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

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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

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.

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

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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

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 5): It all depends

Copyright stakeholder dialogueLicentie

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

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

Academic statement on safeguarding user freedoms in implementing Article 17

Optocht van professoren
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