Last week’s referral is the newest development in the legal saga that started in 1999, when Kraftwerk sued Setlur‘s producer Moses Pelham for the unauthorized use of the sample, and that has seen Germany’s highest court deal with the matter for the fifth time already. In response to the previous referral, the CJEU had established that the use of the sample was legal under Germany’s pre-2002 copyright rules but that it was infringing under the post-2002 copyright rules (that implemented the 2001 Copyright in the Information Society Directive). This conclusion was largely based on the finding that following the adoption of the 2001 Copyright in the Information Society (InfoSoc) directive, the concept of free use (“Freie Benutzung”) in German copyright law was against EU law.

The new referral arises from the fact that, as part of its 2021 Copyright revision and in order to bring German copyright law into compliance with the EU directives, Germany had removed the free use provision and at the same time introduced a new exception for the purpose of Caricature, Parody and Pastiche (§ 51a UrhG). The Hamburg Court of Appeals, to which the BGH had returned the case for a final determination, has subsequently ruled that after the introduction of the new exception in 2021 the use of the sample was in fact legal again as it constituted a use for the purpose of pastiche.

This decision has since been appealed by Kraftwerk, which is how the case came back to the BGH for another round and in the context of this appeal the BGH has now again asked the CJEU for guidance, this time on the meaning of the the term Pastiche in Article 5(3)(k) of the 2001 InfoSoc Directive from which the German exception is derived. This means that this time around the CJEU’s ruling in the case will have much wider implications than for German copyright law alone. It is very likely to determine the EU legal regime for sampling.

The referral to the BGH contains two separate questions which are described in the court’s press release (the text of the actual decision which contains the questions has still to be released by the BGH). According to the press release (translation ours)…

… the question first arises as to whether the restriction on use for the purpose of pastiche within the meaning of Article 5(3)(k) of Directive 2001/29/EC is a catch-all provision at least for an artistic treatment of a pre-existing work or other subject matter, including sampling, and whether restrictive criteria such as the requirement of humour, imitation of style or homage apply to the concept of pastiche.

The idea that uses for the purpose of pastiche serve as a sort of exception of last resort to safeguard artistic freedom is a welcome one, as it would protect freedom to create at the EU level, as we recommend in our Policy Recommendation #7. Considering that the pastiche exception is already mandatory in the EU, a positive answer to the first part of that question by the CJEU would ensure an harmonized protection of freedom of artistic expression at the EU level.

The CJEU has been suggesting for a while now that the principles enshrined in the EU Charter of Fundamental Rights are already fully internalized by EU copyright law, namely through the existing list of EU exceptions. As we have noted in our Policy Paper #14 on fundamental rights as a limit to copyright during emergencies, that is not necessarily the case, as the existing exceptions do not appear to have exhausted all the fundamental rights considerations that are imposed by the Charter, and on the other hand not all of those balancing mechanisms have yet found full expression in the national laws of the EU Member States.

With this referral, however, the court will have the opportunity to analyze whether the EU copyright law is sufficiently taking into account artistic freedom considerations. In our view, an interpretation of the pastiche exception in light of that fundamental freedom should lead the Court to provide a broad scope that covers all forms of artistic treatment protected by the Charter.

In the press release the BGH expresses a very similar concern noting the inherent conflict between the rigid EU copyright system and the freedom of (artistic) expression:

The pastiche exception could be understood as a general exception for artistic freedom, which is necessary because the necessary scope of artistic freedom cannot be safeguarded in all cases by the immanent limitation of the scope of protection of exploitation rights to uses of works and performances in a recognisable form and the other exceptions such as, in particular, parody, caricature and quotation.

This understanding of the Pastiche exception would also align with the intent of the German legislator when introducing it in 2021. In his 2022 study on the Pastice Exception conducted for the Gesellschaft für Freiheitsrechte, Till Kreutzer notes that

The German legislator has deliberately phrased the pastiche term in an open manner. It is clearly stated in the legislative materials that sec. 51a UrhG is intended to have a broad and dynamic scope of application. The pastiche exception serves to legitimize common cultural and communication practices on the internet, especially user-generated content and communication in social networks. It is supposed to be applied to remixes, memes, GIFs, mashups, fan art, fan fiction and sampling, among others.

In the context of this study Kreutzer proposes the following “copyright-specific definition” of pastiche and concludes that the concept covers the practice of sampling:

A pastiche is a distinct cultural and/or communicative artifact that borrows from and recognizably adopts the individual creative elements of published third-party works.

It will be interesting to see how the CJEU will approach the same task. In this context the second question formulated by the BGH is slightly more troubling. Here the BGH wants to know …

… whether the use “for the purpose” of a pastiche within the meaning of Article 5(3)(k) of Directive 2001/29/EC requires a finding of an intention on the part of the user to use an object of copyright protection for the purpose of a pastiche or whether the recognisability of its character as a pastiche is sufficient for someone who is aware of the copyright object referred to and who has the intellectual understanding required to perceive the pastiche.

Taking into account the facts of the Metall auf Metall case this question does not make much sense. In 1997, when Nur Mir was recorded, the concept of pastiche did not exist in German copyright law (and neither did the InfoSoc directive which introduced the concept at the EU level). This makes it pretty much impossible for the record producers to have had the intention to use the snippet from Metall of Metall for the purpose of pastiche — a purpose that according the the BGH itself still need to be defined by the CJEU.

For the reasons of legal certainty alone the CJEU should reject the intention requirement and base any definition on the characteristics of the use alone, as suggested in the above quoted definition developed by Kreutzer.

In any case the new BGH referral is a very welcome development in the Metall auf Metall saga. It provides the CJEU with the much needed opportunity to clarify this important concept that played a major role in the recent discussions about Article 17 CDSM Directive. In order to secure a majority for the directive, the EU legislator made the pastiche exception mandatory in an effort to safeguard transformative uses of copyrighted works on user generated content platforms.

It would only be fitting that the final legacy of Kraftwerk‘s narrow-minded attempt to weaponize copyright to limit the creative expression of a subsequent generation of artists would almost three decades later result in a broad conceptualisation of pastiche as safeguarding artistic expression across the EU.

The post Do 90s rappers dream of electric pastiche? appeared first on COMMUNIA Association.

The initial Czech approach to implementing the provisions of Article 17 has been disappointing. The government’s draft bill was largely limited to restating the provisions of Article 17 without introducing any ex-ante safeguards against overblocking or any meaningful remedies for users whose uploads are blocked or removed by automated upload filters. The proposal also included a few positive elements, such as a targeted definition of OCSSPs and an amendment of the existing caricature and parody exception in the Czech copyright act to explicitly include pastiche.

In February of last year, we pointed out the shortcomings of the Article 17 implementation in a position paper that we published together with Open Content, Wikimedia CZ, Iuridicum Remedium and “Za bezpecny a svobodny internet“. In April of this year during the subsequent parliamentary proceedings, Pirate Party MP Klára Kocmanová tabled a set of amendments designed to introduce additional safeguards against overblocking into the text.

During last week’s third reading of the bill in the Chamber of Deputies, these amendments resulted in a much better national implementation of Article 17 that substantially alters the government’s original proposal and incorporates some practical rules for platforms to implement those obligations. This is especially interesting since the Czech Republic is one of the first countries to proceed with its implementation after the CJEU ruling in case C-401/19 has brought more clarity on the safeguards that need to be included in national implementations of Article 17.

The amendments adopted last week modify § 47 — which implements the licensing and filtering obligations from Article 17(4) — and introduce a new § 51(a).

Two new paragraphs were added to the proposed § 47 of the Copyright Act: A new paragraph (4), which implements the first sentence of Article 17(8) and proibits general monitoring of content uploaded by users of online platforms; and a new paragraph (3), which looks like an attempt to integrate the criteria developed by the Advocate General in his opinion in Case C-401/19 directly into the Czech Copyright Act. The latter limits the use of automated content recognition technologies that results in the blocking or removal of uploads to cases where the uploads are “identical or equivalent” to a work that rightholders have requested to be blocked. The Article further defines that (translation via deepl):

Identical content means identical content without additional elements or added value. Equivalent content means content which differs from the work identified by the author only by modifications which can be considered as insignificant without the need for additional information to be provided by the author and without a separate assessment of the lawfulness of the use of the work with modifications under this Act.

This language inserts one of the core findings of the CJEU ruling — that platforms can only be required to detect and block content on the basis of the 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 the platforms — into the Czech implementation. While it does so by referencing concepts developed by the AG, instead of the criteria from the final judgement, it is a welcome addition that will offer a better protection to users’ rights than the literal implementation proposed by the government.

The newly added § 51(a), on the other hand, introduces remedies for cases where platforms repeatedly block or remove lawful user uploads. As we have argued previously, one of the most problematic parts of Article 17 is that it includes strong incentives for platforms to remove user uploads (because they otherwise risk being held liable for copyright infringement) but does not clarify what kind of risks platforms face when their use of upload filters violates users’ freedom of expression.

The newly introduced § 51(a) of the Czech Copyright Act would address this issue by giving “legal persons authorised to represent the interests of competitors or users” the ability to request “a ban on the provision of the service” when platforms “repeatedly and unlawfully” block or remove works uploaded by their users (all translations via deepl).

A situation in which platforms risk getting shut down as a consequence of repeatedly curtailing their users’ freedom of speech at the behest of rightholders may be an interesting thought experiment —it would completely reverse the power relationships between platforms and their users —but ultimately shutting down platforms for such violations is a problematic and short-sighted remedy.

Is it really the intent of the Czech lawmaker to shut down a platform as a sanction for blocking or removing lawful uploads and under what conditions would such an extreme measure be imposed? The blocking of an entire platform is clearly counterproductive to the intent of promoting freedom of expression, as it would result in the inaccessibility of all content available on the platform. This makes the remedy introduced in § 51(a) disportionate, which is even more problematic since the article also implies that it can be invoked by competitors.

It is unclear how the drafters of the amendment envisage § 51(a) to work, but it seems clear that — as adopted by the Chamber of Deputies — it will do much more harm than good. While it provides a powerful incentive for platforms not to overblock, invoking this remedy would result in substantial collateral damage that negatively affects the freedom of expression of all other uses of the affected platform.

So what could a more reasonable — and less harmful— remedy look like? What if instead of threatening to shut down the offending platform, § 51(a) threatened to shut down the upload filters instead: If it would prohibit the provision of the automated content recognition (ACR) system for the purpose of blocking or removal of user uploads?

Such a remedy would be much more proportionate, as it addresses the root of the problem (the malfunctioning ACR system) instead of attacking the host (the platform). It would also not cause any collateral damage for other users of the offending platform. It would also be in line with the CJEU’s reasoning as it would prevent filtering systems that do not comply with the standards set by the court from being used.

Shutting down ACR systems that repeatedly overblock would still provide platforms with a powerful incentive to get their systems calibrated right. Given the overall volume of uploads that they have to deal with, platforms do have a very strong interest to be able to rely on automated filters for removing manifestly infringing uploads.

For all of these reasons it seems imperative that the Czech legislator takes another good look at the scope of the remedy introduced in § 51(a). Adding explicit remedies against overblocking is an important element of balanced national implementations, but in its current form the Czech approach risks throwing out the baby with the bathwater.

However, if the scope of the injunctive relief would be limited to banning the continued provisions of overzealous upload filters, the proposed Czech implementation of Article 17 could even become a template for other Member States seeking to bring their implementations in line with the requirements of the CJEU while otherwise staying relatively close to the text of the directive.

The post Reflecting the Conclusions of the CJEU? The Evolving Czech Implementation of Article 17 appeared first on COMMUNIA Association.

The position of the European Commission is particularly interesting here as Article 17(10) explicitly tasks the EU’s executive body with “issue[ing] guidance on the application of this Article […] to balance fundamental rights and of the use of exceptions and limitations”. When the Commission published its guidance on the 4th of June 2021 it wisely noted the following:

The judgment of the Court of Justice of the European Union in the case C-401/19 2 will have implications for the implementation by the Member States of Article 17 and for the guidance. The guidance may need to be reviewed following that judgment.

Even though it is rather obvious that the CJEU judgment does indeed call for the revision of the guidance, the Commission has so far been silent on its plans to review it. This makes the publication of a Interdisciplinary Mapping report on the Copyright Content Moderation in the EU by the European Commission-funded ReCreating Europe project very timely. The 300-page report by João Pedro Quintais, Péter Mezei, István Harkai, João Carlos Magalhães, Christian Katzenbach, Sebastian Felix Schwemer, and Thomas Riis concludes with a series of “Recommendations for Future Policy Actions” (pdf — pages 300-302) most of which focus on the implications of the CJEU judgment for the Commission’s guidance. With regards to the Commission’s guidance, the researchers note:

• Considering the potential for legal uncertainty and fragmentation of the digital single market as regards copyright content moderation, we recommend that the Commission reviews its Guidance on art. 17 CDSMD (COM/2021/288 final) in order to provide clearer guidelines on the definition of OCSSPs, especially for small and medium-sized online platforms. […]
• We further recommend that the Commission reviews its Guidance in order to provide guidelines from the perspective of EU law as to the concrete implications of a “user rights” implementation of paragraph (7) in national laws. This should include, to the extent possible, concrete guidance on what type of actions users and their representatives (e.g., consumer organisations) may take against OCSSPs to protect their rights. […]
• We further recommend that the Commission’s Guidance is updated to fully reflect the Court’s approach in case C-401/19, as regards the complementary role of complaint and redress mechanisms under paragraph (9).
• The Commission should review its Guidance to clearly align it with the Court’s judgment in case C- 401/19, namely by clarifying that: (1) OCSSPs can only deploy ex-ante filtering/blocking measures if their content moderation systems can distinguish lawful from unlawful content without the need for its “independent assessment” by the providers; (2) such measures can only be deployed for a clear and strictly defined category of “manifestly infringing” content; and (3) such measures cannot be deployed for other categories of content, such as “earmarked content”. Member States should further adjust their national implementations of art. 17 CDSMD to reflect these principles.
• Take into consideration the approach proposed by the AG Opinion on how to limit the application of filters to manifestly infringing or “equivalent” content, including the consequence that all other uploads should benefit from a “presumption of lawfulness” and be subject to the ex-ante and ex-post safeguards embedded in art. 17, notably judicial review. In particular, the AG emphasized the main aim of the legislature to avoid over-blocking by securing a low rate of “false positives”. Considering the requirements of the judgment, in order to determine acceptable error rates for content filtering tools, this approach implies that the concept of “manifestly infringing” content should only be applied to uploaded content that is identical or nearly identical to the information provided by the rightsholder that meets the requirements of art. 17(4) (b) and (c) CDSMD.

Taken together, these recommendations would significantly improve the value of the Commission’s guidance and fix the glaring flaws that were introduced into the guidance in response to political pressure from rightsholders. In making these recommendations, the ReCreating Europe research team has effectively done the Commission’s homework and presented the Commission with a clear basis for bringing the guidance in line with the requirements and limits developed by the CJEU.

Given that a number of Member States are still working on their national implementations, the Commission should not waste time and issue an updated version of the guidance as soon as possible.

The full report also contains a number of additional policy recommendations. These include recommendations directed to member states that mirror parts of the recommendations for the Commission listed above. The final two recommendations focus on strengthening the position of creators who seek to monetize their content via online platforms and a recommendation to increase the transparency of automated copyright content moderation practices by online platforms by leveraging the provisions of the recently adopted Digital Services Act.

The post EU Commission-funded research report urges the Commission to fix its flawed Article 17 guidance appeared first on COMMUNIA Association.

Moderated by Paul Keller, the Salon started with Krzysztof Nichczynski (DG Connect, European Commission), who shared insights into the Commission’s thinking on the Sui Generis Database Right and on how it relates to the policy objectives related to increasing access to IoT data and Business to Government data sharing in the Public Interest. This was followed by a presentation by Martin Husovec (Assistant Professor of Law at LSE), who raised a number of concerns about the Commission’s approach and pointed out that there is a need for a more holistic approach to the Sui Generis Database Right. 

After this Felix Reda (former MEP & Project Lead control © at GFF) shed some light on the problematic nature of the Sui Generis Database Right by highlighting ongoing legal actions against open data activists in Germany that are facing civil and criminal liability for allegedly infringing the SGDR covering publicly produced geo-information. In the final Intervention Teresa Nobre (COMMUNIA) expressed our disappointment that the Commission has not conducted a more substantial review of the Database Directive and re-iterated COMMUNIA’s position: that the Sui Generis Database right should be repealed.

The discussion was followed by a Q&A session with the participants.

The post Video recording of the COMMUNIA Salon on the Sui Generis Database Right in the Data Act appeared first on COMMUNIA Association.

Over-blocking is real

So what can we learn from this first copyright transparency report? The overall take-away is that automated content removal is a big numbers game. In total YouTube processed 729.3 million copyright actions in the first half of 2021 of which the vast majority (99%) were processed via Content ID (as opposed to other tools, such as Copyright Match Tool and the Webform). And while YouTube claims that ContentID is much more accurate and less prone to abuse than its other systems ContentID has still received 3.7 million disputes from uploaders claiming that the actions (these can be blocks/removals but also demonetisation actions) taken against them are unjustified. 60% of these disputes have ultimately been decided in favour of the uploaders, which means that in the first half of 2021 Content ID has generated at least a 2.2 million unjustified copyright actions against its users on behalf of rightholders—The real number is likely to be much higher since research into notice and take down systems suggests that only a small fraction of users whose lawful uploads are removed make use of a complaint procedure that is available to them. In other words, over-enforcement (both unjustified blocking and unjustified demonetisation) is a very real issue that affects the rights of a substantial number of uploaders on a regular basis.

This number alone makes it very clear that concerns about over-blocking by automated upload filters are very much grounded in reality and underline the importance of strong ex-ante safeguards in national implementation of Article 17. It will be interesting to see how these numbers will change once Article 17 has been widely implemented. For instance, how will these numbers be affected once YouTube has adapted its automated filters to implement ex-ante safeguards such as the German rules on treating fragments shorter than 15 seconds as presumably legal or, more crucially, what will be the impact of limiting permissible ex ante filtering only to “manifestly infringing” content, as partly endorsed by the Commission’s Guidance and proposed by Advocate Øe in Case C-401/19 . In order to better understand the impact of such measures it would be helpful, if future editions of the transparency report would break out the numbers for the EU 27 — unless Youtube implements the required changes globally.

A Brussels effect?

There are signs in the transparency report that YouTube is indeed making global changes to its copyright management system to comply with the provisions of the CDSM Directive. The report details how YouTube has implemented compliance with the obligations imposed on OCSSPs in Articles 17(4) b and c. Rather than giving all rightsholders access to its most powerful rights management tool—access to Content ID remains limited to “movie studios, service providers and other publishers that have heavy reposting of copyrighted content”—YouTube has expanded access to the Copyright Match Tool, the use of which was previously limited to uploaders who are enrolled in the YouTube Partner Programme (YPP):

In October [2021], we upgraded the Copyright Match Tool to also find reuploads of videos removed through the webform, so that the tool isn’t only effective for and available to those willing to upload their video content onto YouTube. At the same time, we expanded access of this feature to any rightsholder who has submitted a valid copyright removal request through the webform, so that they will be shown subsequent reuploads of the videos they reported for removal. Since the expansion took place after the reporting period, the data in this report does not reflect these changes.

So, the Copyright Match Tool allows any rightsholders to automatically detect uses of works for which they have provided reference files (in the the form of videos uploaded to YT) and to prevent re-uploads of works that they have previously had requested to remove manually via the Webform. From what is disclosed in the transparency report it seems that rightsholders who do not have access to Content ID will not be able to automatically block uploads containing new uses of their works once they have been detected by the copyright match tool. Instead they need to manually “choose to archive the match and leave the video up, file a takedown request, or contact the uploader ”. While the need for manual intervention by the right holder before removal is very welcome from the perspective of protecting the rights of uploaders, this construction does raise the question why YouTube should be able to give one class of rightholders (those with access to Content ID) the ability to automatically remove matches without human intervention, while requiring human intervention from all others.

In any case it seems clear that the above described changes to the Copyright Match tool are directly inspired by the need to comply with Article 17 in EU Member States and it is interesting to see that this seems to have inspired changes to YouTube’s global approach to copyright management. This is another example of a trend in which global platform regulation standards are effectively set by the first legislator willing to act (as long as the market under control by that legislator is sufficiently big) — something that has also been referred to as the Brussels effect in relation to the GDPR.

Matching at upload time

Another (global) change to the YouTube’s Copyright management system is that YouTube now claims to be able to match content in real time:

We offer a number of methods for uploaders to address Content ID claims they receive. As of March 2021, uploaders are notified through our Checks functionality during the video upload process whether there is material in their video that may result in a Content ID claim. Before they publish the video, they may edit out the content or use the dispute process described below. These options are also available after a video is published and claimed.

The ability to do real-time matching is an important technical capacity that has been implicitly assumed to exist by earlier proposals for a user rights-preserving implementation of Article 17 (here and here) and subsequent national implementations of the directive. Without this ability it would be impossible to make distinctions between manifestly infringing and not manifestly infringing uploads at the point of upload, an ability on which these proposals and implementations—as well as the European Commission’s implementation guidance—hinge. The fact that Content ID only gained this capacity in March of this year should raise questions on how far it is proportionate for small and medium sized platforms to implement technical measures to comply with Article 17. 

All in all, YouTube’s copyright transparency report is a promising start. It finally provides some of the data that YouTube (and other platforms) should have provided for the purposes of the Article 17 stakeholder dialogue. Still the maxim of better late than never clearly applies here, especially since this first edition, covering the last six months before the implementation deadline of the CDSM directive, does provide some much needed baseline data to assess the impact of Article 17 as platforms start to bring their systems into compliance. For subsequent editions to be even more useful it would be welcome if YouTube could break out information per country/territory and could provide more detailed information on the type of matches that have triggered automated actions.

The post YouTube Copyright Transparency Report: Overblocking is real appeared first on COMMUNIA Association.

Earlier this week, together with epicenter.works, Gesellschaft für Freiheitsrechte, Wikimedia Austria, Creative Commons Austria and the Cultural Broadcasting Archive we have submitted extensive comments in response to the new implementation draft (PDF, in German) which we summarise below.

Article 17: A combination of the German implementation and the worst ideas from the Commission guidance

One of the strongest elements of the original implementation proposal was that it combined some of the approaches to safeguarding user rights and to preventing overblocking first put forward by the German Ministry of Justice in its implementation proposals with an attempt to stick as closely as possible to the text of the directive. Where the German implementation proposal (which in the meantime has become law) introduced the provisions implementing Article 17 in an entirely new act, the Austrian proposal includes them into the existing copyright act. The new proposal both maintains this approach and continues to follow the lead of the German legislator when it comes to the user rights safeguards. Unfortunately it combines this approach with introducing some of the worst elements of the Article 17 implementation guidance issued by the Commission earlier this year, the so-called “earmarking” provisions for commercially valuable works that allow right-holders to opt-out of most user rights protections. 

For the most part the Austrian proposal follows the lead of the German legislator. The minimum threshold for the use of fully automated filters contained in the proposal is the same as the one contained in the German implementation law: 15 seconds for audio and video, 160 characters for text and 250Kb for images. These thresholds are lower than what was included in the previous proposal, which is not unexpected since the Austrian legislator seems to have clearly decided to adopt the de-facto standard set by the German implementation. Seen in this light it is disappointing to see that the Austrian legislator has not fully followed the German approach here. Where the German law excerpts single images from the rule that uploads should be considered legitimate only if they do not use more than half of an original copyright work, the Austrian daft misses such a clarification. This would mean that memes and other forms of transformative content based on visual works are not protected against overblocking. It remains unclear how the requirement not to use more than half of a work can ever be meaningfully fulfilled in the case of an image.

Other elements where the Austrian draft falls behind the standard set by the German legislator are the protection of legacy content from automated retroactive removal, provisions protecting openly licensed and works in the public domain from wrongful blocking and the failure to include a collective redress right for users’ organizations to file cases against platform operators that systematically fail to meet their obligations to protect legitimate uses, which was included in the first draft of the Austrian proposal and has disappeared since. Like the German legislator, the Austrian Ministry of Justice regrettably continues to insist on including the new neighbouring right for press publishers within the scope of Article 17, even though the directive is clear that it is in fact out of scope.

A new exception for parody, pastiche and caricature that only applies to uses on large platforms

Maybe the most problematic aspect of the new Austrian proposal is how it would implement the exception for caricature, parody and pastiche. Unlike many other EU member states, the Austrian copyright act currently does not contain such an exception based on the optional exception contained in article 5.3(k) of the InfoSoc directive. Since Article 17(7) of the DSM directive makes this exception mandatory, the new draft now proposes to implement such an exception, but only for uses of works that are made available via the types of platforms covered by Article 17. This approach which would result in a situation where using a work for parody on YouTube would be legal, while the same use of the same work on a non-commercial platform or a private website would be illegal, defies belief. The DSM directive itself makes it explicit that the provision in Article 17(7) is there because these exceptions safeguard users’ fundamental rights, and it is hard to understand how the Ministry of Justice can come to the conclusion that fundamental rights deserve protection only on commercial platforms. 

This is why back in 2019 more than 60 eminent copyright scholars remarked that “a rational national lawmaker implementing the E&Ls in Article 17(7)[…] should take this opportunity to fully harmonize the respective national E&Ls beyond uses concerning [online platforms]”. In other words, limiting the scope of the new exception to uses on online platforms makes no sense and should be fixed before the draft becomes law.

Other bits and pieces

The implementation proposal contains a number of other shortcomings that need to be fixed to bring it in line with the requirements of the directive. This includes an attempt to subject the new press publishers’ right to compulsory collective management. This is problematic as it would effectively prevent press publishers from granting licenses (including open licenses) for free if this aligns with their chosen business model. 

A final problematic element of the new implementation proposal is the fact that it requires remuneration for the use of out-of-commerce works (OOCWs) under the new fallback exception that allows cultural heritage institutions to make OOCWs in their collections available when there is no representative collective management organisation that could issue a license. Making such uses subject to remuneration goes against the logic of the out-of-commerce-works provisions introduced by the directive. By definition, any remuneration paid for the use of the fall-back exception would have to go to a collective management organisation that is not representative of the authors of the OOCWs in question. Consequently, it would be unable to pay the remuneration to the right category of authors. The remuneration requirement would make the use of the fall-back exception more difficult, while failing to compensate the actual authors of those works. It is therefore an unnecessary and unjustified barrier to the use of out-of-commerce works.

Next steps

It is generally expected that the Ministry of Justice will introduce a revised draft (that will hopefully contain a number of the fixes that we have proposed in our submission) into parliament later this year.

The post Our response to the new Austrian copyright implementation proposal appeared first on COMMUNIA Association.

This post will take a closer look at the provisions implementing Article 17 of the Directive into German law. As we had noted in our analysis of the original discussion draft from June last year, the German legislator is proposing to implement these provisions into a new act that is separate from the copyright act: the “Act on the Copyright Liability of Online Sharing Content Service Providers”. By now the proposal for this act has undergone two public revisions. After the first discussion draft in June, the Ministry of Justice published a revised draft (“Referentenentwurf“) in October of last year. This revised version maintained the core user rights safeguards underpinning the original proposal (a new remunerated exception for minor use and the ability for uploaders to flag uploads as legitimate) while making a few changes to the way the pre-flagging mechanism works. 

A step back for user rights

Just as the original discussion draft, the Referentenentwurf drew massive criticism from rightsholders that was primarily directed at the user rights safeguards contained in the proposal. Unfortunately the Ministry of Justice has now caved in to some of these demands and as a result  the user rights safeguards have been further cut back in the final proposal adopted by the government (“Regierungsentwurf“).

The most substantial change in the Regierungsentwurf concerns the legal mechanism for ensuring that user rights are protected in line with the requirements of paragraph 17(7). The original proposal relied on a new exception that legalised minor uses of copyrighted works (any use consisting of less than 20 seconds of audio or video, 1000 characters of text or images smaller than 250Kb) and would have prevented platforms from blocking such uses. 

In the updated proposal this exception is gone and has been replaced by a more limited construction of “uses presumably authorised by law” which cannot be blocked automatically. For a use to be “presumably authorised by law” it needs to fulfil the following cumulative criteria:

1. The use must consist of less than 50% of the original protected work,
2. The use must combine the parts of the work with other content, and
3. 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 the use 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 (neither at upload or at a later stage). This new approach is problematic in at least two regards: Firstly, it excludes all uses where more than 50% of an underlying work is used and secondly the threshold of 160 characters of text (that is the result of massive pressure from press publishers) is completely impracticable as it allows automated blocking of uploads based on extremely short snippets of text such as a single sentence. The new “less than 50% of the original” threshold means that some uses that clearly fall under exceptions and limitations (including the ones for quotation, caricature, parody and pastiche explicitly mentioned in paragraph 17(7)) can be automatically blocked at the request of rightsholders. 

Two steps forward in the implementation discussion

While these changes have resulted in a weaker level of protection of users’ rights , the proposal still manages to provide meaningful procedural safeguards for users, that limit the ability of rightsholders and platforms to deploy fully automated upload filters. To ensure that “automated procedures” deployed by platforms in order to  comply with their requirements under Article 17(4) do “not result in the unavailability of content uploaded by users if the use is authorised by law or does not infringe copyright”, the proposal prescribes the following procedure:

1. If an upload matches a work that a rightsholder has requested to block, the platform needs to determine whether the match meets the initial criteria for “uses presumably authorised by law” as outlined above.
2. In the case of “minor use” no further action of the user is required. If however the use is not minor, the platform needs to inform the user of the blocking request and about the need for uses to be authorised by law, and give the user the ability to flag the use as legal.
3. If the conditions for “uses presumably authorised by law” are not met, the platform must block the content and inform the user that she can file a complaint (that needs to be justified). Content has to stay down until the complaint is resolved (if the user does not file a complaint the content stays blocked).
4. If the conditions for “uses presumably authorised by law” are met, then the content stays up and the rightsholder is informed about this fact. The rightsholder can then file a complaint, and the content stays up until the dispute is resolved (if the rightholder does not file a complaint the content stays up as well).
5. If the rightsholder is a “trusted rightsholder”, and after a human review they decide that the use is evidently infringing and commercially harmful, they can request that the content is taken down immediately until the dispute is resolved.

Complaints submitted by rightsholders and users must be processed by the platform (or an entity designated by the platform) within one week. If the use is found to be legal then it must stay up (or be reinstated, if it had previously been blocked). If the use is found to be infringing then it must be taken down (or remain unavailable if it had previously been blocked).

Illustration of the Article 17 workflow by the German Ministry of Justice and Consumer Protection (BMJV). See our own more detailed illustration here.

Despite the substantial weakening of the standard for identifying uses that cannot be blocked automatically that it has undergone since the initial version, the German proposal still manages to provide meaningful safeguards against over-blocking. In broad lines, the German proposal follows the model that we had presented at the sixth meeting of the Commission’s stakeholder dialogue almost a year earlier. While some of the parameters (most notably the 160 characters maximum for minor uses, and the requirement that a use must contain less than 50% of an original work) are deeply flawed, the core mechanism to comply with the requirements in Article 17(7) remains unchanged: automated filtering without any human oversight must be limited to uploads that are classified as manifestly infringing. 

It is welcome  to see that, so far, this guiding principle has survived all attempts of weakening the user rights safeguards in the German implementation discussion. In this context it is important to note that the German proposal does not stand alone in recognising this guiding principle: the same principle is present in the Commission’s draft implementation guidance, the recent Austrian implementation proposal and it has been endorsed by a large group of copyright scholars as early as in the fall of 2019. However, it is questionable however whether the specific thresholds chosen by the German government are sufficient to meet the requirement of Article 17 (7) that legal content must not be blocked, given that examples abound where perfectly legal uses would fail to meet those increasingly strict thresholds.

The German proposal will now be discussed in the German Parliament with a first reading scheduled at the end of March. On the 17th of March, ahead of this reading we will organize a COMMUNIA salon in which we will discuss the proposal in more detail with representatives of the German Ministry of Justice and Consumer Protection (additional participants to be confirmed) You can sign up for this event here.   

The post German government draft on Article 17: Two steps forward, one step back appeared first on COMMUNIA Association.

The procedure presents a radical departure from the approach that is underpinning other user rights-preserving implementation proposals (such as the Austrian and German proposals) and the Commission’s proposed (and much delayed) Article 17 implementation guidance. Instead of limiting the use of automated filters to a subset of uploads where there is a high likelihood that the use is infringing, the Finnish proposal does away with automated blocking of user uploads entirely, but not with automated detection of potential infringements. 

The Finnish proposal relies on mandatory use of content recognition technology by platforms and the rapid notification of rightsholders of uploads that match works for which rightsholders have provided them with reference information. However, platforms are only required to disable access to uploaded content after rightsholders have provided them with a properly justified request to block a particular upload:

While this approach bans automated filtering of user uploads, it still heavily relies on automated content recognition technology. The proposed “blocking procedure” requires that all platforms covered by Article 17 would need to have technology in place that can match uploads to reference information provided by rightsholders so that rightsholders can be directly notified when matching content is uploaded. Notifications sent to rightsholders also include the justifications that uploaders have provided at the time of upload as to why they consider a use of third-party content to be legitimate. 

Based on these notifications rightsholders have to evaluate if the upload infringes copyright or not taking “due note of the reasoning provided by the uploader”. If rightsholders come to the conclusion that an upload is infringing, they can issue a blocking request to the platform, which has to disable access to the upload (otherwise it will be directly liable for copyright infringement). The platform also needs to notify the uploader and provide it with a copy of the blocking request. The  uploader can then challenge the blocking of the upload through an independent Alternative Dispute Resolution (ADR) body. Outcomes of the ADR process are binding on the platform but can be challenged in court by either uploaders or rightsholders (see slides 14-26 of this presentation for a full overview of the process). 

A Particular balance

The Finnish proposal strikes a particular balance. While banning fully automated content blocking constitutes a very strong fundamental right preserving move, the proposal also makes rightsholders – who have an interest in any dispute over the use of their protected works in user uploads – the initial arbiter of such disputes. As explained during the hearing, the Ministry of Culture settled on this approach in order to comply with the requirement in Article 17(9) that 

Where rightsholders request to have access to their specific works or other subject matter disabled or to have those works or other subject matter removed, they shall duly justify the reasons for their requests.

So far Member States (and the Commission itself) have interpreted this provision to only apply in the context of the complaint and redress mechanism established by Article 17(9). User rights advocates have repeatedly highlighted the fact that this contextual limitation is not supported by the text of the Article and that therefore this provision must be interpreted to mandate that all blocking and removal requests (including the initial ones) must be duly justified by the requesting rightsholders. Based on Finland’s support for this literal reading of the obligation, fully automated takedowns become impossible to reconcile with the text of the directive. 

Unfortunately, banning fully automated blocking does not solve all user rights concerns. Tasking rightsholders with assessing if a particular use of their works is infringing or not gives rightsholders a lot of power over a user’s speech that is ripe for abuse. In recognition of the power imbalance between users and rightsholders, the Ministry has included a number of ex-post checks on their power: users have access to an impartial ADR mechanism, right holders can be held liable for damages or harm (not only economic) caused by wrongful blocking, and courts can bar rightsholders from using the blocking functionality if they repeatedly make wrongful blocking requests. 

The Ministry made it clear that it sees the ADR mechanism as a central element of its proposal and has clearly given this element a lot of thought: the body would be independent of both platforms and rightsholders, would publish its decisions which would be binding on platforms and it would have the power to recommend compensation for harm and/or damages caused to the user. 

While this proposal sets a new benchmark for the out-of-court complaint and redress mechanism required by the directive, its usefulness will largely depend on the ease with which users will be able to bring disputes in front of this body. For the ADR mechanism to offer meaningful protection to users from rightsholder overreach, the proposal requires users to appeal to the ADR body via a relatively complex process (see slide 30 from the presentation). While it is impossible to predict how uploaders will react to removals that they consider unjustified at this stage, it seems entirely plausible that instead of engaging with a complex system they will simply give up. 

A clear win for large platforms?

So what would the proposed “blocking procedure” mean for the different stakeholders? It seems clear that the main beneficiaries will be large platforms: The proposed mechanism would push the responsibility for determining the legitimacy of the use of third party content to users and rightsholders. The role of platforms is reduced to implementing blocking decisions taken by rightsholders and the decisions of the ADR body. As long as they act in line with these decisions, their liability risk is reduced to zero. 

This relatively privileged position of platforms comes at the expense of being required to implement automated content recognition technology that can do the initial content matching. Requiring platforms to have such technology in place may not be a problem for larger platforms but will likely represent a much bigger challenge (in terms of costs) for smaller platforms especially if they have to deal with multiple types of content at once. 

For rightsholders and users, the picture is less clear. The Finnish model allocates a lot of power to rightsholders, who have the right to decide whether uploads containing their works must be taken down or not. On the flip side, having to justify every single blocking request will require a lot of resources (without resulting in a corresponding increase in revenues).  

For users, having rightsholders assessing if their uploads are legitimate – instead of being subject to automated decisions – is not necessarily an improvement. Obviously, rightsholders are not neutral arbiters when deciding whether their own rights have been infringed, and are therefore unlikely to invest resources to ensure that user rights are respected. While users, and potentially also the organizations that represent them, would have the possibility of challenging wrongful blocking in court, they will not be able to force rightsholders to change their decision parameters, even if they lead to systematic overblocking. The only remedies available to discourage systematic overblocking are claims of damages to be paid by rightsholders for the harm caused by individual cases of wrongful blocking, and (at the very end of the line) the possibility for courts to exclude rightsholders from being able to issue blocking requests in case of repeated wrongful claims. 

Furthermore, the proposal requires substantial efforts from uploaders who want to exercise their right to use third party content under exceptions and limitations or who want to make sure that other types of legitimate uses are not wrongfully blocked. The model is based on the idea that users justify their use of third party content at upload. While this may make sense when sharing more elaborate creations, it seems unrealistic and unwanted to expect users to include justifications with every upload in more casual sharing contexts common on many social media platforms. Even if users make the effort of providing justifications for their use of third-party content, they have no guarantee that rightsholders will actually take those justifications into account when issuing blocking requests. In addition, the amount of information that users need to provide for “deblocking requests” will likely discourage a substantial portion of uploaders from trying to contest unjustified blocking by rightsholders.

For both rightsholders and users, this means that the proposed system will only work if the number of uploads that give rise to blocking requests is very limited. The number of blocking requests will be a function of the ability of platforms and rightsholders to conclude comprehensive licensing arrangements. Unless rightsholders are willing to comprehensively license platforms (even in sectors like the AV sector where this goes against current business practices) they will need to deal with substantial amounts of notifications that they will need to process if they want to effectively exercise their rights. Despite these potential shortcomings, the proposal by the Ministry of Education and Culture is another interesting contribution to the implementation discussion. It clearly shows that governments are struggling with reconciling Article 17 with national systems of fundamental rights protections. The Finnish government is the third government to make it clear that simply transposing the language of Article 17 into national legislation is not a viable option to implement the directive in a fundamental rights preserving way. The approach presented on Monday may not be perfect yet, but it is another approach that shows a real effort on behalf of a national legislator to protect users’ rights.

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On the other hand, we have the German approach that proposes to implement Article 17 via a separate “copyright-service-provider law” (“Urgeberrechts Diensteanbieter Gesetz”) that substantially departs from the language in an attempt to capture the structure and effet utile of the directive.

The German implementation proposal focuses on using the room for legislative discretion left by the directive to give practical meaning to the abstract requirements to protect user rights contained in the directive. It also adds measures aimed at ensuring that individual creators directly benefit from the new rules. As a result, the German implementation proposal is much closer to the legislative compromise struck by Article 17 than any of the more literal implementation proposals that have emerged so far.

Over the past few months, the German implementation proposal has come under intense pressure from exclusive rightsholders and some platforms who argue that the proposed approach does not adequately reflect the provisions of Article 17. Besides, rightsholders have also claimed that it violates national and international copyright law in multiple ways. A central argument of the opponents of the German implementation proposal is the claim that it strays too far from the text of the directive.

Given this background, it is interesting to see the first Austrian implementation proposal (that was circulated to stakeholders for feedback earlier this week) take a middle road between the two existing approaches. The Austrian implementation proposal does integrate the provisions from Article 17 directly into the text of the existing Austrian copyright act, thus deviating from the structure of Article 17, but mostly stays very close to the text of the directive. At the same time, it takes up key elements first introduced in the German approach: The non-waivable direct remuneration right for authors and performers, the protection of minor uses from automated filters, the ability for users to flag uploads as legitimate, and the ability for users’ organizations to act against platforms that engage in structural over-blocking. The result is a proposal that (similar to the German one) focuses on strengthening the position of creators and users, instead of leaving it up to platforms and large corporate rightsholders to set their own rules.

The Austrian proposal in more detail.

So let’s look at the Austrian proposal in more detail: Similar to the German proposal it introduces a direct remuneration right for authors and performers that will ensure that independent of existing contractual arrangements with publishers and other intermediaries, creators will be remunerated for the use of their works on platforms. As in the German proposal, this direct remuneration right can only be exercised via collective management organizations, which means that it will primarily benefit creators in sectors with existing collective management structures. In the German discussion this direct remuneration right has been strongly criticized by both platforms, who would prefer not to pay for obvious reasons) and by intermediary rightsholders, who prefer to control how much (or rather little) of their licensing revenue should go to the actual creators. Given that the need to make sure that creators benefit from the use of their works on platforms was the main argument for getting Article 17 in the first place, the fact that rightsholders are now trying to undermine the proposed direct remuneration right is more than a little bit hypocritical. 

On the other side of the balance, there are three main interventions that strengthen user rights. Where the German Ministry of Justice proposed a new “minor uses” exception that would ensure that minor uses of existing works cannot be automatically be blocked, the Austrian proposal takes a slightly different approach. It borrows the definition of “minor uses” from the German proposal (less than 20 seconds of audio or video, less than 1000 characters of text, images smaller than 250KB), but instead of making them subject to an exception, the Austrian proposal specifies in § 89a (1) that automatically blocking these “minor uses” without human review is not proportionate (and therefore platforms are not allowed to do this). This is an interesting use of the proportionality requirement from Article 17(5) of the directive that is based on the correct insight that measures (such as automated blocking) employed by platforms must be proportionate concerning all the objectives contained in Article 17 including the requirement not to block legitimate uses in 17(7) and 17(9). In the explanatory memorandum, the Ministry notes that “It is precisely the use of such small excerpts that will often be covered by an exception or limitation and thus be permitted”. While this may be a less controversial approach, authors and performers would be better off in the German proposal: By legalizing minor uses under an exception, the German proposal would create the possibility that they receive compensation for those uses.

Excluding minor use from automated filtering is one of two measures to ensure that the Austrian proposal complies with Article 17(7). In addition to this, the proposal also requires platforms to provide users with the ability to flag uploads as covered by an exception. § 89b (7) specifies that platforms must display uploads flagged by their uses as long as the legal nature of the use is obvious to the platform. While welcome in principle, this flagging mechanism is more limited when compared to the mechanism in the German proposal: It only applies to uses under the exceptions noted in Article 17(7) of the directive (with the notable omission of use for the purpose of citation) while it should apply to uses under all relevant exceptions. Besides, the flagging mechanism can’t be invoked if a work is used under open licenses or is not protected by copyright at all.

The third measure to protect user rights is the right for users’ organizations to file cases against platform operators that systematically fail to meet their obligations to protect legitimate uses. § 89b (7) allows user organizations to bring cases against platforms that systematically over-block user uploads in order to stop them from doing so. As noted in the explanatory memorandum the ministry sees this as an important additional safeguard to protect users against violations of their fundamental right to freedom of expression. The ability to bring collective action against platforms is further strengthened by an explicit requirement in § 89b (7) for platforms to provide users and user organizations with information on the functioning of any measures they employ to comply with Article 17. Taken together these two measures constitute an important check against over-blocking that is missing from all other implementation proposals. While the German proposal does contain the ability for users’ organizations to take platforms to court over overblocking, it lacks the necessary information rights over the functioning of blocking measures and the remedies to bring about systematic changes in the way that platforms police copyright-protected content.

A template for implementation?

In general, the Austrian example appears to fuse together some of the explicit attempts of the German Ministry of Justice to implement the directive in a way that minimizes the over-blocking of legal content, provides strong safeguards for user rights and ensures that authors and creators are directly remunerated, on the one hand, with the desire to stick as closely as possible to the text of the directive, on the other hand. The result may be the most realistic implementation proposal yet.

While the elements that we have outlined above will almost certainly come under attack from large corporate rightsholders (and possibly from the platforms as well), it is important to recall that, according to the Commission’s guidance proposal, it is simply not enough to do a literal implementation of the directive that does not specify concrete safeguards against automated blocking of legitimate content. Having closely watched the discussion on the European level and in Germany, the Austrian Ministry of Justice may just have shown us (and more importantly the other Member States still waiting to propose their implementations) a credible way for reconciling the conflicting requirements of Article 17 of the DSM directive.

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The defendants in this case are the European Parliament and the Council of the European Union. In addition, the European Commission and the governments of France and Spain intervened in the case on the side of the defendants. Advocate General Saugmandsgaard Øe was also present at the hearing.

Even for astute followers of the discussions around the implementation of Article 17, the hearing contained a number of surprises. While several Member States have been soldiering on with their national implementation proposals with little regard for the fundamental rights implications of Article 17, the hearing showed that the Court is taking Poland’s complaint very seriously and that the compliance of the contested provisions of Article 17 with the Charter is far from evident. Frequent reference was made during the hearing to the recent opinion of Advocate General Saugmandsgaard Øe in the YouTube and Cyando cases, which is highly critical of extensive obligations on platforms to police the copyright infringements of their users.

On the face of it, the case is about Poland’s request to annul Articles 17(4)(b) and (c) of the DSM directive. Poland argued its case, which essentially rests on the observation that while not explicitly mandating them, Article 17(4)(b) and (c) effectively require platforms to implement upload filters because there are no other effective means to comply with the obligations contained therein. Poland argues that this will lead to censorship and will limit the freedom of information of the users of online platforms.

According to Poland, the key problem with the directive is the move away from active participation of rightholders (as initiators of removal requests in the context of notice and takedown procedures) and instead handing the responsibility of removing infringing uploads over to platforms who will have to develop private enforcement systems to avoid liability for copyright infringement. Because they are not facing any comparable risk when they limit user rights by blocking access to legal content, this creates strong incentives for over-blocking. This in turn will result in censorship and violation of the fundamental rights to freedom of expression and information under the Charter. Consequently, the problematic parts of Article 17 should be annulled by the Court.

All other parties intervening in the case objected to this line of argument and stated that in their view Article 17 does not violate any fundamental rights. However, they presented strikingly contradictory interpretations of what Article 17 actually requires of platforms. There are two distinct lines of argument: The Commission, the Council and the European Parliament argued that that Article 17 contains enough internal safeguards to prevent users’ fundamental rights from being unduly limited. On the other hand, France and Spain argued that some limitations of fundamental freedoms are justified by the objective that Article 17 seeks to achieve.

Best efforts obligation vs an obligation of result

At the core of the issue is the uneasy relationship between the obligation to make best efforts to prevent the availability of specific works contained in Article 17(4)b and the requirement in Article 17(7) that any measures implemented by platforms must not lead to the prevention of the availability of works that do not infringe copyright. In its interventions the Commission made it clear that it views Article 17(7) as an “obligation of result” that establishes the stronger legal norm, which therefore takes precedence over the weaker “obligation of best efforts” in Article 17(4). In the course of the hearing both the Council and the Parliament backed this assessment. In other words, all three EU institutions made the case that where there is a conflict, the protection of the fundamental rights of users must be prioritised over requests by rightholders to block the availability of their works.

In response to questions about the mechanism proposed by the Commission in its guidance consultation, both the Commission and the Council expressed their belief that this conflict of norms can be reconciled by a mechanism that limits automated filtering to “manifestly infringing” uses of works and that requires human review of any matches where there is any likelihood that the use is legitimate. Given the absolute nature of the result obligation in Article 17(7), this would further mean that user uploads must remain available while they are under review and can only be removed once a platform has established that a use is indeed infringing.

In making these arguments in front of the Court, the European Commission effectively doubled down on the approach outlined in its guidance consultation, which has recently been subject to heavy criticism from a group of seven national governments including France and Spain. The Commission’s position is further strengthened by the Council and the Parliament’s interventions in front of the Court, which provided support for the Commission’s reasoning. While it remains to be seen whether the CJEU will be convinced by these arguments (the ruling is not expected until the summer of 2021), it seems clear that the Commission will have to build its implementation guidance on this line of argument. This could have considerable impact on how Member States have to implement the provisions of the directive.

A temporary inconvenience vs irreparable harm

While formally on the same side of the case, the two Member States intervening in the case (France and Spain) brought forward an entirely different line of argument to defend the legality of the directive, which at key points contradicted the arguments brought forward by the EU institutions. According to France and Spain, the proportionality of any limitations of freedom of expression in the directive must be established in relation to the purported objective of the directive. Both France and Spain argued that the directive seeks to address a power imbalance between certain platforms (online content-sharing service providers) and rightholders by bringing the first into the scope of copyright. In simple terms, this is done by establishing that these platforms are directly liable for communication to the public when they make available works uploaded by their users. As i have argued elsewhere, this view is based on a misunderstanding of the “true intent” of the legislator on the part of those national governments, who seem to consider the significant changes that have been made to the text of Article 17 from its inception to its final adoption to be a historic accident rather than an expression of the legislator’s will to protect users’ fundamental rights.

While both Member States concede that their interpretation of Article 17 will ultimately result in situations where measures to prevent the availability of works limit the freedom of expression of users, they argue that in such cases the ex-post complaint and redress mechanism contained in Article 17(9) provides sufficient protection for users’ rights. Both Member States disagreed vehemently with the position of the EU institutions and argued that any conflict between the fundamental rights of rightholders and users must always be resolved in favour of rightholders. Both argued that the harm to rightholders that can be caused by temporary availability of infringing works on platforms is much greater than any harm to users caused by the temporary blocking of non-infringing uploads. They further claimed that while infringing works could “go viral in mere seconds” causing “massive economic harm” to rightholders, requiring users to file complaints when non-infringing uploads are blocked and keeping these uploads offline while the complaints are reviewed would merely constitute a “temporal inconvenience” that is justified given the purported overall objective of the directive to strengthen the position of rightholders vis-a-vis platforms. Consequently, both France and Spain reject the mechanism proposed by the Commission in its guidance consultation as “incompatible with Article 17”.

It remains to be seen how far the Court will be convinced by this line of argument that hinges more on a proclaimed “original intent” of the directive than on its actual text. It is clear that France and Spain are effectively fighting a two-front battle. On one front, they argue that the Polish case is without merit. On the other, they attempt to undermine the EU institutions’ arguments on why the Polish case is without merit in order to defend their own maximalist interpretation of the provision. This contradiction was not lost on the Polish Government, which in its final remarks observed that the interpretation of Article 17 put forward by the Commission and the Council goes directly against what France has argued and that “this clearly shows that there is a problem with Article 17 as such”.

Questions by the Court

A substantial number of the questions from the Court and from the Advocate General focussed on better understanding the relationship between the best efforts obligation in Article 17(4) and the results obligation in 17(7) and the mechanism proposed by the Commission in its guidance consultation. Particular attention was paid to the question of whether uploads must remain available while they are under review or should be blocked until their legality has been confirmed. This strong focus on the guidance consultation almost gave the impression that the hearing was not so much held for the purpose of determining whether the contested provisions must be annulled, but rather to understand if the mechanism proposed by the Commission would achieve an internal balance of Article 17 that offers sufficient protection for the fundamental rights at stake.

One key weakness shared by all parties defending Article 17 was a total failure to point to any measures other than upload filters to effectively comply with the best efforts obligation contained in paragraphs (4)(b) and (c). Despite repeated questions from the bench, none of the parties could name alternatives to the use of filtering technologies. The Commission made a weak attempt to list a number of different methods for filtering (fingerprints, hashes, metadata, keywords), the Council invoked artificial intelligence (without providing any specifics) and Spain pointed to “fuzzy hashing”. In the end, none of the interventions managed to undermine the Polish claim that (at least given the current state of technology) the only effective way to comply with Article 17(4)(b) and (c) is the use of filters. As Poland pointed out in its final statement, the different technological approaches mentioned constitute different types of filtering technology, rather than alternatives to filtering technology.

A final set of questions revolved around the prohibition of general monitoring obligations in Article 15 of the E-Commerce Directive. The Court showed interest in the relationship between the blocking obligation outlined in Article 17(4) and the ban on general monitoring obligations contained in Article 17(8). On this issue, the AG seemed particularly sceptical that Article 17(4)(b) and (c) would not result in general monitoring. At one point he called the European Parliament “naive” for doubting that “major rightholders would submit long lists with 1000s of works to be blocked” as soon as the directive were in effect.

A long winter wait ahead

Based on yesterday’s hearing, it remains plausible that the CJEU might strike down the contested provisions in Article 17. If it does, this would likely be on the grounds that they constitute a general monitoring obligation in violation of the E-Commerce Directive and, consequently, the Charter of Fundamental Rights.

It is also conceivable that the Court could identify minimum criteria for the protection of the fundamental rights of users. While these could fall along the lines of the mechanism put forward by the Commission, this is far from certain at this stage. A decision along those lines could, however, turn elements of the Commission guidance from non-binding recommendations to legal obligations on Member States.

Given that a ruling will not take place until after the implementation deadline for the directive (the AG opinion is due on the 22nd of April 2021 which is only 6 weeks before the implementation date), the Commission will need to publish its guidance before the Court has ruled and Member States will need to make implementation choices without having access to the Court’s judgment.

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