A step in the right direction: Our response to the targeted consultation on the Article 17 guidance

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Thanks for listening!
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Yesterday we submitted our response to the European Commission’s targeted consultation on the Article 17 guidance. As we have explained previously, with this consultation the Commission was seeking feedback on its initial ideas for the Article 17 implementation guidance, which the Commission intends to publish before the end of the Year. The document is intended to provide Member States with guidance on how to balance the conflicting requirements of Article 17 (preventing copyright infringements while ensuring that legal uses are not affected) when implementing it in their national legislations.

As we said in our initial analysis, we were very happy to note a clear commitment of the Commission to maintain the delicate legislative balance of Article 17 that reflected many of the constructive contributions that have been made by stakeholders across the spectrum during the dialogues. In general, we consider the Commission’s proposal a step in the right direction and this is reflected in our response to the consultation. Unsurprisingly, organisations representing rightholders have a completely different reaction to the proposal and have already started a campaign to convince the Commission into abandoning its approach. Continue reading

Commission consultation on Article 17 guidance: User rights must be protected at upload

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Legitimate uses must be considered at all times
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At the end of July the Commission published a long awaited “targeted consultation addressed to the participants to the stakeholder dialogue on Article 17 of the CDSM Directive“. With this consultation the Commission makes good on its (pre-covid) promise to “share initial views on the content of the Article 17 guidance” with the participants of the stakeholder dialogue. Nestled in-between 18 questions, the consultation document provides a detailed outline of what the Commission’s guidance could look like once it is finalised.

While we have been rather sceptical after the end of the six meetings of the stakeholder dialogue meetings, we are pleased to see that the initial views shared by the Commission express a genuine attempt to find a balance between the protection of user rights and the interests of creators and other rightholders, which reflects the complex balance of the provisions introduced by Article 17 after a long legislative fight.

In the remainder of this post we will take a first, high level, look at the Commission’s proposal for the Article 17 guidance, what it would mean for national implementations and how it would affect user rights.

Two welcome clarifications

With the consultation document the Commission takes a clear position on two issues that were central to the discussions in the stakeholder dialogue and that have important implications for national implementation of Article 17.

The first one concerns the nature of the right at the core of Article 17. Is Article 17 a mere clarification of the existing right of communication to the public, as rightholders have argued, or is it a special or sui generis right, as academics and civil society groups have argued? In the consultation document the Commission makes it clear that it considers Article 17 to be a special right (“lex specialis”) to the right of communication to the public, as defined in Article 3 of the 2001 InfoSoc Directive, and the limited liability regime for hosting providers of the E-commerce Directive. 

What sounds like a fairly technical discussion has wide ranging consequences for Member States implementing the Directive. As explained by João Quintais and Martin Husovec, now that it is clear that Article 17 is not a mere clarification of existing law, Member States have considerably more freedom in deciding how online platforms can obtain authorisation for making available the works uploaded by their users. This should mean that they are not constrained by the InfoSoc Directive. Therefore, mechanisms like the remunerated “de-minimis” exception proposed by the German Ministry of Justice that would legalise the use of short snippets of existing works are permitted and covered by the concept of “authorisation” introduced by Article 17. Continue reading

Article 17 Stakeholder dialogue: COMMUNIA input paper

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Our principles for the the Commission guidelines
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Given the ongoing health emergency, the European Commission’s stakeholder dialogue on the implementation of Article 17 of the Copyright Directive is currently suspended. The 7th meeting of the stakeholder dialogue, which was originally scheduled for Monday of this week and where the Commission was expected to “share initial views on the content of the guidelines”, has been cancelled and it is currently unclear how and when the stakeholder dialogue will be resumed. In the meanwhile, the European Commission is continuing its work on the guidelines.

While we are waiting for news on the future of the stakeholder dialogue we have produced an input paper for the Commission (pdf) that summarises our observations from the stakeholder dialogue so far and formulates a number of principles that the Commission should take into account when drafting its guidelines. In line with our initial principles, the input paper focuses on licensing, transparency and procedural safeguards for users’ rights. The paper builds on the model that we had presented during the last meeting of the stakeholder dialogue

Specifically, we are asking the Commission to include the following in the Article 17 implementation guidelines: 

  • Recommend to national lawmakers to fully explore all legal mechanisms (including collective licensing with extended effect, mandatory collective management schemes and other non-voluntary licensing schemes) for granting OCSSPs authorisation to have in their platforms copyright-protected works and other subject matter uploaded by their users.
  • Require that all ownership claims made in the context of the measures required by Article 17 must be made fully transparent to allow public scrutiny and prevent unjustified removals or blocking by rightholders claiming ownership of works that they do not own.
  • Require that OCSSPs publish statistical information on the number of removal/blocking actions as well as the number of complaints and the resolution of complaints arising as the result of such actions.
  • Requires that in cases other than obvious infringement and in order to prevent automated measures from affecting lawful uses, users must have the ability to override all automated actions before the blocking/removal takes effect.
  • Require that in case of obvious (“prima facie”) infringement uploaded content can be automatically blocked/removed under the condition that uploaders have the ability to easily and effectively challenge such blocks/removals.
  • Require that users must be able to rely on all existing exceptions as grounds for challenging removal/blocking actions and must be able to dispute the ownership claims on which an action is based.

Continue reading

Article 17 stakeholder dialogue (day 6): Hitting a brick wall

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This week saw the sixth meeting of the EU stakeholder dialogue on the implementation of Article 17 of the new copyright directive. This meeting was the first one where the question of how to reconcile the protection of user rights’ with automated filters based on technology that cannot assess the legality of the use of copyrighted works was explicitly on the agenda. From the perspective of the users’ organisations participating in the stakeholder dialogue this is the main question that the stakeholder dialogue (and the guidelines that the Commission will have to issue afterwards) needs to address. 

Unfortunately, Monday’s meeting did not result in a productive discussion about how to protect users’ rights. Proposals made by COMMUNIA and Studio71 on how to strike a balance between the rights of users and the interests of creators and other rightholders were largely ignored by a coalition of major rightholders from both the music and the audio-visual sectors. Working in concert, the representatives of the Hollywood studios (MPA), film producers (FIAFP), commercial television channels (ACT), major record labels (IFPI) and music publishers (ICMP) disputed the fact that there is a tension between protecting users rights and automated blocking, restated their conviction that Article 17 is only about empowering them versus the platforms, and suggested that users should simply trust that rightholders will not block free speech or other legitimate uses. In doing so they have made it clear that they want their interests to prevail at all cost, that users should not be trusted and that for them user rights are something that should exist at their discretion. 

This outcome leaves the European Commission in the difficult position to make sense of the input gathered throughout the previous six meetings and to outline a way forwards. Fortunately it seemed that the Commission is not willing to succumb to the unconstructive behaviour exhibited by rightholders and will take serious its task of finding a balance between users rights and the interests of different types of rightholders. 

A proposals for protecting users’ rights

So how could such a balance look like and what is at stake? One of the key insights that emerged from the previous rounds of the stakeholder dialogue is that even the most advanced content recognition technology is incapable of understanding the context in which works are used. This means that technology alone cannot make the determination if a use is lawful or not. Article 17 requires platforms to take measures to prevent the availability of content that rightholders want to keep off the sharing platforms and, at the same time, to ensure that legitimate uses (such as quotations or parodies) are not affected. This means that no matter how good it is at recognising content, ACR alone cannot meet the requirements of the directive. Continue reading

Article 17 stakeholder dialogue (day 5): It all depends

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Last week Thursday saw the 5th meeting of the Commission’s stakeholder dialogue on Article 17 of the copyright directive. On paper this meeting was the first meeting where the stakeholders had the opportunity to discuss the actual provisions contained in Article 17 of the directive in order for the Commission “to gather evidence, views and suggestions that the services of the Commission can take into account” when preparing its guidelines on the application of Article 17. 

Contractual freedom über alles

In reality (recording available here), the 5th meeting was the meeting where it became clear that the vast majority of represented stakeholders is not interested in constructively contributing to the process and is instead participating in order to actively undermine the stakeholder process. Interventions made by commercial rights holders from the Music and AV sectors, as well as by platforms, focused on demanding maximum contractual freedom and arguing that the Commission’s guidelines should not contain any binding requirements. When asked to provide input for defining core concepts of the directive (such as “best efforts to obtain authorisation” and “best efforts to prevent availability”), most stakeholders limited their contribution to countless variations of “it depends” or theorising about “dynamic concepts”.

While there were some notable exceptions (apart from users organisations, collective management organisations and journalists’ organisations provided substantive input), it can hardly be surprising that both rightholders and big platforms have no interest in substantive guidelines that would offer meaningful safeguards for user rights. Continue reading

Article 17 stakeholder dialogue: What have we learned so far

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This analysis was previously published in two instalments on the Kluver Copyright Blog (part 1, part 2).

As 2020 unfolds, the European Commission’s stakeholder dialogue pursuant to Article 17 of the Directive on Copyright in the Digital Single Market (CDSM directive) enters its third (and likely final) phase. After four meetings that focussed on gathering “an overview of the current market situation as regards licensing practices, tools used for online content management […] and related issues and concerns”, the next two (or more) meetings will finally deal with issues raised by the provisions in Article 17 of the CDSM directive. According to the Commission’s discussion paper for the meetings of 16 January and 10 February 2020, the objective of the third phase “is to gather evidence, views and suggestions that the services of the Commission can take into account in preparing the guidance pursuant to Article 17(10)”. 

In other words, after four meetings that have set the scene, the stakeholder dialogue will now address some of the thorny issues raised by Article 17. These include the key concepts like the best effort obligations to obtain authorisation and to prevent the availability of content (Article 17(4)), as well as the safeguards for legitimate uses of content (Article 17(7)) and the complaint and redress mechanisms available to users (Article 17(9)). In preparation for these forthcoming discussions, it is worth recapitulating what we have learned since the stakeholder dialogue kicked off in October of last year. 

Three takeaways from the stakeholder dialogue so far

After more than 25 hours of discussion (recordings of the four meetings can be found here: 1, 2, 3 and 4), there are three main insights that will likely have a substantial impact on the overall outcome of the stakeholder dialogue. These are the different motivations of different types of rightholders; the technical limitations of Automated Content Recognition (ACR) technologies; and the general lack of transparency with regards to current rights management practices. The first two of these are discussed in this post and the third will be covered in part 2 which will be published shortly. Continue reading

Open letter: More transparency for the Stakeholder dialogue

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Stressing the importance of protecting user rights
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Yesterday COMMUNIA, Liberties, EDRI, IFLA, Save the Internet and 38 other organisations representing users, citizens and creators sent an open letter to the European Commission asking for a more transparent approach to Article 17 stakeholder dialogue that is currently ongoing in Brussels (see our previous posts on the stakeholder dialogue here).

In this letter we are making two demands, one procedural in nature and one on the substance of the discussions. Regarding the procedure we are asking the Commission to commit to publishing a draft of its guidelines for the application of Article 17 of the DSM Directive during the stakeholder dialogue in order to give us (and all other stakeholders) the ability to scrutinise the proposed guidelines and provide the Commission with feedback.

In terms of substance the letter repeats the key demand that users’ organisations (backed by a large number of academics) have been expressing throughout the stakeholder dialogue namely that …

… the guidelines must ensure that the protection of “legitimate uses, such as uses under exceptions or limitations” as required by Article 17(9) of the Directive takes precedence over any measures implemented by online content-sharing service providers (OCSSPs) to comply with their obligations under 17(4) (b) (c). Automated filtering technologies can only be used if OCSSPs can demonstrate that their use does not affect legitimate uses in any negative ways.

The next meeting of the stakeholder dialogue will take place tomorrow and (you will be able to find a web stream here). Follow us on twitter for updates from the meeting (we will also publish a report here later this week).

Article 17 stakeholder dialogue (day 4): it’s all about transparency

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The fourth meeting of the Article 17 stakeholder dialogue took place in the last week before the holiday break. Just like the third meeting, this meeting was dedicated to (more or less) technical presentations on content management technologies and existing licensing practices. In total there were 12 presentations from platforms (Facebook, Seznam, Wattpad), providers of content management tools (Audible Magic, Ardito, Fifthfreedom, Smart protection), rightholders (GESAC, Universal Music Publishing, Bundesliga) as well as by BEUC and the Lumen database.

Filters are context-blind

The day’s presentations largely repeated the lines of arguments different stakeholders had presented during the previous meetings (a recording of the full meeting can be found here). Most notably all providers of content recognition technology confirmed that their technology does not go beyond simple matching of files and cannot understand the context in which a use takes place. Audible Magic summarised this in their opening statement:

Copyright exceptions require a high degree of intellectual judgement and an understanding and appreciation of context. We do not represent that any technology can solve this problem in an automated fashion. Ultimately these types of determinations must be handled by human judgement […]

As we have argued after the third meeting of the stakeholder dialogue, this is an unsurprising but significant insight as it means that current technology cannot be used to automatically block or remove content uploaded by users. 

Platforms don’t trust rightholders

The presentation given by Facebook about Facebook Rights Manager, its in-house content recognition tool, highlighted another problem that such tools are facing: One of the “main challenges” that Facebook is facing with its Facebook Rights Manager tool is that rightholders abuse the tool by claiming rights in works that they do not own. As a result Facebook only makes the most sensitive functionalities (such as automated blocking of uploaded content) available to a small group of carefully vetted trusted rightholders. Continue reading

Article 17 stakeholder dialogue (day 3): Filters do not meet the requirements of the directive

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Last week’s third meeting of the Article 17 Stakeholder dialogue was the first one of what the Commission had referred to as the 2nd phase of the dialogue. After two meetings of introductory statements by various stakeholders (see our reports here and here), the third meeting consisted of a number of more in depth technical presentations on content recognition technologies and on existing licensing models (Video recording available here). 

The morning session saw presentations from three technology providers. YouTube presented its own Content ID system, PEX presented its platform independent attribution engine and finally Videntifier showed off its video and image matching technology

The biggest part of the discussion in the morning was centered around understanding the way YouTube’s content ID system works and how it relates to copyright (hint: it’s complicated). The overall impression that arose from the discussion is that very few participants actually understand how content ID works (and those who do, like the big record labels, don’t seem to be interested in talking about it). The fact that the Commission was among those asking questions to get a better understanding of the inner working of content ID is rather striking in the context that evidence based lawmaking was supposed to be one of the priorities of the Junker commission. So far the stakeholder dialogue seems more like an exercise in legislation based fact finding

While many aspects of Content ID remained opaque, one thing became clear though-out the three presentations: none of the presented technologies can do more than matching content in user uploads. None of the technologies presented can understand the context in which a use takes place and as a result they are incapable of detecting if a use is covered by an exception or not. In the words of the technology providers (lightly edited for clarity): Continue reading

Academic statement on safeguarding user freedoms in implementing Article 17

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51 academics say: if in doubt - don't filter
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Yesterday 51 leading European copyright scholars published a statement on “Safeguarding User Freedoms in Implementing Article 17 of the Copyright in the Digital Single Market Directive“. The statement is intended as input into the ongoing stakeholder dialogue. It focuses on the interplay between user rights and the filtering obligations established by Article 17. From the Kluwer Copyright blog:

Against this backdrop, a group of European academics (including the author of this post) has drafted a document with recommendations on user freedoms and safeguards included in Article 17 of the DSM Directive – namely in its paragraphs (7) and (9), to be read in the context of the aforementioned stakeholder dialogues. The recommendations are divided into three sections: on promoting licensing and limiting preventive measures; on exceptions and limitations in Article 17 (user freedoms); and on minimizing the risks of broad filtering and over-blocking (user safeguards). Despite the controversial nature of the topic, the recommendation has already been endorsed by around 50 European academics in this area, which is a testament to its balanced approach. Our intention is that these recommendations and interpretative guidelines are taken into consideration by the Commission, stakeholders, and Member States in their discussions on national implementations of Article 17 DSM Directive.

Based on a close reading of paragraphs 17(7) and 17(9), the academics show that Article 17 requires online platforms (OCSSPs in the language of the directive) to prioritise protecting users rights over blocking content. This statement provides strong support for our positions in the stakeholder dialogueContinue reading