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.

Taking place on Monday, September 19th, in Berlin at Robert Bosch Stiftung, Filtered Futures will discuss the consequences of the CJEU ruling on Article 17 of the Copyright Directive for fundamental rights. 

Registration for in-person attendance is now closed. It will be possible to follow the live stream of the conference here.

After the closing of the conference, COMMUNIA will be hosting a networking reception from 17:00 to 19:00.

Programme

08:45-09:15 Door Opening

09:15-09:45 Welcome and Opening Remarks by Susanne Zels (Robert Bosch Stiftung) and Felix Reda (GFF – Society for Civil Rights)

10:00-12:00 Session 1: Fragmentation or Harmonization? The impact of the Judgment on National Implementations – While the CJEU has rejected the Polish challenge to Article 17, the Court has formulated a number of requirements for ensuring that national implementations are fundamental rights compliant. In this light, the opening session of the conference will examine the consequences of the judgment for Member States’ implementations of Article 17. What are the requirements established by the judgment for national legislators? How do the existing national implementations measure up to these requirements? Which implementation strategies are available to those member states that still have to implement the directive? And have platforms already reacted to the existing national implementations?

• Bernd Justin Jütte (​​University College Dublin): Imperatives for implementing Article 17: the importance of national implementations.
• Finn Hümmer (Stockholm University): Implications from C-401/19 for national transpositions under the light of freedom of expression.
• Jasmin Brieske (Goethe University Frankfurt am Main): The impact of the enactment of the German OCSSP Act on selected online platforms.
• Christina Angelopoulos (University of Cambridge): The national implementations of Article 17 of the EU’s CDSM Directive.
• Moderator: Paul Keller (COMMUNIA)

12:00-13:30 Lunch Break

13:30-15:00 Session 2: Balancing Enforcement & Usage Rights in Practice – Protecting legal forms of expression from automated blocking decisions by online platforms is not just a task for the national legislators when transposing Article 17, but also a question of implementation of those provisions by regulators and courts. Who is going to ensure that filtering systems will leave legal uses of copyright-protected works unaffected in practice? How can the balance of competing rights be enforced in cross-border situations? How does the ban on general monitoring obligations as interpreted by the CJEU constrain the content moderation obligations of platforms – in the context of Article 17, but also when applied to other types of illegal content? Will the Digital Services Act improve users’ access to effective remedies against over-blocking?

• Natasha Mangal (University of Strasbourg): Regulating Creativity Online: Proposal for an EU Copyright Institution.
• Daniel Holznagel (academia): Don’t touch the ceiling – Why we should not narrow the EU no-monitoring-obligation-rules.
• Martin Husovec (London School of Economics): Mandatory Filtering Does Not Always Violate Freedom of Expression: Lessons from Poland v Council and European Parliament.
• Moderator: Felix Reda (GFF – Society for Civil Rights)

15:00-15:30 Coffee Break

15:30-17:00 Session 3: Beyond the Judgment: The Future of Freedom of Expression – In its ruling, the CJEU was of the view that the procedural safeguards present in Article 17 protect the ‘essence’ of the right to freedom of expression of the users of online sharing platforms. But many argue that filtering mechanisms can still pose real risks to fundamental freedoms and to the flourishing of parodies, caricatures and pastiche. Is the CJEU classical approach to proportionality balancing apt in a filtered online environment? Do we need a new conceptualisation of the ‘essence’ of fundamental rights? Can the case law from the CJEU and the European Court of Human Rights on freedom of expression offer avenues to better the future of parodic uses? Finally, are we moving towards a European Right to Remix?

• Kevin O’Sullivan (Dublin City University): A new conceptualisation of the ‘essence’ of fundamental rights.
• Sabine Jacques (University of East Anglia, Law School): A two-tier system for freedom of expression.
• Till Kreutzer (iRights.Law): Towards a European Right to Remix (?) – On the new Pastiche exception in the German Copyright Act.
• Moderator: Teresa Nobre (COMMUNIA)

17:00-19:00 Reception hosted by COMMUNIA

*All times are indicated in CEST.

The post The Filtered Futures conference programme is now live appeared first on COMMUNIA Association.

The CJEU decision on Article 17 of the copyright directive has defined a framework for the use of automated content moderation. The Court considers filtering obligations compatible with the right to freedom of expression and information as long as they are limited to use cases that allow for a robust automated distinction between legal and illegal content. In the context of Article 17, upload filters may therefore only be used by online platforms to block manifest infringements of copyright law. The Court leaves it up to the Member States to ensure that legal uses remain unaffected by their national transpositions of Article 17.

The judgment raises a host of important questions for the enforcement of copyright law as well as for the compatibility of upload filters with fundamental rights even beyond copyright law. To discuss these consequences, COMMUNIA and Gesellschaft für Freiheitsrechte are jointly hosting the Filtered Futures conference on Monday, September 19th, at Robert-Bosch-Stiftung in Berlin. Please see below for the preliminary conference programme. A more detailed version of the programme with session descriptions will follow in early September.

Registrations for attending the conference in person are now open. Please consider that participation is limited. Registrations will be considered on a first come, first serve basis.

CONFERENCE PROGRAMME:

08:45-09:15 Registration

09:15-09:45 Opening remarks (Felix Reda, GFF)

09:45-10:00 Coffee break

10:00-12:00 Session 1: Fragmentation or Harmonization? Impact of the Judgment on National Implementations (Christina Angelopoulous, Jasmin Brieske, Finn Hümmer, Bernd Justin Jütte. Chair: Paul Keller, COMMUNIA)

12:00-13:30 Lunch break

13:30-15:00 Session 2: Balancing Copyright & Usage Rights in Practice (Daniel Holznagel, Martin Husovec, Natasha Mangal. Chair: Felix Reda, GFF)

15:00-15:30 Coffee break

15:30-17:00 Session 3: Beyond filters: Impacts of the Judgment on Freedom of Expression (Sabine Jacques, Till Kreutzer, Kevin O’Sullivan. Chair: Teresa Nobre, COMMUNIA)

17:00-19:00 COMMUNIA Reception

Participation is free of charge and a light lunch will be served.

The post Join us for the Filtered Futures conference on 19 September 2022 appeared first on COMMUNIA Association.