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.

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The Directive is the most important European regulation of the digital sphere in the last several years. It will define the shape of copyright in Europe for years to come — and have spillover effects for regulation around the globe. We believe that the approved directive will not meet the goal of providing a modern framework that balances the interests of rightsholder and users, protects human rights and enables creativity and innovation to flourish. Instead, it is a biased regulation that supports one business sector, at the cost of European citizens.

In the last two and a half years, and especially since last June, we faced an extremely heated debate and intense legislative process. During this time, together with a broad coalition of activists, experts and organisations, we attempted to remove (or improve) its most controversial parts. In the last weeks, we supported an effort to amend the directive during the plenary, in a last attempt to remove the most detrimental provision — Article 13. Unfortunately, the European Parliament rejected a motion to vote on amendments to the Directive, with 312 MEPs voting in favor, and 317 voting against. This motion would have opened the door to remove Article 13 but keep the rest of the directive intact. It failed.

The Directive was therefore approved, with all the controversial elements that we have been criticising: content filters introduced by Article 13, new rights for publishers introduced by Article 11, and a mechanism for overriding copyright exceptions for education by private agreements introduced by Article 4/2.

European parliamentarians, together with the Commission and the governments of the Member States have given a strong signal of support to the entertainment industries and their incumbent players — at a dire cost to internet users and freedom of expression. We believe that it is an unbalanced approach that will have severe repercussions. These legal provisions will not only cost millions to small and medium sized European platforms, but most importantly put fundamental freedoms at risk and set dangerous precedents for user rights.

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But here we are now years later in the thick of the trilogue negotiations, and the EU legislator is finally trying to figure out what to do about Article 11. Similar to Article 13 and content filter, we expect that the final compromise text of the directive will include some version of the press publishers right.

The waivable press publishers right

Our long-held view remains: Article 11 should be removed from the copyright directive. The provision is patently harmful to journalism, access to information, and the digital single market. The option to make the press publishers right waivable is simply one way to slightly improve the press publishers right if deletion is impossible. If the negotiators can’t be convinced by the mountains of research, empirical evidence observed in prior trials, and near universal public opposition to this unnecessary right, then the legislator must do everything it can to mitigate the negative effects that would be faced by news publishers and news seekers in the EU.

One of the worst aspects of Article 11 is that it applies whether publishers want it or not. As written by Creative Commons recently, the press publishers right “would undermine the intention of authors who wish to share without additional strings attached, such as creators who want to share works under open licenses […] forcing publishers who use CC to accept additional unwaivable rights to receive payment violates the letter and spirit of Creative Commons licensing and denies publishers the freedom to conduct business and share content as they wish.”

The new press publishers right and commons

CC wrote that if including some version of Article 11 is unavoidable, it should include protections for works under open licenses, or in the public domain. For instance, the Council text included a provision that said, “When a work or other subject-matter is incorporated in a press publication on the basis of a non-exclusive licence, the rights […] may not be invoked to prohibit the use by other authorised users [or] works or other subject-matter whose protection has expired.”

The concerns of publishers

Small and medium-sized publisher are worried about the effects the unwaivable press publishers right will have on their operations too. In October the European Innovative Media Publishers sent a letter to the trilogue negotiators outlining how they will be harmed if Article 11 is adopted. They’ve also launched a petition that calls for the deletion of Article 11, or at least the introduction of mechanisms that would “reduce some of the collateral damage to small and medium-sized publishers.” The signatories believe that having their press publications incorporated into news aggregators and other online search tools obviously helps drive traffic to their content, without the need for requiring other payments from aggregators or news agencies. From their petition:

The introduction of a neighbouring right in Germany and Spain make it harder for us to grow online, reach new audiences and develop new markets. They create new barriers for entry for publishers to develop online. In Spain, we are even deprived of control over our own content, and obliged to charge via a collecting society, whether we like it or not. […]

We adamantly believe that any publisher’s right must give publishers the choice to consent to the sharing of their content online. Aggregators, search engines and other online services drive valuable traffic to publishers’ websites, particularly smaller or local ones; and this traffic referral creates huge opportunities to generate revenue through advertising.

Thus, one way to reduce the collateral damage of Article 11 is to make the press publishers right waivable. Even Google, which has basically threatened to shutter Google News throughout Europe if Article 11 passes, is now advocating for the ability of publishers to waive the press publishers right should it make its way into the compromise version of the directive. Google says, “the copyright directive should give all publishers the right to control their own business models and destiny by giving them the choice to waive the need for a commercial license for their content.”

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

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

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

You can read the letter here (pdf).

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

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

The letter is critical of the compromised proposed by the Bulgarian Presidency and calls upon COREPER to continue the discussions on the copyright reform. We ask for COREPER not grant the Bulgarian Council Presidency a mandate to negotiate with the European Parliament. From the letter:

We are deeply concerned that the text proposed by the Bulgarian Presidency in no way reflects a balanced compromise, whether on substance or from the perspective of the many legitimate concerns that have been raised. Instead, it represents a major threat to the freedoms of European citizens and businesses and promises to severely harm Europe’s openness, competitiveness, innovation, science, research and
Education. […]

With so many legal uncertainties and collateral damages still present, this legislation is currently destined to become nightmare when it will have to be transposed into national legislation and face the test of its legality in terms of the Charter of Fundamental Rights and the Bern Convention. We hence strongly encourage you to adopt a decision-making process that is evidence based, focussed on producing copyright rules that are fit for purpose and on avoiding unintended, damaging side effects.

The signatories of the letter include national organisations from across 25 EU Member States, representing human and digital rights groups, media freedom orgs, publishers, journalists, libraries, scientific and research institutions, educational institutions including universities, creator representatives, consumers, software developers, start-ups, technology businesses, and internet service providers. They repeat and amplify the voices raised previously to express their deep concerns about the artificial sense of urgency created by the Bulgarian Presidency.

(This week, two other important open letters were published: 169 professors of law and academics urge to oppose the new press publishers right. 55 European organizations do the same: “Enough is enough”).

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