Last month, we held the first edition of our Copyright Directive Webinars, aimed at explaining the different provisions of the new Copyright Directive and making suggestions on what to advocate for during the implementation process of those provisions at a national level, to expand and strengthen user rights. We’ve now released the presentations and video recordings of the webinars.
As you know, many countries are now speeding up with the process of implementation of the Directive – you can find below a short summary of what’s going on.
EU implementation – country updates from last weeks
GERMANY
Germany’s Ministry of Justice unveiled its proposal to implement Article 17 of the new Copyright Directive. The discussion draft sets an example for the other Member States on how to make the user rights safeguards in Article 17 operative, and we strongly suggest that you look into the detailed analysis that we published in our blog. This is what is being proposed, in sum:
- Making it easier for platforms to comply with the “best efforts” obligation to obtain authorization to publish their users’ uploads;
- Introducing a new exception covering minor uses of copyrighted content, which works as a fallback mechanism in the absence of authorization;
- Allowing users to override blocking/removal actions, by pre-flagging lawful uses;
- Allowing lawful content to stay up until human review and pausing the liability of platforms until a decision has been made;
- Sanctioning abusive behavior by platforms, rightholders, and users.
We have organized a webinar on this topic, which you can watch here.
Former MEP Felix Reda has published a two-part comment on this on the Kluwer Copyright Blog, including a discussion of the strengths and fragilities of this proposal, which is the first one to actually attempt to avoid over-blocking of content. (Part 1, Part 2)
FRANCE
At the beginning of July we heard that the French Government would try to pass the implementation of Article 17 via an administrative decree as part of a law that implements various EU directives (Ddadue law), to speed up its adoption (and sidestepping substantial discussion in Parliament). On July 8th the first reading of the Ddadue law took place in the French Senate, and the proposed amendment to grant the Government the power to implement the provisions of the Copyright Directive by way of ordonnance (Amendment 23) was unanimously supported (in the adopted text article 24bs is the one authorizing the French Government to implement the Copyright Directive). The executive orders to transpose Articles 2 to 6 and 17 to 23 of the Copyright Directive will have to be issued within six months of the adoption of the law, and the executive orders for the remaining provision have to be issued within 12 months. The National Assembly still needs to approve the Ddadue law. The law was forwarded to the Assemblee Nationale for adoption.
HUNGARY
In Hungary, the COVID-19 situation was used as a justification to also speed up the implementation of parts of the Copyright Directive. In this case, the provision that was implemented via an administrative decree was the education exception in Article 5. The modifications to the existing Hungarian education exception were introduced via the emergency decree dated as of April 16th and were signed into permanent law as part of a larger bill that converts a large number of emergency decrees into permanent law (the articles dealing with the changes to the Copyright Act are §311-315). The new exception allows for the reproduction, distribution, on-the-spot presentation/performance, communication to the public and adaptation of protected subject matters for the purposes of digital and distant education. The Act only requires prior authorization if the adapted work is used for purposes other than digital or distant education. You can find a comment by Paul Keller here.
Besides this, last month the Hungarian Ministry of Justice and the Hungarian Intellectual Property Office (HIPO) published a consultation proposal on the transposition of the entire Copyright Directive into Hungarian law. In our submission to the consultation (Hungarian, English) we pointed out that omitting the implementation of the caricature and parody exceptions fails to properly implement Article 17 of the Copyright Directive.
THE NETHERLANDS
In the Netherlands the proposal for a law implementing the new Copyright Directive has been introduced into Parliament on the 11th of May. While the Netherlands has been one of the steadfast opponents of Article 17 during the discussions at the European level, the national implementation proposal fails to implement key provisions of the Directive that are aimed at protecting users’ rights. It is now up to the Dutch Parliament to amend the law to ensure that it meets the requirements of the Directive and protects freedom of expression from overblocking caused by automated filters.
Together with Bits of Freedom and supported by Vrijschrift.org, Open Nederland and Wikimedia Nederland, we have written a letter to the Members of the Dutch Parliament, providing them with a list of recommendations to improve the implementation of the law.
EU copyright reform – Brussels news
Update on the European Commission’s Guidance on Article 17
The Commission informed the Article 17 Stakeholder Dialogue participants that, as previously announced, they will seek their views on the Commission’s ‘initial thoughts’ for the Article 17 guidance. The Commission is finalizing the consultation document and hopes to share it with the stakeholders before the end of July.
Roadmap on Intellectual Property (IP) Action Plan
The Commission published the roadmap for its ‘Intellectual Property (IP) action plan’. The deadline for providing feedback is 14 August 2020. The IP action plan’s objective is “to ensure that the EU has in place well-calibrated and modern IP policies that contribute to the resilience and competitiveness of the EU’s economy and facilitate the digital and green transition, benefitting the EU society as a whole”.
EC Public Consultation on Digital Access to European Cultural Heritage
The Commission launched a public consultation on digital access to European cultural heritage. The deadline to provide feedback is 14 September 2020. The views gathered will feed into a possible revision of the 2011 Recommendation on digitizing cultural material and digital preservation. The Commission’s aim is to propose a more appropriate policy instrument to support the digital transformation of cultural heritage.
