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

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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 →

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

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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 →

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 →