Article 17 stakeholder dialogue (day 5): It all depends

January 21, 2020

by Paul Keller

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.

Given the liability risks that Article 17 introduces for platforms, a lack of substantial guidelines will be a recipe for disaster. While much of the discussion at the stakeholder dialogue centers on the interactions between rights holders and major platforms, like YouTube, Facebook or Twitch, that can afford to develop their own rights management tools, a lack of substantive guidelines will hurt smaller platforms that do not have sufficient revenues to incentivise rightholders to collaborate. For these smaller platforms that will result in liability concerns, which will incentivise them to overblock in order to avoid the increased liability risks.

Rightholders’ wet dreams emerge

That such concerns must be taken seriously was confirmed by the, at times highly uninformed, contributions to the discussion, which show a total lack of understanding (or disregard) of fundamental principles of copyright. At one point, the representatives of commercial television stations (ACT) argued that platforms should be required to take down uploads whenever the logo of one of their member stations was detected in combination with the title of a TV programme. While it should be clear that the presence of a logo and a few words is neither a sufficient nor even a reasonable proof of copyright infringement, such claims make it clear that rightholders are planning to aggressively pursue takedown requests once the new legislation is in place. Unfortunately, platforms cannot be trusted to uphold user rights in light of such tactics, as an intervention from Twitch.tv illustrated: As part of its contribution, the Twitch representative fabulated about using the combination of two words (“Liverpool” and “Barcelona”) as a criterium for blocking streams on his platform.

If anything, these uninformed contributions to the debate underline the need for strong user rights safeguards in both national implementations of Article 17 and in the Commissions’ guidelines as neither rightholders nor platforms can be trusted in this regard.

Germany fails to live up to its promise

In light of the above discussion, it is a major disappointment (although not necessarily an unexpected one) that the German government has so far failed to outline its approach to implementing Article 17. Back in April 2019 when the directive was approved in the Council, Germany had issued a statement that its government

[…] assumes that [the stakeholder] 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. […] On the basis of this declaration, the German Federal Government will participate in this dialogue.

So far the German government has not actively participated in the stakeholder dialogue. This hardly lives up to the spirit of the April 2019 statement and is highly unfortunate since the statement contains a number of considerations that are highly relevant in the discussions that took place at the last stakeholder dialogue. In its statement the German government had advocated for robust licensing provisions and strong user rights safeguards. Unfortunately, it seems clear that the silence of the German government is on purpose, and the government has chosen to wait for the outcome of the stakeholder dialogue before outlining its own ideas (in a telling move, on the day before the stakeholder dialogue, the German Ministry of Justice published a draft implementation law of the copyright directive that excludes Article 17). This is not only a missed opportunity but also a stab in the back of millions of German internet users who had forced the German government to issue its statement when it approved the directive.

The final showdown?

So far the stakeholder dialogue has stayed away from one of the main issues that it should address: the tension between the contradictory provisions requiring platforms to make best efforts to prevent availability (i.e filter) and requiring that any collaboration between rightholders and platforms shall not lead to the removal or blocking of legitimate content. Article 17(10) states that based on the stakeholder dialogue the Commission will need to…

[…] issue guidance on the application of this Article, in particular regarding the cooperation [between rightholders and platforms]. When discussing best practices, special account shall be taken, among other things, of the need to balance fundamental rights and of the use of exceptions and limitations.

The questions on how to ensure that legitimate uses are not negatively affected by upload filters and what complaint and redress mechanisms are available to users when they inevitably do, are on the agenda for the next meeting of the stakeholder dialogue. Based on the insights from the previous meetings it is clear that automated content filters alone cannot deliver the users rights safeguards required by the directive. So far the stakeholder dialogue has avoided to confront this inconvenient (for both rightholders and platforms) truth.

In this situation, the Commission will need to show if it is willing to defend the legislative compromise reached with Article 17, or if it will sacrifice user rights in the light of powerful commercial interests that are interested in undermining the user rights safeguards that were included in the final compromise. Together with the other users’ organisations represented in the dialogue we will push for meaningful safeguards (such as human review of automated content matches before uploads can be deleted). As there are currently no further meetings of the stakeholder dialogue on the agenda, the discussion about user rights at the next meeting will likely be the final showdown. This means that it will be crucial for anyone that has an interest in safeguarding user rights (including the European Parliament, which introduced the relevant provisions into the final compromise) to pay close attention to the next meeting.