Implementing the new EU press publishers’ right

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Last week, we launched our Guidelines for the Implementation of the DSM Directive. This is part of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the new exclusive right granted to EU press publishers by the new Copyright Directive.

For a detailed analysis, please read Communia’s guide on Article 15, authored by Timothy Vollmer, Teresa Nobre and Dimitar Dimitrov.Continue reading

Implementing the new EU provision that protects the public domain

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Last week, we launched our Guidelines for the Implementation of the DSM Directive. This is part of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the mandatory provision in the new Copyright Directive that ensures that faithful reproductions of public domain works of visual art cannot be subject to exclusive rights.

For a detailed analysis, please read Communia’s guide on Article 14, authored by Paul Keller, Teresa Nobre and Dimitar Dimitrov.Continue reading

Implementing the new EU protections against contractual and technological overrides of copyright exceptions

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This week, we launched our Guidelines for the Implementation of the DSM DirectiveThis is part of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the mandatory provisions in the new Copyright Directive that prevent contractual and technological overriding of some of the new copyright exceptions.

For a detailed analysis, please read Communia’s guide on Article 7, authored by Teresa Nobre and Natalia Mileszyk. Continue reading

Implementing the new EU exception for preservation of cultural heritage

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This week, we launched our Guidelines for the Implementation of the DSM Directive. This is part of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the mandatory exception for preservation of cultural heritage contained in the new Copyright Directive.

For a detailed analysis, please read IFLA and Communia’s guide on Article 6, authored by Stephen Wyber. Continue reading

Implementing the new EU exception for digital and cross-border education

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This week, we launched our Guidelines for the Implementation of the DSM Directive. This is part of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the mandatory exception for digital and cross-border education contained in the new Copyright Directive.

For a detailed analysis, please read Communia’s guide on Article 5, authored by Teresa Nobre. Continue reading

Implementing the new EU exceptions for text and data mining

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Yesterday, we launched our Guidelines for the Implementation of the DSM Directive. This is the first of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the two mandatory exceptions for text and data mining contained in the new Copyright Directive.

For a detailed analysis, please read LIBER and Communia’s guide on Articles 3 and 4, authored by Benjamin White and Maja Bogataj Jančič. 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

Article 17 stakeholder dialogue (day 2): Filters, not licenses!

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On Tuesday this week the participants of the stakeholder dialogue on Article 17 of the EU copyright directive convened in Brussels for the second meeting. After a first meeting that focussed on practices in the music, games and software sectors (see our report here), this week’s meeting focussed on the current situation in the audiovisual (AV) and publishing sectors. 

Hollywood: Article 17 is about filtering after all

The meeting kicked off with a long series of statements from the many different rightholders in the AV sector (see the video recording here). The assembled sector representatives made it clear that from their perspective Article 17 is welcome (as it clarifies that online platforms need to obtain licenses for the works uploaded by their users) but that they are not interested in widely licensing AV works to UGC platforms and would instead focus on the blocking and removing of unlicensed content via the upload filtering mechanisms introduced by Article 17. 

This approach is the logical consequence of the predominant business model in the AV sector which relies on exclusive licensing to selected outlets (Cinema, TV, VOD platforms). It directly contradicts the music industries’ narrative from the first meeting that Article 17 is about licensing and not about blocking access – as in the case of music general availability is crucial. Representatives of the AV industry made it very clear that they would fight any attempts at non-voluntary licensing and that they would also fight against effective protection for user rights under exceptions and licensing (see for example the statement issued by the Motion Picture Association starting at 10:41:44 of the video recording). These initial statements make it clear that the AV industry does indeed look at Article 17 as an instrument to limit freedom of expression and reuse and will likely use the stakeholder dialogue to bend the article further in this direction. Continue reading

Article 17 stakeholder dialogue (day 1): Same old, same old

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Article 17(10) of the Copyright in the Digital Single Market directive requires the Commission to “organise stakeholder dialogues to discuss best practices for cooperation between online content-sharing service providers and rightholders”.  Last week Tuesday we took part in the first meeting of the stakeholder dialogue. The dialogue (which will consist of a series of meetings) is supposed to provide the Commission with input for producing guidelines can “balance fundamental rights and the use of exceptions and limitations” with the upload filtering obligations introduced by Article 17 of the directive.

The meeting, which was attended by 80 stakeholders (plus representatives from the 28 Member States), was supposed to focus on “current practices with regard to the cooperation between rightholders and online content sharing service providers” in the music, software and gaming sectors. The day  was kicked off by a short welcome address by Commissioner Maria Gabriel in which she praised the outcome of the copyright reform as an example of Europe taking the lead in developing rules for the digital environment (translation from the original French): 

The new Copyright Directive in the Digital Single Market demonstrates the ability of the European Union to collectively reflect on today’s challenges and to bring about just, innovative and concerted responses. It is another example of a Europe that opens the way and sets an example to the rest of the world.

[…] The new Directive, and in particular Article 17, opens a new era in the regulation of the relationship between copyright and digital services. And this, without touching the fundamentals. It does not challenge the traditional rules of copyright while introducing a new framework that provides essential guarantees to ensure a proper balance between fundamental rights, in the first place freedom of expression on the Internet.

[…] With the adoption of the Copyright Directive, the European Union is leading a global movement to develop a fairer economic model for the production, access and distribution of content in the digital environment. Europe is now a more attractive place to invest in creation and digital.

It should be evident that we do not share this positive assessment of the directive. If the directive was indeed such a balanced piece of legislation as the commissioner claims, then there would not be a need to organize stakeholder dialogue to patch up its worst inconsistencies. Continue reading

Article 17 Stakeholder Dialogue: We’ll Continue to Advocate for Safeguarding User Rights

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Yesterday the European Commission invited COMMUNIA to participate in the “Stakeholder dialogue under Article 17 of the Directive on Copyright in the Digital Single Market” that will kick off in Brussels next week. This invitation comes after we had expressed our interest to participate in response to a call issued by the Commission in September. It is our understanding that COMMUNIA will be one of a small number of civil society participants in the dialogue (the Commission has yet to publish a list of participating organisations). 

Stakeholder dialogue to the rescue!

Article 17(10) of the Copyright in the Digital Single Market directive requires the Commission to “organise stakeholder dialogues to discuss best practices for cooperation between online content-sharing service providers and rightholders”. Based on the outcome of these dialogues with “content-sharing service providers, rightholders, users’ organisations and other relevant stakeholders” the Commission is expected to “issue guidance on the application of Article 17” that is supposed to “balance fundamental rights and the use of exceptions and limitations” with the upload filtering obligations introduced by Article 17. 

Given that two and a half years of legislative wrangling have failed to produce a balanced (or at least coherent) outcome, it seems rather unlikely that this stakeholder dialogue will be able to achieve such a balance. Still the stakeholder dialogue provides an opportunity to minimise the harm to the freedom of creative expression and the ability for smaller platforms to strive under Article 17. Such an optimistic view of the stakeholder dialogue has been put forward by the German government, which has stated that it

… therefore assumes that this dialogue is based on a spirit of guaranteeing appropriate remuneration for creatives, preventing ‘upload filters’ wherever possible, ensuring freedom of expression and safeguarding user rights. The German Federal Government assumes that uniform implementation throughout the Union will be agreed on in this dialogue, because fragmentary implementation with 27 national variants would not be compatible with the principles of a European Digital Single Market.

Five measures to minimize the harm caused by upload filters

While we have strongly criticised Article 1, mainly because of the filtering obligations it introduces, there are also positive elements in the article. These include mandatory exceptions for quotation and parody, and a number of procedural safeguards intended to ensure that users can exercise the rights they have under these exceptions and limitations.

As part of our contribution to the stakeholder dialogue we will strive to ensure an outcome that minimises the impact and scope of the filtering provisions and that maximises the scope of exceptions and limitations that guarantees meaningful safeguards for users to exercise the rights they have under these exceptions. From our perspective, the following five measures will guide our contribution to the stakeholder dialogue: Continue reading