The German Model to Protect User Rights when implementing Article 17

Rechtvaardigheid (Justitia)
Finding balance with exceptions, pre-flagging and abuse sanctioning
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Last week, Germany’s Ministry of Justice unveiled its proposal to implement Article 17 of the new Copyright Directive. In this post, we will look into the draft implementation in more detail, to understand how this proposal aims to protect user rights by:

  • Making it easier for platforms to comply with the “best efforts” obligation to obtain authorization to publish their users’ uploads;
  • Introducing a new exception covering minor uses of copyrighted content, which works as a fallback mechanism in the absence of authorization;
  • Allowing users to override blocking/removal actions, by pre-flagging lawful uses;
  • Allowing lawful content to stay up until human review and pausing the liability of platforms until a decision has been made;
  • Sanctioning abusive behaviour by platforms, rightholders and users.

Complying with the “best efforts” obligation to obtain authorization

Under Article 17, platforms are deemed to carry out a copyright-restricted act when they give public access to copyrighted content uploaded by their users and, as a consequence, they must make “best efforts” to obtain an authorization to perform such acts. That authorization can hypothetically be granted through various means:

  • directly by the copyright owners via individual licensing agreements (as mentioned in Article 17(1) second para.,) or
  • by collective management organizations via collective license agreements, or
  • by operation of law, if the national lawmakers decide e.g. to turn this exclusive right into an exception or limitation to copyright subject to compensation.

The implementation proposals that we have seen so far in other countries have limited themselves to the traditional individual licensing mechanism. This is of course problematic because individual licenses alone cannot cover the countless protected materials in existence and user rights will be at greater risk if the platforms have to block content at upload than if they obtain authorization to have that content uploaded to their platforms.

Germany had stated, when the Directive was approved, that it would explore further legal mechanisms (e.g. exceptions and limitations and collective licenses) to grant those permissions to platforms. The draft text now published delivers on those promises and introduces some welcoming innovation.

The proposed text starts by saying that the platforms need to make “alle Anstrengungen” (“every effort”) to acquire those rights by contract. The use of the wording “every effort” shall not, however, be interpreted as meaning anything else other than “best efforts”, according to the explanatory memorandum. In fact such obligation is considered to be fulfilled when the platform accepts a licensing offer made by a rightholder or when licenses are available through a domestic collective management organization (§4/1). Such contractual offers or collective licenses must apply to works typically uploaded to the platform, comprise a representative repertoire, cover the territory of Germany, and enable the use on appropriate conditions (§4/2).

A new de minimis exception that applies to the acts of platforms and noncommercial users

When, despite making the above-mentioned effort, the platform was not able to obtain an authorization, the draft text provides a fallback mechanism: it partially turns the new exclusive right into a remunerated exception, which covers minor uses of copyrighted content (§6 and §7/2). Continue reading

COMMUNIA Salon 2020/3: The German proposal to implement Article 17 – A broken promise or a way forward?

COMMUNIA Salon 2020/3: The German proposal to implement Article 17Licentie

On Thursday, the 2nd of July, we will be organising the next edition of our virtual COMMUNIA Salon to discuss the new German implementation proposal for Article 17 of the DSM directive. For this event we will be joined by Julia Reda (Project lead control © at the GFF and former MEP), John Hendrik Weitzmann (General Counsel at Wikimedia Deutschland) and Dr. Martin Husovec (Assistant Professor, Department of Law, London School of Economics). 

As we have written in our initial reaction, the German proposal is the first serious attempt by a member state to implement Article 17 of the directive in a way that preserves the precarious balance between the rights of users and creators. Where previous implementation proposals have limited themselves to (selectively) transposing the provisions of the directive, the German Ministry of Justice has presented a proposal that adds a number of interesting (and potentially controversial) additional provisions, which seem to be designed to strengthen the position of both users and individual creators. These include the addition of a remunerated de-minimis exception intended to safeguard common types of so-called “user generated content”, the ability for uploaders to “pre-flag” legitimate uses of protected works in their uploads, and the addition of a direct remuneration rights intended to ensure that individual creators benefit from the new legal regime.

With this proposal the German government presents an alternative vision for how Article 17 could work in practice, which could serve as a model for other member states when implementing the directive. During our Salon we will hear first reactions from civil society stakeholders and analyse the legal underpinnings of the more innovative elements of the proposal, such as the proposed de-minimis exception. The presentations will be followed by an informal question and answer session.

The Salon is open for everyone to attend and will be held on Zoom. Join us on Thursday, the 2 of July, at 1530 CET, by registering here. Registered participants will receive login information ahead of the event.

Article 17 implementation: German proposal strengthens the right of user and creators

Rechtvaardigheid (Justitia)
A more balanced way to implement Article 17
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It speaks to the complexity of the discussion about Article 17 of the Copyright in the Digital Single Market directive that the new German implementation proposal is at the same time a broken promise and something that sets a positive example for the other Member States. The measures to implement Article 17 unveiled today as part of a wider proposal for implementing a second set of provisions of the directive (which we will discuss in a follow up post), do not manage to keep the earlier promise to avoid the use of upload filters and instead embrace their use within certain limits. This will almost certainly be a major point of political controversy within Germany.

But seen from the other 26 EU member states this broken promise will likely be overshadowed by the fact that the German government is setting an example for fully using the room for legislative discretion left by the directive to include a number of significant protections for users together with measures aimed at ensuring that individual creators directly benefit from the new provisions. In doing so the German implementation proposal is the first proposal that does not limit itself to (selectively) transposing the provisions of the directive into national law. As a result of this, the German implementation proposal is much closer to the legislative compromise struck by Article 17 than any of the other implementations that we have seen so far.

The implementation proposal (which represents the position of the Ministry of Justice and still needs to be endorsed by the government as a whole) proposes to implement Article 17 in a new law that is separate from the main Copyright Act. This new “Gesetz über die urheberrechtliche Verantwortlichkeit von Diensteanbietern für das Teilen von Online-Inhalten” (UrhDaG) follows the overall logic of Article 17 in making OCSSPs first liable for infringements by their users and then requiring them to either license or take measures to prevent the availability of infringing works to limit their liability.

To ensure the balance of the resulting provision the proposal adds a number of provisions aimed at safeguarding the ability of users to freely share and receive information and for creators to be remunerated for such uses of their works. These measures include: Continue reading

Video recording of the COMMUNIA salon on 18 June 2020

Last week on Thursday we held the second virtual edition of our COMMUNIA Salon. This edition focussed on the role of flexible exceptions in the context of Article 17 of the Copyright in the Digital Single Market Directive and the role that a broad interpretation of the concept of pastiche can play in preserving users’ freedom of creative expression. If you have missed the event you can watch a recording of the presentations and the subsequent discussion here:

The salon was kicked off by Teresa Nobre who discussed the importance of flexible copyright exceptions and highlighted the recent developments in the jurisprudence of the CJEU that has gradually started to recognise exceptions as expressions of certain fundamental rights. In the following presentation Paul Keller discussed the tension between mandatory exceptions and de-facto mandatory filters in Article 17 and highlighted that the provisions dealing with exceptions remain at the center of the discussion in the Commission’s stakeholder dialogue on the implementation of Article 17.

In the second part of the event Prof. Martin Senftleben talked about Article 17, Pastiche and Money for Creators. As part of his presentation Prof. Senftleben reminded the audience about the original objective of Article 17 to make large online platforms pay for so-called “user generated content” in order to improve the income position of creators and other rightholders. According to Prof. Senftleben, the licensing based approach introduced by Article 17 will fail to achieve this objective since it inherently favours large rightholders who have the means to negotiate with large platforms. Article 17 as such does not ensure that individual creators benefit from any additional revenues secured by creative industry intermediaries. Continue reading

How Filters fail (to meet the requirements of the DSM directive)

Sakkamettant l'eau au sir (filtre)
Three common failure modes of upload filters
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Article 17 of the DSM directive establishes that Online Content Sharing Service Providers (OCSSPs) are liable for copyright infringing uploads by their users unless they either obtain a license for the use of such content, or take a number of measures designed to prevent the availability of such content on their platforms. While the directive never explicitly talks about filters or automated content recognition (ACR) systems, it is assumed by all sides of the debate that, in order to meet this obligation, platforms have little choice but to implement ACR-based filtering systems that will scan all user uploads and block or remove uploads that contain works that have been flagged by their rightholders.

This de-facto requirement to implement upload filters is – by far – the most controversial aspect of the entire copyright directive and it continues to dominate the discussions about the implementation of Article 17 into national legislation.

In this context, it is important to remember that the use of such filters is not new and that their functioning can already be observed in practice. What is new, however, is the de-facto requirement for OCSSPs to implement filters as well as a number of requirements that OCSSPs need to meet to ensure that any measures (including filters) implemented by them are not infringing on the rights of users. This includes the requirement that any such measures “shall not result in the prevention of the availability of works or other subject matter uploaded by users, which do not infringe copyright and related rights, including where such works or other subject matter are covered by an exception or limitation“.

In other words, one of the most important contributions of the DSM directive is that, for the first time, it establishes conditions that need to be met by automated upload filters.

As we have argued many times before, these conditions present a very high hurdle for any technological solution to clear. The fact that upload filters are incapable of determining if a particular use of a copyrighted work is infringing or not has been established beyond any doubt. But that does not mean that the failure to assess the context is the only way that filters based on automated content recognition fail to meet the requirements established by the directive. In total there are at least three distinct ways how filters fail.

In the remainder of this post we will discuss these three failure modes based on examples collected by Techdirt in the course of a single week: removals caused by incorrect rights information, removals caused by the inability to recognise legitimate uses, and removals caused by the inability to accurately identify works.

Incorrect rights information

Incorrect rights information is probably the most common and best documented cause for the unjustified removal (or demonetisation) of works on YouTube.

ACR systems execute actions specified by whoever is recognised as the owner of a work. For the purposes of the ACR systems, the owner of a work is whoever claims to be the owner of the work and, unless there are conflicting ownership claims, there is no way to check the accuracy of such claims as there are no authoritative databases of ownership rights. As a result it is possible to claim ownership in public domain works (which no-one owns), in works that have been freely or widely licensed by their owners, or for any copyrighted work that has not already been claimed by someone else. Continue reading

COMMUNIA Salon 2020/2: protecting freedom of expression via the pastiche exception

COMMUNIA Salon 2020/2: Protecting freedom of expression via the pastiche exceptionLicentie

After the success of our first virtual COMMUNIA salon last month we will be holding a follow-up event on Thursday, the 18th of June, from 1530 to 1700h CET. This time we will be focussing on the role of the now mandatory exceptions and limitations for quotation, criticism, review, caricature, parody and pastiche in the context of the implementation of Article 17 of the DSM directive. We will pay special attention to the role of the pastiche exception and examine how a broad conception of pastiche can provide a legal basis for a wide range of transformative uses of protected works on online platforms.

In the context of the discussion on the implementation of Article 17, scholars have argued that the concept of pastiche (“a musical, literary, or artistic composition made up of selections from different works“) provides a legal basis for safeguarding transformative uses that are commonly referred to as User Generated Content. During the upcoming COMMUNIA salon we will explore this possibility and discuss how Member States can best make use of the room provided by the pastiche exception when implementing Article 17 of the DSM directive.

After introductory presentations by Teresa Nobre (on the importance of flexible exceptions to copyright) and Paul Keller (on the tension between filtering obligations and the obligation to safeguard users rights in the context of Article 17), we will be joined by Professor Martin Senftleben from the Institute for Information Law, who will focus on the role of the pastiche exception. Prof. Senftleben has recently published a paper on the role of the pastiche exception in the context of institutionalised algorithmic enforcement and is one of the co-authors of the European Copyright Society’s comment on Article 17 of the DSM directive, which recommends “cultivating the concept of pastiche” to ensure that Article 17 does not limit freedom of expression.

The presentations will be followed by an informal question and answer session.

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.

Member States watch: User rights safeguards must be fully implemented into national laws

The Letter Writer
Submissions in Hungary and the Netherlands
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As part of our implementation project we are tracking the national implementations of the DSM directive in the different EU member states and are working together with local advocates and civil society organisations to make sure that national implementations are as good as possible from the users and public interest perspectives. As part of this work we are also occasionally providing input into national legislative processes. Earlier this week we made a submission to the public consultation in Hungary and expressed concerns about shortcomings of the Dutch implementation law in a letter to the Dutch Parliament.

Hungary: The importance of the pastiche exception

Last month the Hungarian Ministry of Justice and the Hungarian Intellectual Property Office (HIPO) published a consultation proposal on the transposition of the DSm directive into Hungarian law.

Hungary is one of the EU member states that currently does not have an exception for parody, caricature or pastiche in their Copyright Act. Article 17(7) of the DSM directive requires all Member States to “ensure that users […] are able to rely” on exceptions or limitations authorising use “for the purpose of caricature, parody or pastiche”. Consequently Hungary must introduce such an exception as part of the implementation of the directive. The consultation proposal identified two different options to meet this requirement:

  • an exception allowing “anyone to use any work for the purposes of (…) parody by evoking the original work and by expressing humour or mockery” (Option A), or
  • an exception allowing “anyone to use any work for the purposes of (…) creating a parody, caricature or pastiche” (Option B).

In our submission to the consultation (Hungarian, English) we pointed out that Option A, by omitting caricature and parody, fails to properly implement the DSM directive and that therefore the Hungarian legislator should go with Option B. Option B, in line with our longstanding position on exceptions and limitations in the EU copyright framework, recommends to closely follow the language of the exception contained in Article 5(3)(k) of the Information Society Directive. By taking over the wording of the prototype exception and leaving the interpretation of the concepts of parody, caricature and pastiche to the courts, Option B takes full advantage of the policy space that is available to Member States and enables the harmonization of these concepts across the EU. This is especially important since in the context of Article 17, the concept of pastiche will likely become an important safeguard for the freedom of expression. Continue reading

Video recording from last weeks COMMUNIA salon

Last week Monday, on the first anniversary of the entry into force of the Copyright in the DSM Directive, we held the first virtual edition of our COMMUNIA Salon. During the event we presented an overview of the implementation status in the EU member states, zoomed in (sic!) on various legislative proposals to implement Articles 15 and 17 of the Directive and discussed ways to challenge parts of the Directive via the legal system. If you have missed the event you can watch a recording of the presentations and the subsequent discussion here: 

The event was kicked off by Teresa Nobre who launched the COMMUNIA implementation tracker and presented an overview of the implementation in the EU member states. While France has already implemented the press publishers right, the majority of EU member states are still in various stages of consultation. One year after the entry into force of the Directive, only Belgium, Croatia, France, Germany, Hungary and the Netherlands have put forward legislative proposals. Continue reading

COMMUNIA Salon: Copyright in the DSM Directive – one year after

Communia Salon 2020: DSM directive one year afterLicentie

The Copyright in the Digital Single Market (CDSM) Directive went into effect on the 18th of May 2019. During the COMMUNIA salon we will be given an update on the implementation status in the EU member states and the discussions at the European Commission’s stakeholder dialogue on the implementation of Article 17 of the directive. Join us on Monday the 18th of May 2020 from 1530h – 1700h (Brussels time) for a series of short presentations and an informal question and answer session.

While the focus of most policy makers is on the current health emergency, the implementation of the CDSM directive is ongoing. Member states have until the 7th of June 2021 to implement the divisive and complex rules contained in the directive.

A year after the entry into force of the directive a messy picture has emerged. In France, which has already implemented the press publishers right, that implementation has led to an intervention of the competition authority. The Polish government has challenged parts of Article 17 in the CJEU arguing that it violates fundamental rights. And while some Member States have published legislative proposals for the implementation of the directive, most Member States are still holding formal and informal consultations.

Meanwhile, the Commission’s own stakeholder dialogue, which brought more than 80 different stakeholders together to discuss the implementation of Article 17, has come to a COVID19 induced halt after a series of contentious meetings, and all eyes are now on the European Commission which has yet to present a first outline of the implementation guidelines.

During the upcoming COMMUNIA salon, Teresa Nobre (COMMUNIA) will provide an overview of the implementation status in the different member states. Ula Furgal (CREATe) will provide a more in depth perspective on Article 15 (the new press publishers rights) including recent developments in France and Australia. Paul Keller (COMMUNIA) will provide an overview of the discussions surrounding the implementation of Article 17 including the ongoing stakeholder dialogue. Finally, Julia Reda (GFF /control ©) will discuss the role of litigation in ensuring a fundamental rights-preserving implementation of the CDSM directive.

The presentations will be followed by an informal question and answer session.

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.

A better way to implement Article 17? New German proposal to avoid overblocking

Jakobs ladder
A step-by-step concept against overblocking
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Back in April 2019, at the occasion of the final vote on the DSM Directive in the Council, the German Federal Government issued a statement, announcing that it intended to implement Article 17 with a focus on “preventing ‘upload filters’ wherever possible, ensuring freedom of expression and safeguarding user rights”. While the German Government has yet to produce an implementation proposal for Article 17, we may now have gotten a first insight in what such an implementation might look like. Late last month, the Kölner Forschungsstelle für Medienrecht at the University of Applied Sciences in Cologne, published a step-by-step concept for implementing Article 17 of the DSM Directive (“Stufenkonzept gegen Overblocking durch Uploadfilter“). 

The paper authored by Prof. Dr. Rolf Schwartmann and Prof. Dr. Christian-Henner Hentsch consists of an implementation proposal in the form of concrete legislative language. The objective of the authors seems to be to stay as close as possible to the objectives formulated in the German statement to the Council. What makes this proposal remarkable is that it is the first proposal (although not an official one) for implementing the Article 17 of the new Copyright Directive that does not consist of more or less literal transposition of Article 17 into national law (as it is the case in the French, Dutch and Belgian legislative proposals). In order to achieve the stated objective of preventing over-blocking by upload filters, the concept proposes a combination of Article 17 with Article 12 of the DSM Directive (which provides Member States the option to introduce Extended Collective Licenses). 

The implementation proposal contains modifications of three different acts: the Copyright Act (Urheberrechtsgesetz – UrhG), the Tele Media Act (Telemediengesetz – TMG) and the Collective Management Organisations Act (Verwertungsgesellschaftengesetz – VGG). Specifically the authors propose the following modifications: 

In the Copyright Act, they propose to add a new section to the article (§ 19a UrhG) that defines the act of communication to the public. The purpose of this addition is to include acts of giving the public access to copyright-protected user uploaded works by Online Content Service Providers (OCSSPs) in the definition of the existing making available to the public right. This establishes that, in principle, OCSSPs need authorisation from rightholders for such acts. The added section also includes the definition of OCSSPs, which is a literal transposition of the definition used in the DSM directive. 

The second addition to the Copyright Act is a new exception covering uses for the purpose of caricature, parody or pastiche by users of OCSSPs (§ 51a UrhG). Notably, this exception only applies in the context of sharing works via OCSSPs (which is highly unusual as copyright exceptions are usually not limited to specific services) and is conditional on remuneration to rightholders via collective management organisations. Continue reading