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.

The post Copyright Directive – Implementation – July news appeared first on COMMUNIA Association.

The subject of the first webinar was the Press Publishers’ Right. Dimitar Dimitrov (Wikimedia) explained Article 15 in detail and presented our proposal for implementing it at the national level (check his presentation here). 

The second webinar was dedicated to the Text and Data Mining and Education Exceptions. Benjamin White (LIBER) analyzed Articles 3 and 4 (check his presentation here), and Teresa Nobre (COMMUNIA) covered Article 5 (check her presentation here). 

On the third webinar we looked into the most controversial provision of the new Copyright Directive, which deals with the Use of Content by Online Platforms. Teresa Nobre explained the structure and functioning of Article 17 and Paul Keller (COMMUNIA) presented our vision for its national implementation (the presentation is available here). 

The fourth and last webinar focused on Cultural Heritage Provisions. Stephen Wyber (IFLA) looked into the preservation exception on Article 6 (check his presentation here), Ariadna Matas (Europeana) guided us through the complex provisions dealing with out-of-commerce works (Articles 8-11) (check her presentation here), and Paul Keller provided an overview of the most pressing issues around the public domain provision (Article 14) (check his presentation here). 

We would like to thank everyone who participated in our events and we are looking forward to organizing another edition of our Copyright Directive Webinars in the near future.

The post Video Recordings from our Copyright Directive Webinars appeared first on COMMUNIA Association.

The Copyright Directive Webinars are aimed at local advocates and national policymakers and will be conducted by COMMUNIA members and experts that were involved in preparing our Implementation Guidelines. 

We will hold four webinars of one hour each, as follows:

• 16/06 (Tuesday) – Press Publishers’ Right (Art. 15): Dimitar Dimitrov
• 17/06 (Wednesday) – Text and Data Mining and Education Exceptions (Arts. 3-5): Benjamin White and Teresa Nobre
• 23/06 (Tuesday) – Use of Content by Online Platforms (Art. 17): Teresa Nobre and Paul Keller
• 24/06 (Wednesday) – Cultural Heritage Provisions (Arts. 6, 8-11, 14): Stephen Wyber, Ariadna Matas and Paul Keller 

All webinars will take place from 10.00am to 11.00am CET. You can register for the webinars of your choice here. Remember to register for the seminar up to 24 hours before it starts. We have a limit of 30 participants at each seminar, so please don’t register if you don’t plan to show up. The access info will be shared with those who signed up. 

The Copyright Directive Webinars are part of a wider implementation project of COMMUNIA and its members Centrum Cyfrowe and Wikimedia, which includes a range of activities to make sure that local communities in as many Member States as possible are aware of their national legislative processes and participate in those processes. 

This project is implemented with a grant from the Open Society Foundations.

The post Copyright Directive Webinars appeared first on COMMUNIA Association.

EU implementation – country updates from last month

Sweden

The Swedish Ministry of Justice recently closed the public consultation on the implementation of Articles 3 to 12 of the Copyright Directive. The Ministry shared a document containing only the opening remarks on how those Articles should be assessed and implemented (according to the officers at the ministry) and the deadline for submitting opinions on those positions ended on 20 March. The document shared by the Ministry of Justice as a part of the public consultation is not the official position of the Swedish Government. The memo serves as a starting point for discussions about the directive and includes a number of questions regarding the articles for the stakeholders involved. 

France

The French audiovisual reform, which transposes the Audiovisual Media Services (AVMS) Directive, as well as Article 17 of the Copyright Directive, was subject to discussion and voting in the National Assembly’s Culture and Education (CULT) Committee, on the first week of March. The CULT Committee worked its way through 1.327 amendments to the proposal. On 5 March, the CULT Committee finalized this effort and approved the amended text. The approved text, in what concerns the implementation of Article 17, is not substantially different from the original proposal that we analyzed here. The text is now scheduled to be discussed in the Assembly’s Plenary session at the beginning of April. The relevant documents will be made available here. 

Germany

The German Ministry’s implementation proposal – covering not only the new press publisher’s right (Article 15) but also the new copyright exceptions (Articles 3 to 7) and the provision on fair compensation (Article 16) – was subject to public consultation until 31 January 2020.  The full text (in German) is available for download here. We have submitted our response regarding the proposed implementation of Article  5 of the Directive, which is in our view the worst-case scenario for implementing the educational exception, since it allows the exception to be switched off by licenses in certain cases, thus setting a dangerous precedent for user rights. We had submitted a response to the German public consultation on the implementation proposal for Article  5 of the Directive (the education exception), here it is: Germany sets a bad example with the proposed implementation of the new education exception.

EU copyright reform – Brussels news

TDM and technical blocking from publishers

The Association of European Research Libraries (LIBER) issued a warning that the new Text and Data Mining (TDM) exceptions contained in the DSM directive can easily be undermined by technical blocking from publishers. LIBER has come to this conclusion based on the results of a survey on content blocking, carried out by LIBER’s Copyright & Legal Matters Working Group and the UK Libraries and Archives Copyright Alliance (LACA). The submissions to the survey so far confirm fears that Technical Protection Measures (TPM) can be abused by rightholders to limit the usefulness of the exceptions contained in the directive. See our blogpost  here.

EU Art. 17 Stakeholder Dialogue Meeting Postponed due to COVID-19

The Commission has informed the EU Article 17 Stakeholder Dialogue meeting participants that the meeting initially scheduled for 30 March has been canceled and is being postponed until after Easter due to meeting restrictions following the COVID-19 outbreak. This does not mean that the Commission has stopped working on the guidelines or that stakeholders should stop providing input to the Commission – quite the contrary!

Journalists and art. 17

The European and International Federations of Journalists (EFJ/IFJ) issued their joint position paper on the implementation of Article 17 of the Copyright Directive (in the context of the Commission’s Article 17 stakeholder dialogue). Their main requests are as follows:

• More transparency on existing agreements
• Fair remuneration in all media sectors: “Those receiving revenue from OCSSPs [online content-sharing service providers] for the use of journalistic works should redistribute a fair share to journalists contracted by them. Journalists should receive fair remuneration regardless of the sector they work in – print or broadcast – or the type of content they produce.”
• Livestreaming should be remunerated and better protected: “Platforms generating revenue from live streaming should remunerate rightsholders, more efforts should be done to tackle piracy and loss of revenue resulting from it for rights holders and authors.”

The post Copyright Directive – Implementation – March news appeared first on COMMUNIA Association.

Alongside with our members (Wikimedia, Creative Commons and Centrum Cyfrowe Foundation) we want to make sure that local communities in as many countries as possible participate in the national legislative process and provide input on how to shape national rules to ensure user rights and access to knowledge are strengthened, not weakened.  

In order to build capacity we have organized a Transportation Bootcamp – an opportunity for activists to meet, share experiences, learn about the challenges related to transposition, think about arguments and tactics. For this 35 people from various communities (Wikimedia, Creative Commons, digital rights activists and GLAM experts) gathered in Warsaw, from October 11 to 13, to share and learn. 

At the Bootcamp we explained the (soon to be published) suite of documents with implementation guidelines prepared by a group of legal experts. We  also invited experts and policy makers that have been active on this reform over the past years to provide insight to activists. We started planning national activities with communities. We got to know each other. And we realized (once again) how many question marks these directive leave for national legislators to decide – and how much is still to be done. 

The Member States have until 7 June 2021 to transpose the Copyright in the Digital Single Market Directive into their national laws. This once-in-a-decade change in copyright rules is a reason we have decided to work with activists in Member States on their national transposition (publishing position papers, organising events, contacting lawmakers, coalition building, etc.). If you feel like participating in this process in order to support access to knowledge, feel free to contact us: transposition@communia-association.org – we’re happy to have you on board with our project! 

The post The Transposition Bootcamp – we continue working towards better copyright appeared first on COMMUNIA Association.

In our opinion, referring the Directive to the Court of Justice is a good step that can help clear controversies concerning Article 17. An independent court will assess issues that in the policy debate are usually dismissed by representatives of rightsholders as fear-mongering or disinformation.

The Republic of Poland seeks the annulment of Article 17(4)(b) and Article 17(4)(c), in fine of the Directive on copyright in the Digital Single Market. In the alternative, should the Court find that the contested provisions cannot be deleted from Article 17 of Directive without substantively changing the rules contained in the remaining provisions of that article, the Republic of Poland claims that the Court should annul Article 17 of Directive in its entirety.

The Republic of Poland raises against that the contested provisions of the Directive a plea alleging infringement of the right to freedom of expression and information guaranteed by Article 11 of the Charter of Fundamental Rights of the European Union. It claims specifically that the imposition on online content-sharing service providers of the obligation to make best efforts to ensure the unavailability of specific works and other subject matter for which the rightholders have provided the service providers with the relevant and necessary information and the imposition on online content-sharing service providers of the obligation to make best efforts to prevent the future uploads of protected works or other subject-matter for which the rightsholders have lodged a sufficiently substantiated notice make it necessary for the service providers — in order to avoid liability — to carry out prior automatic verification (filtering) of content uploaded online by users, and therefore make it necessary to introduce preventive control mechanisms. Such mechanisms undermine the essence of the right to freedom of expression and information and do not comply with the requirement that limitations imposed on that right be proportional and necessary.

Unfortunately, the political context of the challenge raises some questions. For months, the ruling PiS party has been brandishing its opposition to copyright as an election argument against the biggest opposition party, Civic Platform. It should be underlined that the complaint was submitted two days before the elections of the European Parliament. This fact been used as an argument in the political debate just before the election—putting an unnecessary political spin on an issue that should be non-partisan.

The post Finally! The text of Poland’s Legal Challenge of Copyright Directive was published appeared first on COMMUNIA Association.

Last week, the Government of the Republic of Poland filed a challenge to the new Directive on Copyright in the Digital Single Market, specifically Articles 17(4b) and 17(4c). The Minister of Culture and National Heritage explained:

“in our opinion this mechanism introduces solutions with preventive censorship features. Such censorship is forbidden by both the Polish Constitution and EU law – the Charter of Fundamental Rights guarantees freedom of expression.”

Interestingly, by filing the charge, the Polish government fulfilled a political promise made during the recent electoral campaign. At that time, Polish Prime Minister Mateusz Morawiecki tweeted that the new law is “a disproportionate measure that fuels censorship and threatens freedom of expression.”

According to Art. 263 of the Treaty on the Functioning of the EU, Member States may bring an action for revision of an EU law on the following grounds:

• lack of competence,
• infringement of an essential procedural requirement,
• infringement of the Treaties or of any rule of law relating to their application, or misuse of powers.

The text of the challenge has not yet been made public. We can only assume that the complaint by the Polish Government is based on the last circumstance.

In our opinion, referring the Directive to the Court of Justice is a good step that can help clear controversies concerning Article 17. An independent court will assess issues that in the policy debate are usually dismissed by representatives of rightsholders as fear mongering or disinformation.

Former MEP Catherine Stihler, a staunch opponent of many aspects of the reform, reacted positively to the news. “This is an extremely welcome move by Poland which could save the internet from this deeply unpopular copyright crackdown,” she said, in her new capacity as CEO of the NGO Open Knowledge Foundation. Various NGOs have been waiting for some time for the independent body to resolve the issue of compliance of Article 17 of the new directive with the Charter of Fundamental Rights.

Unfortunately, the political context of the challenge raises some questions. For months, the ruling PiS party has been brandishing its opposition to copyright as an election argument against the biggest opposition party, Civic Platform. It should be underlined that the complaint was submitted two days before the elections of the European Parliament. This fact been used as an argument in the political debate just before the election—putting an unnecessary political spin on an issue that should be non-partisan.

We hope that the text will be published immediately and will lead to a substantive debate about the compliance of the Directive with the Charter of Fundamental Rights. Our member, Centrum Cyfrowe Foundation, is currently trying to get access to the complaint using freedom of information requests, so far without success.  

The post The Copyright Directive challenged in the CJEU by Polish government appeared first on COMMUNIA Association.

As long as Article 13 remains part of the package, the only sensible way forward it to make sure that Directive will be rejected by the European Parliament.

There is still time to act! Read along to find out what you can do in the last days before the vote.

Upload filters don’t (and can’t) respect users’ rights

Through the lens of copyright, Article 13 turns upside down how the web works. Instead of permitting users to upload content to platforms and resolving platforms from liability as long as they act quickly to remove infringing content once notified, Article 13 would require nearly all for-profit platforms that allow UGC to conclude licenses all user uploads. If they don’t obtain the licenses, then the only option will be to install upload filters and censor content in order to ensure that any unsanctioned content remains off their service. If the platforms don’t comply, they could be held liable for significant copyright infringement damages.

Even though there are some carve-outs that permit some smaller platforms to operate under different rules (at least for a little while), a reasonable outcome will be that Article 13 will drastically create negative effects to existing platforms and sow confusion for new players, thus dampening investment and the creation of novel platforms who won’t have the expertise or financial resources to enter into licensing deals or pay for expensive filtering solutions.

And since upload filters will become the status quo, this has other negative repercussions too. Filters can’t respect user rights because they are incapable of distinguishing between uses of a work that are infringing and those that are legal because they are covered by a copyright exception. Expecting platforms to respect user rights is a pipe dream, especially when they will be legally (and financially) obligated to reduce risk, and will simply block content. Why take a chance when there’s possibly a huge copyright infringement suit hanging over your head?

Not only upload filters, but….

Too often, the Directive is reduced just to a few controversial issues: content filtering or a new right for publishers. These are clearly crucial issues, but it is important to understand that the Directive includes other rules that can also have massive effects on Europe’s research and science, education, cultural, or AI industry–just to name a few.

The internet needs to be for the people. This means that core policies, like copyright law, need to be “for the people” by design. As our analysis shows, the final proposal for the Directive will likely be a legislative mixed bag. A range of positive developments concerning exceptions and limitations – rules that grant people the freedoms to use content for personal needs or public interest goals – are offered alongside other regulatory proposals that will have extremely adverse effects across all spheres of European society. And the deal on Article 13 is so bad that the only sensible way forward is to vote it down and rethink from scratch what a modern EU copyright framework should look like.

What YOU can do?

1. Let your MEPs know what you think about Article 13

If you’re in Europe go to https://saveyourinternet.eu/act/ to tell your MEPs you don’t support a copyright reform that turns how we create and share on the web upside down. If Article 13 can’t be removed, then policymakers should reject the reform outright and begin again.

1. Join Internet blackout day on 21 March

On this day, various Internet platforms will take actions to express their support against Article 13. Wikimedia Germany will be holding a black-out of their site that day. Other platforms will put up banners or messages to inform their users that they will be impacted by Article 13, and to encourage them to reach out to their MEPs and participate in the 23 March demonstrations.

3. Join protests all over Europe on 23 March

On this day, demonstrations are planned in various cities across Europe, but with the majority of events taking place in Germany, Austria and Poland. An overview of the demonstrations can be found here: https://savetheinternet.info/demos

The post Dear European Parliament – say #Yes2Copyright, but NO to #Article13 appeared first on COMMUNIA Association.

The fundamental rights safeguards crucial for ensuring compliance of the new Directive with the Charter of Fundamental Rights are in accordance with our four principles for minimising harm to users, creators and the internet. The letter signed by 27 fundamental and digital rights organizations raises concerns about the current state of play for Article 13 and calls for:

a) Transparency

Platforms control all information available on the internet and they are empowered to rank and take down content at their discretion. These platforms serve “the internet” as we know it now. Internet platforms are able to make decisions about freedom of expression with no transparency or accountability and the proposed Directive does not change that. In cases where content is blocked or taken down, it is critical that they properly justify their decisions; decisions that should be subject to proper redress mechanisms to ensure free speech and freedom of information. Besides providing an alternative dispute resolution, the EU could provide, for free, legal mechanisms across the EU to settle disputes between users, copyright holders and internet platforms.

b) Avoid automated filtering and blocking of content

We call on EU decision-makers to avoid introducing a mandatory monitoring obligation. Automated filtering software is notoriously inaccurate and is likely to catch lawful materials that do not breach copyright and that are essential for societal and political debate and comment, such as parody or quotation. Finally, a general obligation to monitor everything a user uploads to the internet is likely to cause a chilling effect on free speech, as users will be more likely to self-censor any content that could risk triggering (inaccurate) filtering software.

c) Sanctions

Article 13 covers changing the liability regime. The upshot of this is that platforms will be sanctioned if they let copyrighted content through their system without a licencing agreement. The proposed solution would create an incentive for platforms to be overly cautious and take down anything that presents even the slightest risk of legal exposure for the company. On the other hand, it is important to ensure that there are legal repercussions that disincentive platforms from removing content that does not violate copyright. The EU should create a rebalancing incentive. It is important that both rightsholders and platforms are liable for deleting lawful, user-generated content under the guise of copyright protection. This responsibility will positively change the attitude of the platforms and will also more effectively protect user content.

The post Trilogue: don’t give up on fundamental rights! appeared first on COMMUNIA Association.

For the ongoing trilogue negotiations, we urge you to reject obligatory or “voluntary” coerced filters and to keep the current liability regime intact. Enforcement of copyright must not become a pre-emptive, arbitrary and privately-enforced censorship of legal content.

Moreover, we ask you to hear the voice of academic research that a press publishers’ right will not have the intended effect and will instead lead to a less informed European society.

The letter is not only another call for a productive re-shaping of the future European copyright framework. It is also a strong voice against the predominant market-only narrative around the ongoing reform. NGOs continue to raise concerns related not just to the economic impact of the new Directive, but its deep influence on society, openness, fundamental rights and access to knowledge.

You can read the letter here (pdf).

Not surprisingly, the letter focuses on the most disputed provisions–Article 13 upload filters and Article 11 ancillary copyright for press publishers. Since the beginning of the legislative process COMMUNIA has worked on nearly all parts of the Directive comments (including the new educational exception, TDM provisions and others), and we regret that there seems to be little attention paid to these other important aspects as policymakers focus only on the most controversial parts of the plan.

The post Letter to the EU Council: Citizens’ rights matter in the copyright negotiations! appeared first on COMMUNIA Association.