issue a blocking request. 

During the upcoming COMMUNIA salon, we will be discussing these proposals with Felix Reda (former MEP and project lead at GFF), Viveca Still (Senior Copyright Advisor, Ministry of Culture, Finland), Marco Giorello (Head of Copyright Unit, European Commission) and Tobias Holzmüller (General Counsel, GEMA). The Salon will be moderated by Alek Tarkowski (COMMUNIA/Open Future). 

The presentations will be followed by an informal question and answer session and concluding remarks by Paul Keller (COMMUNIA/Open Future).

This event is open for everyone to attend and will be held on Zoom. In order to ensure smooth participation we request participants to register beforehand. Registered participants will receive login information ahead of the event.

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), Felix 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: