A look at the AG Opinion on Article 17

The Contest between Apollo and Pan
Ex-ante blocking is against fundamental rights
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Last week, Advocate General Saugmandsgaard Øe at the CJEU issued his opinion in Case C-401/19, the Polish request to annul Article 17 of the CDSM directive. According to his Opinion, the preventive measures to monitor and block users’ uploads envisioned by Article 17(4) constitute a limitation on the exercise of the right to freedom of expression and information of the users of sharing services, but such a limitation is compatible with Article 11 of the Charter of Fundamental Rights of the European Union, since all the conditions laid down in Article 52(1) of the Charter are satisfied. 

In particular, the Advocate General found that the new liability regime established by Article 17(4) respects the proportionality requirement – despite entailing significant risks for freedom of expression – as it is accompanied by sufficient safeguards to minimise those risks:

  • sharing service providers are not authorised to preventively block all content which reproduces the copyright-protected content identified by rightholders, including lawful content (Article 17(7));
  • those providers are obliged to detect and block only content the unlawfulness of which seems manifest in the light of the ‘relevant and necessary’ information provided by the rightholders (Article 17(8));
  • additionally, and as final safeguard for situations where, despite the obligation in Article 17(7), those providers nevertheless block such legitimate content mistakenly, users have at their disposal a complaint and redress mechanism as well as out-of-court mechanisms (Article 17(9)).

While one could argue that the annulment of this problematic provision would be preferable, in light of the recent decision of the CJEU on Joined Cases C‑682/18, YouTube, and C‑683/18, Cyando, these clarifications on user rights safeguards are very much welcome. The views shared by the Advocate General are, in general, aligned with the arguments brought forward by COMMUNIA and other users’ rights organizations as well as the position held by large group of  academics, and if the CJEU decides to follow the AG Opinion it should force countries that have implemented Article 17 without proper user rights safeguards to reverse course. 

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SCCR/41: COMMUNIA Statement on Limitations and Exceptions

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How can a country solve this issue alone?
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This week COMMUNIA is attending the 41st session of the WIPO Standing Committee on Copyright and Related Rights (SCCR), in its observer capacity.

This is the second time the Committee meets since the beginning of the pandemic. In November last year, we urged the Committee to take appropriate action to respond to the massive disruption to education, research and other public interest activities caused by the COVID-19 pandemic. However, no Delegations put forward any proposal, and we left the SCCR disappointed at WIPO’s inaction in the face of this global crisis. 

Today, most Delegations expressed their agreement to a proposal to hold a number of regional consultations “to further develop the understanding of the situation of the cultural and educational and research institutions at the local level, especially in light of the impact of the Covid-19 pandemic on them”. Furthermore, a proposal by the Asia-Pacific Group, to hold an informational session at the next SCCR on the impact of COVID-19 on all the beneficiaries of the copyright system, was also well received.

Global South countries insisted, nevertheless, that the next steps for the agenda items on limitations and exceptions to copyright should not be limited to those consultations and information sessions. Many Delegations recalled the 2012 mandate to work towards “an appropriate international legal instrument”, and urged the Committee to set a work plan to fulfill the mandate.

The following is the statement made on behalf of COMMUNIA on the agenda item on limitations and exceptions for educational and research institutions and for persons with other disabilities (Agenda Item 7):

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SCCR/41: COMMUNIA Statement on the Protection of Broadcasting Organizations

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Again: no rights without exceptions!
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In our capacity of permanent observers of the WIPO Standing Committee on Copyright and Related Rights (SCCR), we are attending the 41st session of the Committee, which is taking place in a hybrid format of in-person and online participation from 28 June and 1 July 2021.

The first day of the event was dedicated to discuss the protection of broadcasting organizations, and several delegations shared their dissatisfaction with the fact that informal discussions on the text of the draft broadcast treaty had taken place without ensuring the participation of a diversity of delegations. The SCCR Chair invited to these meetings only to the so-called “Friends of the Chair”, which include Argentina, Colombia, the European Union, Finland, Germany, Japan, Kenya, Mexico, the Philippines, Republic of Korea, Russian Federation, and the United States of America. Civil society observers joined Indonesia, Pakistan, Iran, South Africa and Chile in their ask for greater transparency and inclusivity.

The following is the statement made on behalf of COMMUNIA on this agenda item (Agenda Item 5):

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10 years of COMMUNIA, a decade of copyright reform: how far did we get?

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Last week, on June 15, COMMUNIA celebrated its first 10 years. To mark the event, we decided to revisit the 14 policy recommendations that were issued at the moment of our foundation, and that have been the guiding principles for our advocacy work in the last decade.

We launched a new website, dedicated to reviewing the implementation of these policy recommendations. 10 years on, it is possible to see that half of our recommendations have been implemented – fully or partially -, and the other half remains unfulfilled. Most importantly, almost all of the recommendations are still relevant.

Where victory can be claimed: freeing digital reproductions of public domain works and giving access to orphan works

One of COMMUNIA’s main objectives since its foundation has been to promote and protect the digital public domain. Therefore, when the EU Parliament decided to follow our Recommendation #5 and proposed the introduction of a provision in the new Copyright Directive, preventing Member States from protecting non original reproductions of works of visual arts in the public domain with copyright or related rights, we were exhilarated. Article 14 not only reconfirms the principle that no one should be able to claim exclusive control over works that are in the public domain; it’s also the first EU piece of legislation to expressly refer to the concept of “public domain”.

Getting the “public domain” to enter the EU acquis lexicon was a major victory for user rights, but for sure more measures are needed to effectively protect the Public Domain. Our Recommendation #6, which called for sanctioning false or misleading attempts to misappropriate or claim exclusive rights over public domain material, has not been implemented and is more relevant than ever, particularly on online content sharing platforms. Here, a false ownership claim can easily lead to the false blocking of public domain material, as a result of the use of automated content recognition systems combined with the lack of public databases of ownership rights (that’s why the German legislator has recently adopted measures against this type of abuse, setting a new standard for the protection of the Public Domain).

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Video Recording of COMMUNIA Salon on the Article 17 guidance and the launch of the Eurovision implementation tracker.

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On Monday the 7th of June – the day of the implementation deadline for the DSM Directive – we held a special COMMUNIA Salon to mark the entry into force of the Directive, to assess the implementation process being made in the 27 Member States and to discuss the Article 17 implementation guidance published by the Commission just before the entry into force of the Directive. 

The Salon kicked off with Teresa Nobre and Dimitar Dimitrov presenting our ongoing work supporting user rights’ advocates across the EU Member States to ensure a user rights’ friendly implementation of the Directive into national legislations (from 1:11 to 18:13 in the video recording). This was followed by the launch of the Eurovision DSM Contest, a new website which tracks the implementation progress for each Member State. 

The second part of the event (from 20:00 in the recording onwards) consisted of a discussion on the Commission’s Article 17 guidance. Paul Keller opened the discussion by noting that, while the guidance establishes important user rights’ safeguards that put into question the implementation approach chosen by Member States – most notably by France and Denmark –, it also contains a massive loophole by allowing rightholders to “earmark” their content as economically valuable.

Julia Reda (GFF) followed up by comparing the guidance to the recently adopted German implementation law. She argued that the German law seemed to be largely in line with the principles established by the guidance and highlighted that the German rules, for certain types of “high-value” content, are highly targeted and limited. In this light, this is much less problematic than the “earmarking” mechanism introduced by the Directive. 

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Eurovision DSM Contest: the once in a decade copyright reform contest

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This Monday, June 7, was the last official day for EU Member States to implement the Directive on Copyright in the Digital Single Market. To mark the date we launched the “Eurovision DSM contest” website. The website provides a playful overview of the implementation of the new Copyright Directive across the EU, and Member States are scored on various performance levels: on the transparency and inclusivity of the procedure, on the implementation of Article 17, and on the implementation of other provisions that are either key from a user rights perspective (the mandatory exceptions and limitations to copyright and the public domain provision) or that also have the potential to harm users’ fundamental freedoms (the new press publisher rights). A bonus point is also available to those who have excelled in any other way.

While at the beginning of the week only three Member States had fully implemented the Directive (the Netherlands, Hungary and Germany), and could therefore be scored on all performance levels, it is already possible to track the level of activity across the board. As more Member States reach the finish line, we will attribute final scores and throw them into the contest. 

The first, second and third places (so far!)

So far, Germany is the front runner: the Federal Ministry of Justice and Consumer Protection held a transparent and inclusive discussion, which lasted for more than a year, and set a high standard for protecting user rights against overblocking. Hungary is in second place, in part due to the bonus point it got for fast-tracking the implementation of the new digital education exception, during the outbreak of COVID-19, having created room for remote teaching while educational institutions were closed. The Netherlands have been the first out of the door, with a draft text ready for an online consultation less than a month after the publication of the Directive, but the Dutch government failed to demonstrate its commitment to protecting user rights in the implementation, pushing it to the third place so far (with the possibility to still earn some extra points, if the Minister of Justice decides to make use of the power that received in the implementation law, to provide further rules for the application of Article 17).

France and Denmark, which have rushed to implement on time only the provisions that strengthen the position of creators and right holders, have been scored for the implementation of Articles 15 and 17, but will only officially enter the contest once they have implemented the remaining parts of the Directive.

Skipping the parliamentary debate

At this point, all Member States (except Portugal) have, in some way or another, initiated the legislative procedure, but some processes have been far from transparent or inclusive. In France and Italy, the Parliament delegated the legislative powers in the government, meaning that those countries will skip a central stage of the democratic process, which is the parliamentary debate and vote over the concrete implementation proposal put forward by the government. In France, where the Ministry of Culture went through the implementation of Articles 15 and 17 without providing any opportunity for stakeholders to share their views and concerns about those provisions, no public consultation is expected for the remaining parts of the Directive. In Italy, the Ministry of Culture is said to be planning to, at least, run a public consultation once its draft decree is finalized.

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Article 17 implementation guidance: Strong user rights safeguards with a giant loophole

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Final guidance undermines users' rights safeguards
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Today, on the last day before the implementation deadline for the Copyright in the Digital Single Market Directive, the European Commission has finally published its long overdue implementation guidance for Article 17 of the Directive. The guidance, which marks the end of a stakeholder process that started in October 2019, is supposed to provide Member States implementing the Directive with guidance on how to reconcile the contradicting objectives contained in Article 17 of the Directive. It comes at a time where only a handful of Member States have implemented the Directive into their national law. 

In the final version of the guidance published today, the Commission will require Member States to include ex-ante safeguards for user rights in their national implementation legislation. In doing so, it provides support to the implementation approach taken by Germany (and discussed in Austria and Finland), while making it clear that Member States who have limited themselves to merely re-stating the provisions of the Directive (such as France, The Netherlands and Hungary) will need to include such additional safeguards (more on this below). 

Unfortunately, and confirming the suspicions that we had expressed in our recent open letter, the final version of the guidance walks back the strong commitment to protect users’ fundamental rights that the Commission had shown earlier in the process. As a result of relentless pressure from the entertainment industry, the final version of the guidance contains an “earmarking” mechanism that is designed to allow rightholders to override safeguards against automated blocking of user uploads that are not manifestly infringing, by claiming that a use of their works “could cause significant economic harm”. This provision is ripe for abuse by rightholders and undermines the relatively strong principles for safeguarding users’ fundamental rights, which the guidelines require Member States to include in their national implementations (see our detailed description of how the “earmarking” provision undermines the principles of the guidance here). 

The “earmarking” mechanism was added to the guidance in the last three months, in closed-door deliberations of the Commission and in reaction to massive pressure from rightholders. This back-room dealing of the Commission in the last months stands in stark contrast to the transparent and balanced way in which the Commission had handled the initial stages of the stakeholder process. After a series of public stakeholder dialogue meetings, the Commission had released a remarkably balanced consultation draft of the guidance in July of last year. The Commission then used the principles outlined in the draft to defend the legality of Article 17 before the CJEU, only to agree on a final version that substantially undermines these principles, behind closed doors and without further consultation of the stakeholders involved in the process. 

This conduct abuses the stakeholder process that the Commission was legally required to hold as part of the hard fought-political compromise embodied in Article 17. Where the Commission initially lived up to its role as a neutral steward of the legislative compromise, it has abandoned this role unilaterally, changing the final result based on massive political pressure from rightholders.

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A closer look at the final Commission guidance on the application of Article 17

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Today, on the verge of the implementation deadline for the CDSM directive, the European Commission has published its long awaited guidance on the application of Article 17 of the Directive, in the form of a Communication from the Commission to the European Parliament and the Council. The structure of the final guidance largely follows the outline of the Commission’s targeted consultation on the guidance from July 2020, but there are significant changes to the substance of the final document. The final version of the guidance makes it clear that the European Commission has completely undermined the position it held before the CJEU, that Article 17 is compatible with fundamental rights as long as only manifestly infringing content can be blocked.

In the final guidance, the Commission maintains that it is “not enough for the transposition and application of Article 17(7) to restore legitimate content ex post under Article 17(9), once it has been removed or disabled” and argues that only manifestly infringing content should be blocked automatically, but these “principles” are included in name only. By introducing the ability for rightholders to “earmark” any content that has the potential to ”cause significant economic harm”, the guidance allows rightholders to easily override these principles, whenever they see fit, and to force platforms to automatically block user uploads even if they are not manifestly infringing.

In the remainder of this post we will examine these last minute changes to the guidance in more detail. Before we do that, we will briefly recall the key problem that the guidance was supposed to resolve and the principles that underpinned previous versions of the guidance.

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The public domain belongs to all and is often defended by no-one: we want to change that

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Litigating for the right to our shared culture
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As we approach our 10th anniversary, new ideas as to what role we want COMMUNIA to play in the coming decade are starting to take form. After spending a decade trying to improve policy and legislative processes, we can very much see COMMUNIA embracing other tools of intervention to expand the public domain and strengthen access to knowledge and culture. One of such tools, alongside our advocacy work, is strategic litigation.

Judicial developments are much needed to provide further clarity as to the scope of users rights in Europe. There’s still legal uncertainty as to whether certain public interest activities are permitted under existing exceptions and limitations to copyright,  how users can assert their rights on online platforms, whether (and how) users can enforce their rights against contracts and technological measures, and what’s the status of the public domain. The implementation of the new Copyright Directive, particularly Article 17, will bring further interpretation challenges. 

Whether and how much Communia will be able to engage in strategic litigation in the next decade is still to be determined, but we decided to take the first steps in this realm, by supporting a court proceeding that is aimed at challenging an abusive practice that is eroding the public domain: that of claiming exclusive rights overs tridimensional digitizations of public domain artworks.

The case against Musée Rodin

In 2018, artist and open access activist Cosmo Wenman filed a freedom of information request with the Musée Rodin in Paris to access the 3D scans of Auguste Rodin’s sculptures (all of which are in the public domain). When the museum refused to comply, Mr. Wenman appealed to the French Commission on Access to Administrative Documents (CADA).

In response the CADA confirmed that these 3D scans in question are administrative documents and are subject to public disclosure, under freedom of information laws, and therefore the Musée Rodin is required to give public access to them. 

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German Article 17 implementation law sets the standard for protecting user rights against overblocking

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A practical approach to protecting users' rights
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Today the German Bundestag adopted the law implementing the provisions of the DSM directive into German law. The law still needs to be confirmed by the Bundesrat before it can be signed into law by the President, but it is not expected that the law will undergo any more changes during that process. As we have explained here before, the German implementation law is one of the most ambitious implementations of the DSM directive especially with regards to the way it implements the provisions of Article 17 of the directive. And while the discussions in the Bundestag have led to a number of changes to the text of the law, the key mechanism underpinning the government proposal for implementing Article 17 has emerged essentially unchanged. In addition, the discussion in the Bundestag has resulted in a number of substantial improvements in other parts of the law. 

Presumably legitimate uses

Once signed into law, the implementation of Article 17 will be the first one that contains a practical mechanism designed to ensure that the use of upload filters does not result in the blocking of user uploads which do not infringe copyright. The need for such an ex-ante mechanism arises from Article 17(7) and has also been stressed by the Commission at various points in the past. 

In order to achieve this, the German implementation relies on the concept of “uses presumably authorised by law”, which must not be blocked automatically. For an upload to qualify as “presumably authorised by law”, it needs to fulfil the following cumulative criteria:

  • The use must consist of less than 50% of the original protected work,
  • The use must combine the parts of the work with other content, and
  • The use must be minor (a non-commercial use of less than 15 seconds of audio or video, 160 characters of text or 125 kB of graphics) or, if it generates significant revenues or exceeds these thresholds, the user must flag it as being covered by an exception.

If these conditions are met, the use is considered to be “presumably authorised by law” and cannot be blocked automatically. Rightholders can still challenge the legality of such uses but platforms are required to keep the uploads online until those complaints have been reviewed by the platforms (there is an exception that allows “trusted rightholders” to request immediate removal if they consider the use evidently infringing and commercially harmful). 

This mechanism had been the target of massive criticism from rightholders throughout the parliamentary debate and it is welcome to see that the Bundestag has had the courage to hold the line here. The version of the law adopted today makes one small concession to rightholders. It now specifies that the “presumably authorised by law” mechanism does not apply to “the use of cinematographic works or videos until the end of their first public broadcast, in particular during the simultaneous broadcast of sports events, provided that the rightholder requests this from the service provider”. This change addresses concerns expressed by sports associations who argued that allowing people to share 15 second clips of sports events during an event would ruin their business model. While this seems highly dubious, the exception is so narrow that its impact on legal uses will be fairly minimal. 

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