The recent CJEU decision on Article 17 of the copyright directive has defined a framework for the use of automated content moderation. The Court considers filtering obligations compatible with the right to freedom of expression and information as long as they are limited to use cases that allow for a robust automated distinction between legal and illegal content. In the context of Article 17, upload filters may therefore only be used by online platforms to block manifest infringements of copyright law. The Court leaves it up to the Member States to ensure that legal uses remain unaffected by their national transpositions of Article 17.
The judgment raises a host of important questions for the enforcement of copyright law as well as for the compatibility of upload filters with fundamental rights even beyond copyright law. To discuss these consequences, together with Gesellschaft für Freiheitsrechte we are jointly organizing the “Filtered Futures” conference on Monday, September 19th 2022, in Berlin.
We are inviting papers from all disciplines contributing to the conference theme. To present your work at Filtered Futures, please complete the submission form by July 10th, 2022. The form asks for a short abstract of your talk. All applicants will be notified by July 22th, 2022.
We are attending the 42nd session of the WIPO Standing Committee on Copyright and Related Rights (SCCR) in Geneva. Today, the Committee is discussing the issue of limitations and exceptions for educational and research institutions and for persons with other disabilities (Agenda Item 8) and the following statement was delivered on behalf of COMMUNIA:
It will not be easy to convince your families, friends, neighbours that policymakers from across the world should spend time discussing how to improve copyright exceptions.
There is absolutely no doubt that the restrictions copyright laws pose on access to knowledge and information condition the right to education and the right to research, and that educational and research exceptions would benefit society as a whole. That is what will determine whether teachers can show a short news report during live-streamed online classes, whether researchers can conduct medical research or track desinformation online.
Yet, the fact that copyright laws are hard to understand will be an obstacle to reforming copyright laws at national level. Therefore, when Global North delegations claim that each one of you can go back to your countries and introduce exceptions that work for education and research in the 21st Century, we say: that is easier said than done.
Indeed, if you look at the national exceptions for education and research in the European Union, before the recent EU-wide copyright reform, you will see that not even the EU Member States were investing time in solving these issues if they had not been forced to do so through a binding regional instrument.
It should also be said that the fact that copyright exceptions are now outdated only in the Global South does not make this issue less problematic for the Global North. Institutions in Europe and North America engage in cross-border education and research activities outside of their regions on a regular basis. Think about EU distance education programmes attended by students located in Latin America or international research programmes involving North American and Asian researchers. It is clear that the lack of the same minimum set of rights across the world prevents these cross-border activities from taking place, affecting both the North and the South.
We understand that this Committee is not ready to make a decision on how to positively affect copyright frameworks to actually protect the right to education and research. At the same time, this Committee has been discussing this agenda item for nearly 15 years.
We believe that it is fair to say that the work undertaken by the Committee so far has not had much impact on the copyright provisions that frame how educators and researchers can have access to knowledge and information. The African Group proposal could change the course of action to make the work of the Committee more useful. We, thus, urge this Committee to use its best efforts to reach an agreement on how to move forward towards more positive and impactful outcomes.
In our capacity as permanent observers of the WIPO Standing Committee on Copyright and Related Rights (SCCR), we are attending the 42nd session of the Committee, which is taking place in a hybrid format of in-person and online participation from 9 to 13 May 2022, in Geneva.
Today, the Committee is discussing the protection of broadcasting organizations and the following statement was delivered on behalf of COMMUNIA on this agenda item (Agenda Item 6):
Much of the content that broadcasters transmit plays an essential informational, cultural and educational role in our society. Radio and television programs and archives are fundamental to have access to knowledge and information. They are sources of scientific research and are also used as educational materials. We recall that radio and TV-based remote learning have re-emerged in the past years, in response to the pandemic.
Therefore it is essential that educators and researchers have broad and immediate access to broadcast content.
Although the scope of the draft treaty has been reduced, the need for robust limitations and exceptions remains, when legal protection of broadcasters is shaped in the form of exclusive rights.
The problem is that the draft text only says that countries “may” extend the same exceptions that exist for copyright, but, obviously, countries can choose not to do this.
This is more restrictive than the Berne Convention, which has mandatory exceptions for news of the day and quotations, and permissive exceptions for educational and other uses. This may lead to the surprising result that broadcasts are subjected to fewer exceptions than the underlying copyrighted works.
A treaty that creates an additional layer of rights needs to also mandate the corresponding exceptions. Otherwise it ignores the societal and cultural needs related with access and reuse of broadcasts, failing the society as whole.
Yesterday, China blocked the ad-hoc accreditation of Wikimedia chapters of France, Germany, Italy, Mexico, Sweden, and Switzerland as official observers to the Standing Committee on Copyright and Related Rights (SCCR) of the World Intellectual Property Organization (WIPO). Previously, China had rejected the Wikimedia’s Foundation application to observer status to this UN agency.
WIPO SCCR discussions where norm setting in copyright is concerned are of utmost importance to access to knowledge organizations, and observer status is a necessary condition for the six Wikimedia chapters to participate in such discussions. Not admitting the chapters as observers is unacceptable and runs counter to established practice and criteria for admission of observers at WIPO.
China opposed the applications, suggesting that they are subsidiaries of Wikimedia Foundation, whose projects violate the ‘One China’ Policy. China’s position was implicitly supported by Bolivia, Iran, Nicaragua, Russia, Venezuela, which stressed the need for consensus to approve the chapters’ applications.
On the 28th of April, we hosted the second COMMUNIA Salon of 2022 to discuss the implications of the CJEU judgment in Case C-401/19, which rejected the request of the Polish government to annul Article 17 and confirmed that this provision can be reconciled with the right to freedom of expression provided that certain users rights safeguards are in place.
The Salon started with João Pedro Quintais (Assistant Professor at the Institute for Information Law (IViR), University of Amsterdam), who presented an overview of the case and the three main takeaways of the judgment, according to his preliminary reading of the judgment. First, the Court clarified that Article 17 follows a normative hierarchy, where the obligation of result to protect user rights or freedoms takes precedence over the obligations of best efforts that exist for preventive measures. Secondly, the ruling makes it clear that ex-post procedural safeguards are insufficient to take care of overblocking; ex-ante safeguards are also required to protect user rights or freedoms. Finally, with regards to filtering measures, it appears that it will be difficult to argue that the judgment leads to a conclusion that is different from the AG Opinion, according to which only manifestly infringing content can be blocked at upload.
Today, the Court of Justice of the European Union issued its long awaited judgement on the compliance of the new liability regime established by Article 17 of the DSM Directive with fundamental rights. Rejecting the request of the Polish government to annul Article 17(4)(b) and the last half sentence of subparagraph (c), the Court confirmed that Article 17 can be reconciled with the right to freedom of expression because the article also provides ex-ante and ex-post safeguards to users rights that limit its impact on the right to freedom of expression and information.
Article 17 contains sufficient safeguards to minimise the impact of upload filters on fundamental freedoms
According to the CJEU, 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 online 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.
The Court held that the risks that the use of upload filters entails for the right to freedom of expression and information of users of sharing platforms have been sufficiently addressed by the EU legislator, which laid down sufficient safeguards in Article 17(7), (8) and (9) to protect those rights:
online sharing providers have an obligation of result to not preventively block lawful content (Article 17(7));
those providers are only obliged to detect and block content in on the basis of relevant and necessary information provided by rightholders and cannot be required to block content which, in order to be found unlawful, would require an independent assessment of the content by them (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, users have at their disposal a complaint and redress mechanism as well as out-of-court mechanisms (Article 17(9)).
COMMUNIA and Wikimedia Deutschland held a panel discussion on February 15th to discuss whether the new mandatory exceptions in the EU Copyright Directive could serve as a model to solve some of the most pressing international-level problems around education and research.
The event started with Marco Giorello, the Head of the Copyright Unit at DG CONNECT of the European Commission, explaining the reasons for introducing mandatory exceptions for education and research purposes at the EU level (from min. 8:55 to min. 20:50). Marco pointed out that both research and education were at the forefront of the Commissions’ discussions on the modernization of the copyright system. The need for introducing mandatory exceptions for those activities became apparent after conducting a study of the national implementations of the optional EU-level education and research exceptions. Not all Member States had implemented the exceptions of the InfoSoc Directive. Those who had implemented them had done it in a very different way, and in a number of cases the national exceptions were clearly not applicable to digital and online uses.
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)).
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):