Over the next five years, we need to remove the barriers that prevent knowledge institutions from fulfilling their public mission in the digital environment. Specifically, we need a targeted legislative intervention – a Digital Knowledge Act –  that enables knowledge institutions to offer the same services online as offline.

Such a regulation would require a few surgical interventions in copyright law, such as the introduction of a unified research exception (see our Policy Recommendation #9) and an EU-wide e-lending right (see our Policy Recommendation #10). However, it would mostly involve measures that fall outside of the scope of recent copyright reform discussions.

Above all, we’re envisioning a number of safeguards that would protect knowledge institutions against the abuse of property rights. Due to the complex and fragmented state of European copyright law, many institutions shy away from fully exercising their usage rights. We believe that an exemption from liability for those who act in good faith and believe that their activities are legal would mitigate this chilling effect (see our Policy Recommendation #17).

Another limiting factor for knowledge institutions in the digital realm are unfair licensing conditions. We believe that rightsholders should be obliged to license works under reasonable conditions to libraries as well as educational and research institutions.

Finally, knowledge institutions should be allowed to circumvent technological protection measures where locks prevent legitimate access and use of works, such as uses covered by limitations and exceptions (see our Policy Recommendation #13).

These demands are far from new and even the idea of a Digital Knowledge Act has been floating around in Brussels policy circles for a long time. Now it is up to the incoming legislators to show that they have the political will to tackle these problems in a comprehensive manner to unlock the full potential of Europe’s knowledge institutions.

The post A Digital Knowledge Act for Europe appeared first on COMMUNIA Association.

Open letter to the European Parliament

Dear Members of the European Parliament,

This week, on December 12, the European Parliament is scheduled to vote on an own-initiative report on the implementation of the 2018 Geo-blocking Regulation, including for audio-visual content. The IMCO Committee adopted the report on October 25, 2023, with opinions from CULT and JURI, through the support of a broad, cross-party majority. We urge you to follow the committee’s vote, adopt the report and pave the way for a revision of the Geo-blocking Regulation during the Parliament’s ‘24-’29 term.

With regard to audiovisual content, the report “highlights potential benefits for consumers, notably in the availability of a wider choice of content across borders” (p. 4). It also asks for a report of the Commission’s stakeholder dialogue on the subject to be made public and presented to the Parliament.

Despite the report’s balanced nature, it has come under attack by rightsholders from the audio-visual industries. Over the course of the past weeks, the Creativity Works! coalition and others have engaged in a massive campaign against the report, advancing a number of false or overblown claims to undermine it, which can be easily debunked:

Misleading claim 1: Ending Geo-blocking of audio-visual content would harm “15 million creative sector jobs” and “jeopardise a €640 billion industry.”

There is no independent study that proves this statement. Contrary to what part of the copyright industry claims, the IMCO report does not challenge territorial licensing. In fact, it reaffirms the need to preserve it. What IMCO suggests – and we support – is that consumers and citizens should not be denied access to Europe’s rich cultural diversity. Territorial protectionism does not benefit anyone but incumbent industries profiteering from the unjustified partition of the Single Market.

Misleading claim 2: The IMCO report threatens territorial licensing and calls for EU-wide licensing for audiovisual services which would be prohibitively expensive for smaller players and limit cultural diversity in Europe.

This statement is factually incorrect as the IMCO report at no point makes any reference to prohibiting or discouraging territorial licensing. On the contrary, the need to safeguard territorial licensing is mentioned repeatedly throughout the report. Further, there are no demands to instate a system of EU-wide licences. Any predictions for the future of the European audio-visual sector based on these claims are severely misguided and paint a deceiving picture of the IMCO report.

While the campaign by Creativity Works paints a dire picture of the audiovisual sector, should the legislator follow the report, there is little substance to these claims. Denying the people access to culture, by contrast, is not in your, or anyone’s, interest. We encourage you to vote with confidence in favour of the report.

Signed,

COMMUNIA Association for the Public Domain

Creative Commons

Federal Union of European Nationalities (FUEN)

Vrijschrift

Wikimedia Deutschland

Xnet, Institute for Democratic Digitalisation

The post Open letter on geo-blocking: Denying people access to culture benefits no-one appeared first on COMMUNIA Association.

As discussed in greater detail in our Policy Paper #15, COMMUNIA deems it essential that the flexibilities for text-and-data mining enshrined in Articles 3 and 4 of the Copyright in the Digital Single Market Directive are upheld. For this approach to work in practice, we welcome practical initiatives for greater transparency around AI training data to understand whether opt-outs are being respected.

The full statement is provided below:

Statement on Transparency in the AI Act

The undersigned are civil society organizations advocating in the public interest, and representing  knowledge users and creative communities.

We are encouraged that the Spanish Presidency is considering how to tailor its approach to foundation models more carefully, including an emphasis on transparency. We reiterate that copyright is not the only prism through which reporting and transparency requirements should be seen in the AI Act.

General transparency responsibilities for training data

Greater openness and transparency in the development of AI models can serve the public interest and facilitate better sharing by building trust among creators and users. As such, we generally support more transparency around the training data for regulated AI systems, and not only on training data that is protected by copyright.

Copyright balance

We also believe that the existing copyright flexibilities for the use of copyrighted materials as training data must be upheld. The 2019 Directive on Copyright in the Digital Single Market and specifically its provisions on text-and-data mining exceptions for scientific research purposes and for general purposes provide a suitable framework for AI training. They offer legal certainty and strike the right balance between the rights of rightsholders and the freedoms necessary to stimulate scientific research and further creativity and innovation.

Proportionate approach

We support a proportionate, realistic, and practical approach to meeting the transparency obligation, which would put less onerous burdens on smaller players including non-commercial players and SMEs, as well as models developed using FOSS, in order not to stifle innovation in AI development. Too burdensome an obligation on such players may create significant barriers to innovation and drive market concentration, leading the development of AI to only occur within a small number of large, well-resourced commercial operators.

Lack of clarity on copyright transparency obligation

We welcome the proposal to require AI developers to disclose the copyright compliance policies followed during the training of regulated AI systems. We are still concerned with the lack of clarity on the scope and content of the obligation to provide a detailed summary of the training data. AI developers should not be expected to literally list out every item in the training content. We maintain that such level of detail is not practical, nor is it necessary for implementing opt-outs and assessing compliance with the general purpose text-and-data mining exception. We would welcome further clarification by the co-legislators on this obligation. In addition, an independent and accountable entity, such as the foreseen AI Office, should develop processes to implement it.

Signatories

• COMMUNIA
• Creative Commons
• Wikimedia Europe

The post Statement on Transparency in the AI Act appeared first on COMMUNIA Association.

At the 43rd session of the WIPO Standing Committee on Copyright and Related Rights (SCCR), which took place in March, we witnessed a major shift in the EU’s position on international lawmaking in the area of exceptions and limitations to copyright (L&Es). The discussions also brought to light the rationale of the demandeurs of a Broadcast Treaty, deepening the civil society’s concerns about the impact of a new copyright-like right on the public domain and public interest activities.

Exceptions and limitations: a departure from the EU’s stance on text-based negotiations

The last time the most important forum at the global level for copyright rulemaking engaged in text-based negotiations on L&Es was a decade ago, in the lead-up to the adoption in 2013 of the Marrakesh Treaty. After the treaty was adopted, many developed countries claimed that the international instrument for persons with print disabilities was meant to be an exception, and opposed the drafting of any other instrument on copyright exceptions, be it binding or non-binding (such as a joint recommendation or a model law).

This stance was repeated ad nauseam over the years, particularly by the EU. So much so that not even the COVID-19 pandemic, which demonstrated clearly how important it is for schools and cultural heritage institutions to be able to operate remotely and across borders, seemed to remove them from those crystallised positions. 

This status quo remained until the last SCCR, when developed countries finally showed a change of heart. While still opposing the drafting of a legally binding instrument, the EU stated that it was willing to discuss non-binding instruments:

In this context, as consistently expressed in the past, we would like to remind, however, that the EU and its member states cannot support work towards legally binding instruments at the international level or any preparations in this regard. However, we stand ready to continue to engage constructively under this Agenda Item to reflect further on the other possible non-binding instruments and ways how WIPO can best help to provide guidance to WIPO member states to address the problems faced by institutions and people with disabilities including through the introduction of meaningful exceptions and limitations in their respective national laws. (…)

However, as the week proceeded, it became apparent that France wanted to soften the EU statement delivered by the Commission. The only EU country to ask for the floor, France made the following intervention, repeating what had been the EU’s position until that point:

In this regard, France has reservations regarding the fact that the conversation on L&Es could touch upon normative instruments. The continuation of discussions in L&Es should be founded on the exchange of best practices at the national level (…).

Frustrated with these continued attempts to divert the conversation away from concrete language to address the problems and solutions faced by educators, researchers, and cultural heritage institutions, in our statement we threatened not to return to the Committee:

We come here, year after year, to defend the rights of teachers and researchers. We support your discussions. We bring evidence. We talk to you, the person that was here before you and the person that will come after you. It’s a massive effort. Yet, every year, we leave this room empty handed, with no binding instruments, no soft laws, nothing that could make a difference. Do know that we question if we should come back.

We further shared the story of Jonas, a Senior Lecturer in Comparative Literature at the University of Gothenburg, in Sweden, who we interviewed for our publication “Nobody puts research in a cage”. We explained his struggles with accessing the data sources he uses in his research remotely and sharing his research results with colleagues for purposes of verification and validation of his research. And we read his words out loud, hoping they could make a difference in the discussions:

Perhaps they did. At the end of the last day of SCCR/43, the Committee finally agreed to approve the revised African Group proposal for a work program on L&Es, which includes drafting work towards “objectives and principles and options for implementation at national level”. The Chair was tasked with advancing information sharing and consensus building on L&Es between SCCR meetings and given the option to create working groups of member states supported by experts to produce outcomes for consideration by the Committee.

Broadcast Treaty: increasingly difficult to grasp!

The discussions on the protection of broadcasting organisations against unauthorised retransmission and related uses were centred around the Chair’s Second Revised Draft Text for the WIPO Broadcasting Organizations Treaty, which continues to raise substantial issues of concern. 

While there seems to be a common understanding that any potential treaty should be narrowly focused on signal piracy and not extend to post-fixation activities, there are still many important issues to be agreed upon, including fixation rights, a perpetual term of protection, and limitations and exceptions.

The revised draft text contains important changes to the L&Es provision. Yet, none of the exceptions are mandatory, not even those that are already mandatory for copyrighted works (such as quotation, news of the day, and providing access for the visually impaired). Furthermore, unlike the Regional Comprehensive Economic Partnership Agreement and the Trans-Pacific Partnership Agreement, the text does not even mandate the contracting parties to achieve a fair balance between the rights and interests of authors and rightsholders, and those of  users. 

Equally concerning is the idea to give contracting parties the option to protect signals by means of a fixation right. This would grant broadcasters a new lawyer of exclusive rights over the programme-carrying signal on top of the rights they already have on the signal content, effectively extending the scope of protection beyond the mere signal. This is particularly concerning when the signal content is already in the public domain, as it would allow broadcasters to re-appropriate public domain broadcasts. Broadcasters are sitting on huge collections of public domain content and are the only ones that have complete, high-quality copies of those materials. Prohibiting the fixation of signal would mean preventing access to, and re-use of, the public domain material itself. 

When questioned why public domain materials were not being excluded from this new layer of rights, the facilitators made it clear that this was intentional. They claimed that broadcasters needed to be incentivised to promote public domain works to the public. We found this reasoning nonsensical and asked why corporations would need copyright-like incentives to use materials that are free for anyone to use and for which they would not need to pay any copyright licence fees. However, none of the facilitators were able to provide a response.

The next SCCR will take place in Geneva on November 6-8. This time, the Committee will meet for three days instead of five, and attendees will be asked to forego making oral opening statements and general declarations, in order to allow the Committee to focus on substantive discussions. Certainly something to look forward to!

The post Finally, something to look forward to at WIPO appeared first on COMMUNIA Association.

We offer you an opportunity to join our advocacy efforts to advance cutting-edge copyright reform and work with a network of activists, researchers, and other practitioners in Europe and the United States.

This is a remote position, but you must be located in the Brussels area and should be able to attend meetings in Brussels on short notice.

It is possible to work part-time, but you should be available to work at least 24h/week for us.

Primary responsibilities

As a Policy Advisor, your primary responsibility will be to promote COMMUNIA’s policy objectives in the EU context and expand COMMUNIA’s network in the Brussels policy space. In addition, you will work on our public communication efforts.

Policy

• Represent COMMUNIA and promote COMMUNIA’s policy goals at consultations, hearings and events;
• Work with COMMUNIA’s directors and core team members to draft responses to consultations, policy papers and other policy documents;
• Expand COMMUNIA’s network in the Brussels policy space;
• Track relevant developments in copyright and related policy areas of interest to COMMUNIA.

Communication

• Work with COMMUNIA’s directors and core team members to create communication materials, including blog posts, social media content, policy handouts and newsletters;
• Plan, organise and run in-person, hybrid and virtual events, including promotion and follow-up communication with participants and attendees.

Qualifications and skills

• University degree in political science, law, or related field;
• Strong identification with COMMUNIA’s mission and policy objectives;
• Relevant prior experience in the field;
• Basic knowledge of copyright and copyright-related challenges for users in general and in education, research and the cultural heritage sector;
• Excellent interpersonal skills and ability to build/maintain a network in the Brussels policy space (prior experience in a similar position a plus);
• Good writing and communication skills (ability to speak and write concisely in different formats and for different audiences, blogging, social media etc.);
• Good knowledge of the workings of the European institutions and EU policy processes;
• Project management skills (structured and target-oriented approach, good time management, experience with online/offline/hybrid event planning a plus);
• Proficient computer skills (familiarity with the Google suite and Slack or similar frameworks, knowledge of WordPress a plus);
• Excellent level of English (native or fluent). Good command of French is an advantage.

Application process

Please apply by sending your CV and motivation letter to work@communia-association.org. The deadline for applications is January 31st, 2023.

Only applicants with a valid residence and work permit for Belgium will be considered.

If you have any questions, please feel free to contact us at the same email address.

Further information

Salary

We offer a salary starting at €55.000/year for a full-time position commensurate with relevant skills and experience.

Work environment and location

COMMUNIA is an international association incorporated under Belgian law that advocates for policies that expand the Public Domain and increase access to culture and knowledge. We are driven by our public interest mission and we have a proven track record of impact in EU and national legislation.

COMMUNIA is a fully distributed organisation with members in Europe and the US. This position is in a remote working environment, but based in the Brussels area. Availability for occasional travel and high-speed broadband access are required. A laptop is supplied.

We are an equal opportunities employer and we are committed to ensuring equality and promoting diversity. All qualified applicants will receive consideration for employment without regard to race, ethnicity, gender, gender identity or expression, sexual orientation, national origin, disability, age, or any other legally protected characteristic.

Privacy Policy

This Privacy Policy applies to job applicants (or “you”). COMMUNIA will collect and use your personal data during the recruitment process, to manage the process and reach a hiring decision. This includes assessing your skills and qualifications for this particular role, verifying your information and communicating with you.

We collect only personal data that you have provided to us in your application, data from interviews (if applicable), and data provided to us by your referees (if applicable). We may also obtain data relevant to your professional life from publicly available sources for the purpose of confirming the accuracy of the information presented by you. We base this processing on our legitimate interest to build a decision base in order to reach a hiring decision.

If you are accepted for a role at COMMUNIA, your personal data will be included in our staff records. If you are not successful, your personal data will be deleted from our records within three months from the application deadline.

We take care to allow access to your personal data only to those who are involved in the recruitment process. We will not share any personal data with other third parties ​​unless we have a legal obligation to do so.

You have the right to access, correct, update, or request deletion of your personal data from our records. You also have the right to object to, or restrict, processing of your personal data, as well as to data portability, and to report any misuse of your personal data.

If you have any questions or requests relating to this Privacy Policy, please contact us at communia@communia-association.org.

The post We Are Looking for a Policy Advisor appeared first on COMMUNIA Association.

This is Part 2 of a two-part contribution highlighting the report’s most significant findings. While Part 1 (published on Kluwer Copyright Blog) focused on Article 15 CDSMD, Part 2 considers Article 17 CDSMD. The report’s findings as regards Article 17 CDSMD were presented at the first session (“Fragmentation or Harmonisation? The impact of the Judgement on National Implementations”) of the Filtered Futures conference co-organised by COMMUNIA and Gesellschaft für Freiheitsrechte on 19 September 2022. 

The post is published under a Creative Commons Attribution 4.0 International licence (CC BY 4.0).

Subject matter and right-holders

As opposed to Article 15 CDSMD, Article 17 CDSMD does not introduce a new related right to EU copyright law. Instead, it expands the protections already afforded by copyright and related rights law. To this end, Article 17(1) links to Article 3(1) and (2) of the Information Society Directive (ISD). While Article 3(1) ISD covers copyright, Article 3(2) ISD lists four related rights: those of performers, phonogram producers, film producers and broadcasting organisations.

Based on the national reports, from among the 11 examined Member States, only two (Malta and the Netherlands) appear to have restricted protection to these four related rights. Denmark explicitly extends protection to producers of photographic pictures and producers of catalogues – i.e., related rights owners not mentioned in Article 3(2) ISD. Other Member States eschew a closed enumeration in favour of a general reference to related rights – implying that all related rights recognised in their national law are covered. To the extent that such rights fall outside of the EU acquis such gold-plating is arguably unproblematic. However, where harmonised related rights – such as the new PPR – are affected, implementations start slipping out of compliance.

France presents an added twist, given the absence in the French transposition of Article 15 CDSMD of an exception for private or non-commercial uses by individual users, as the Directive requires (see Part 1 on Kluwer Copyright Blog). The logical conclusion is that in France OCSSPs may be liable for non-commercial public sharing of press publications by end-users on their platforms – contrary to Article 15’s intended focus on own use by providers such as news aggregators and media monitoring services (see Recital 54 CDSMD).

Exclusive rights

Further issues arise with regard to the implicated exclusive rights. The Irish implementation of Article 17 is particularly perplexing in this regard: as the Irish national expert (Giuseppe Mazziotti) explains, while the transposition’s language is ambiguous and hard to decipher, the Irish implementation appears to require that OCSSPs also obtain authorisation from the owners not only of the right of communication to the public and of the making available right (as the CDSMD requires), but also of the reproduction right. Adding to the confusion, the immunity of Article 17(4) is transposed correctly, so that it is restricted to acts of communication to the public.

A number of possible interpretations exist. One option would be that absent authorisation from the holders of the reproduction right, OCSSPs are liable for communication to the public unless the immunity applies – though this would make little sense. An equally disconcerting possibility would be that there is no way out of a liability for unauthorised acts of reproduction that has no foundation in the Directive. Of course, it is also possible that the reference to the reproduction right is just a transposition glitch that should be ignored, in line with the Marleasing principle. This interpretation would be the most likely – were it not for the fact that it is very hard to say that OCSSPs (whose very definition in Article 2(6) CDSMD describes them as “storing” content) perform acts of communication to the public without also (at least temporarily) copying the relevant works: the absence of any reference to the reproduction right in Article 17 makes little sense. The omission has been belatedly recognised by the European Commission in its Guidance on Article 17, according to which the

acts of communication to the public and making content available in Article 17(1) should be understood as also covering reproductions necessary to carry out these acts.

The Guidance notes that Member States should not provide for an obligation on OCSSPs to obtain an authorisation for reproductions carried out in the context of Article 17. However, the Guidance is non-binding and, moreover – from a certain perspective – just confirms that acts of reproduction are inherent to acts of communication or making available to the public.

Authorized uploads by end-users

Interestingly, France has ignored the suggestion in Recital 69 of the Directive that authorisations granted to users to upload protected subject matter extend to OCSSPs. As Valerie-Laure Benabou, the French national expert, points out, the key issue here is whether OCSSPs are participating in a single act of communication to the public or making available to the public performed by the end-user or whether there are two independent acts, one performed by the user and the other by the intermediary.

Given that the Directive establishes primary and not accessory liability for OCSSPs, there is a strong argument that there are two acts of communication to the public. Of course, this seems counter-factual, as clearly only one material act occurs – the upload by the user onto the OCSSP’s platform. But that is a problem embedded in the entire solution adopted by Article 17, which holds OCSSPs liable for those uploads as primary infringers. Moreover, while recitals do have interpretative value, they do not have binding legal force and therefore cannot be used to counteract the operative part of a directive. As a result, clarity on this issue can only come with CJEU intervention.

Interaction with other types of liability

Another headscratcher is provided by the Spanish implementation. This contains a provision according to which, as has already been reported on Kluwer Copyright Blog by the Spanish national expert, Miquel Peguera, even when OCSSPs abide by the conditions of Article 17(4), right holders will be still able to rely on other causes of action for compensation, such as unjust enrichment.

How to assess this is not obvious. One view is that the provision digs a hole under the entire concept of immunity. The result, therefore, is an interference with the “occupied field” of the Directive in a way that erodes its useful purpose: the same claimant would be granted the same protection against the same OCSSP for the same behaviour for which the directive provides immunity.

As persuasive as this interpretation is, there is also a different perspective from which the provision is unproblematic. It is important to consider the difference between Article 17 and the hosting safe harbour Article 6 of the Digital Services Act (DSA) (previously Article 14 of the E-Commerce Directive): the wording of the latter clearly indicates its purpose to ensure that the relevant providers are, in a harmonised way, not held liable across the EU under certain conditions. By contrast, Article 17 arguably has the opposite objective: to ensure that OCSSPs are, in a harmonised way, held liable across the EU under certain conditions. If that is the case, then it could be said that the Spanish provision avoids interference with Article 17’s useful purpose.

Of course, even if that is so, it is highly unlikely that any OCSSP that meets the conditions of Article 17(4) would fail to meet the conditions set by any other national rule of law. The hosting safe harbour will provide additional refuge. While the issue is therefore likely a storm in a teacup, the theoretical question is an interesting one: does Article 17 exhaust the liability of OCSSPs for infringing copyright/related rights over uploaded content – does it provide total harmonisation of OCSSP liability for copyright-infringing content uploaded by their users or only total harmonisation of OCSSP liability for communication to the public?

Filtering and general monitoring obligations

Perhaps the most interesting question that arose from the study concerns the different national approaches to the implementation of Article 17(4) CDSMD. The issue was brought before the CJEU by Poland in an action for the annulment alleging that Article 17(4) makes it necessary for OCSSPs to adopt filtering technology to the detriment of end-users’ freedom of expression. In its decision, the CJEU accepted that the prior review obligations imposed by Article 17(4) on OCSSPs do require the use of filtering tools, but concluded that the resultant limitation on freedom of expression is acceptable because of the safeguards embedded in sub-paragraphs 7, 8 and 9. The Court refrained, however, from a detailed explanation on how these safeguards should operate in practice.

Among the examined Member States, Germany and Austria have taken a proactive elaborative interpretation geared at establishing how these safeguards can be put into practice. This approach has been described as a “balanced” one, as opposed to the more “traditional” one taken by those countries that adopted a copy-out transposition.

The question that arises is whether this “balanced” approach is compatible with the directive. As others have suggested, there is a strong argument that – to the extent that Article 17 does not explain how its various sub-paragraphs are intended to interact or how it’s intended to navigate freedom of expression – such elaboration might be necessary. As mentioned in Part 1, to be copiable in national law, it is necessary that a directive be internally consistent and well formulated. When provisions are in need of legislative repair or clarification, literal transposition should be dismissed. It can be said that Article 17 is precisely such a provision – as the analysis above reveals, it is not a well-drafted piece of legislation: it raises many questions, its wording is complex and confusing, and its purpose and scope are ambiguous.

That said, following the decision of the CJEU in Poland it is hard to hold that those Member States that have taken a copy-out approach to transposition were wrong to do so. Instead, the answer can be found in the final paragraph of Poland. This emphasises both that Member States themselves must transpose Article 17 in such a way as to allow a fair balance and that, “the authorities and courts of the Member States” must interpret their transpositions so as to respect fundamental rights. In this way, the Court has enabled the compatibility with the Directive and the Charter of both the “balanced” and “traditional” implementation approaches: with the first the legislator takes on the task of identifying the appropriate “fair balance” itself, via the process of transposition. With the second, the details on the right balance are delegated to judicial interpretation. The first approach may be preferable from a policy perspective – but both are open to the Member States.

Conclusion

Examination of the national implementations of Articles 15 and 17 reveals a number of potential incompatibilities. While some of these can perhaps be attributed to national intransigence or misplaced inspiration despite clear EU requirements (for example, the French failure to protect private or non-commercial uses of press publications by individual users is hard to explain otherwise), very often the root cause can be found in bad drafting by the EU legislator. The contentious subject matter and intricate structures of these articles, as well as their heavy reliance on undefined terminology and the occasional misalignment between the recitals and operative texts, are not designed to facilitate smooth national implementation and homogenous interpretation and application. As the European Commission has acknowledged, “[b]etter law-making helps better application and implementation”. In the intense discussions on Articles 15 and 17 in the run-up to the adoption of the CDSMD, this principle appears to have fallen by the wayside. To address the consequences, the CJEU will no doubt have much CDSMD-focused work ahead of it. Hopefully, future judgments will be clearer than Poland. 

The post Comparative Report on the National Implementations of Article 17 of the Directive on Copyright in the Digital Single Market appeared first on COMMUNIA Association.

The changes brought by the CDSMD to the copyright paradigm cannot be underestimated. In addition to changing the liability regime for online content-sharing service providers (see Jütte), the  obligation to introduce ex ante and ex post content moderation has the potential to turn copyright into a censorship tool if not adequately balanced against the right to freedom of expression. In the long run, the implementation of article 17 CDSMD bears crucial consequences for cultural diversity, creativity and the ability to participate in political and societal discourse online.

A strong commitment to respecting the right to freedom of expression

Whilst a strong commitment to freedom of expression is commended, the balance to be struck between the right to property of copyright holders and the right to freedom of expression remains uncertain, as the EU legislator and the CJEU in C-401/19 leave this matter for EU member states to resolve. The potential serious interference with the right to freedom of expression and freedom of the arts (guaranteed by articles 11 and 13 of the EU Charter of Fundamental Rights respectively) created by inadequate controls on content moderation is undeniable, as acknowledged by the AG (at 77 and 151). The AG also confirmed that this interference is ‘attributable’ to the EU legislature and should not be left in the hands of service providers (AGO, at 83-84). On the compatibility of this limitation with the right of freedom of expression, the AG went back to the basics by first reminding that freedom of expression does not constitute an absolute right but amounts to a qualified right, meaning that limitations to the exercise of this fundamental freedom are possible as long as they meet the three-pronged test of: (1) being ‘provided by law’; (2)  respecting the ‘essence’ of that freedom (see O’Sullivan) and, (3) respecting the principle of proportionality (in accordance with art. 52(1) of the Charter which echoes the traditional test of art. 10(2) ECHR, as confirmed by the AG at 90).

This post wishes to focus on the third step of this assessment. To determine whether the limitation on freedom of expression is proportionate, the AG first recalled that over-blocking represents an inherent risk, and that current content moderation can only look for ‘matches’ rather than identify copyright infringement (see Jacques, Garstka, Hviid and Street). As such, this obligation must be accompanied by sufficient safeguards without which art. 17 would not constitute a proportional limitation on freedom of expression. Arguably, such safeguards are provided by paras 5, 7, 8 and 9 of art. 17 (AGO at 155). Here, through a combination of the addressees of art. 17, the mandatory character of some copyright exceptions such as parody, and the requirement of a complaint mechanism to protect users’ rights, the AG finds that proportionality has the potential to be met if adequately implemented in practice to achieve the goals of the provision (at 204 and 220). Although the CJEU did not embark on a sufficiently detailed analysis to determine whether content moderation constitutes an appropriate and necessary limit on freedom of expression to meet the objectives sought, the Court mostly agreed with the AG’s opinion whilst acknowledging that, in practice, the balance of fundamental rights and, consequently, the proportionality requirement, hinges heavily on national implementation (at 99).

Understanding the margin of appreciation granted to national authorities

Given that we are in the midst of national implementation (still) of this controversial provision, understanding what kind of margin of appreciation lies in the hands of national legislators is essential.

Firstly, it is quite noteworthy that the CJEU has not demonstrated that these filters could effectively meet the objectives set by art. 17. If filters are intended, even if not explicitly mentioned in the adopted text, arguably the EU legislator or CJEU should have investigated whether the technology is up to the task.

Secondly, if it is demonstrated that content moderation can meet the objectives of art 17 to –  let’s say – 95% accuracy, some categories of expressions might be more disproportionately hit than others, which has a detrimental impact on the diversity of expressions present on these platforms. This is likely to be the case for parodic expressions (understood here as including caricatures and pastiches) given that this type of expression can be adversely affected by content moderation. This is because such uses imply copying by their nature and are precarious particularly when carrying offensive messages. In addition, parody cases decided by EU member states under art 5.3(k) InfoSoc Directive are rather inconsistent in their application of the copyright exception as to the type of uses covered (questions as to how much copying or what type of humour is allowed remain the subject of many domestic discussions). Such inconsistencies can even be found within a single member state between different courts, making it extremely difficult for OCSSPs to assess the scope of the exception or for users to justify their use and save their expressions from over-blocking.

One of the possible consequences of leaving too wide of a margin of appreciation to member states is that the safeguards intended by art. 17 result in placing too much burden on users to demonstrate the legitimacy of their use, as is seen in some member states where the broadening of the interpretation of the parody exception has led courts to require defendants to demonstrate in what manner the copying of copyright-protected content was necessary (see e.g., Malka v. Klasen saga in France). This must be avoided as it also goes against the mechanics of art. 10 ECHR, as incorporated into EU law by arts 11 and 52(3) of the Charter.

It has already been argued that the way in which the ECtHR has approached the use of humour and balanced the right to freedom of expression with the right to property, as well as other fundamental rights such as the right to protect one’s reputation, can help in colouring the application of requirements of the parody exception to achieve harmonisation and the necessary predictability (Jacques). But beyond the application of the parody exception, the ECHR framework and its jurisprudence influence the margin of appreciation left to member states in their implementation of art. 17 to ensure that the new obligations contained therein remain proportional.

When faced with conflicting fundamental rights, the CJEU reminds us that a fair balance must be struck between the fundamental rights at stake. Looking at how the balance should be struck between the users’ right to freedom of expression and the property rights of right-holders, the ECtHR’s jurisprudence becomes helpful. Whilst, in the last decades, the jurisprudence has over-emphasized the margin of appreciation granted to member states, more recent decisions operate a shift in trying to recalibrate the balance so that any restriction to freedom of expression is more predictable and the subjectivity of national judges less influential. The ECtHR has had the opportunity to establish that the member states’ margin of appreciation is wider when it comes to purely commercial expressions than it is for political or artistic expressions (see Sekmadienis Ltd. v. Lithuania, para 73; markt intern Verlag GmbH and Klaus Beermann v Germany, para 33).  Furthermore, the ECtHR has begun to be stricter with Member States in emphasising that the intent and context of an expression are appropriately taken into consideration (See Patrício Monteiro Telo de Abreu v. Portugal, paras 37, 42 and 43). As held by the ECtHR, in a case regarding political caricatures, when balancing freedom of expression with the right to protect one’s reputation, the member state should not excessively focus on the right to protect one’s reputation at the expense of the exercise of freedom of expression. In an even more recent case dealing with criticism of the Bible made by a Polish popstar on the radio (Rabczewska v Poland, paras 58-59), the ECtHR noted that one must consider the normal audience of the speaker to determine whether a restriction is justified.

A shift towards a framed margin of appreciation and a right of being heard online

This shift towards a framed margin of appreciation is of relevance when considering how art. 17 CDSM Directive will operate in practice to ensure that proportionality is met and that a vibrant digital public sphere remains possible. Indeed, an overview of national cases where courts have had to strike a fair balance between the right to freedom of expression and the right to property has often tilted the balance towards the right to property with relative ease. This may be due to the legal tradition of specific member states, but a sustainable digital environment calls for greater scrutiny of this balancing exercise. It may also be due to the over-emphasis on the ability to express oneself freely in the digital environment, discarding that a strong commitment to freedom of expression also implies a right to be heard. A user should have a realistic expectation of being able to be heard in the digital realm. And yet, provisions such as art. 17 CDSMD have the potential to further curtail the ability of being heard online. Putting greater emphasis on the right to be heard could lead to ensuring that the balance between fundamental rights in the context of art. 17 is appropriately struck by giving more weight to users and focusing the burden of proof on right-holders. Where an expression has been caught through over-blocking, a greater commitment to the right to be heard could give ammunition to private actors to authorise the use until a decision is reached through an out-of-court mechanism or judicial decision. In essence, this focus on the right to be heard online would facilitate the satisfaction of the proportionality requirement and bring parties on par.

Finally, but nontrivially, the pledge for a strong right to freedom of expression in the digital environment has led the EU legislator to make the parody exception mandatory, meaning that member states do not have a choice but to introduce a parody exception for the scope of art. 17. However, some member states might not have elected to implement a parody exception under the InfoSoc Directive. This could ultimately lead to a situation where platforms that do not fall within the scope of art. 17 end up deploying such content moderation without adequate safeguards for users’ rights and leaving the users in a defenceless position unable to rely on the parody exception in that member state. Hence, national legislators have been called upon by scholars to take the opportunity of implementing the CDSM directive to introduce a broader parody exception given its roots in the right to freedom of expression and the ECtHR jurisprudence which consistently reminds us that the means of communication should not matter. It is important to remember that currently =fragmentation is still possible even amongst platforms where a lawful parody is shared if the platform is not falling within the scope of art. 17 CDSM Directive and where no conventional parody exception exist under the national copyright legal framework.

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On the 16th of April, the Court of Justice (CJEU) delivered its decision in case C-401/19  The Republic of Poland v European Parliament and the European Council concerning Article 17 of the Copyright in the Digital Single Market Directive (the CDSM). The Polish challenge centred on the argument that Article 17(4)(b) and (c) require ex ante preventative monitoring of all user uploads by content sharing service providers and is incompatible with Article 11 of the European Charter of Fundamental Rights. As such, the CDSM is silent on the need for ex ante preventative monitoring. Rather, Article 17(4)(b) and (c) require such providers employ their ‘best efforts’ in accordance with ‘high industry standards of professional diligence’ to ensure the unavailability of protected works. Prior to the Polish challenge, the conclusion reached by commentators on Article 17 – in particular the academic community – was that these requirements pointed in one direction only – the adoption of ex ante filtering technology.  Naturally, this conclusion did not manifest in a vacuum. Indeed, it is well known that the concern of European policymakers to remedy the so-called ‘value gap’ underpinned Article 17 and a desire that content sharing service providers follow the likes of YouTube in deploying filtering solutions such as its ContentID system. Indeed, the final non-prescriptive wording of Article 17 reflects a compromise over concern that expressly mandating for filtering technology was a step too far in burdening content sharing service providers and their users alike.

The Polish Challenge: Throwing Down the Gauntlet to the Court of Justice

Against the backdrop of this implicit European policy embrace of algorithmic enforcement of copyright, the Polish challenge can be viewed as a throwing down of the gauntlet before the CJEU to make this implicit policy express, or annul Article 17 in part or in full. The choice facing the Court was to fill the policy gap leading to the compromise wording of Article 17 and justify upload filters under a fundamental rights framework or identify alternative preventative measures that would comply with the ‘best efforts’ criterion of Article 17(4)(b) and (c). In this respect, the challenge rested on the widely held assumption that upload filters would be incompatible, in particular, with the norms of freedom of expression – not least, because current filtering technology is incapable of making a sufficient distinction between legal and illegal uses of content relative to the exceptions and limitations under the copyright acquis. In light of this, the Polish challenge asserted that Article 17 was absent sufficient safeguards to protect internet user rights of freedom of expression. Recognising that Article 17 does mandate the use of upload filters, the CJEU rejected the Polish challenge, confirming the compatibility of Article 17 with Article 11 of the European Charter of Fundamental Rights and laying considerable emphasis on the safeguards that exist within Article 17.

These safeguards are intended to operate both ex ante and ex post. Under Article 17(7), prior to deploying a filtering solution, cooperation between content sharing providers and right holders, i.e. the provision of information from the latter to the former, shall not result in the blocking of legal content. Article 17(4)(b) directs that right holders provide relevant and necessary information, which according to the Court protects freedom of expression, as content sharing providers will not, in the absence of such information, make such content unavailable. Moreover, the Court reiterated that a system that cannot sufficiently distinguish between lawful and unlawful content, in particular content that would require a value judgement as to its illegality, would not be compatible with Article 11 of the Charter. In short, the Court narrowed the scope of Article 17 as applying only to manifestly infringing content. Article 17(9) establishes the first ex post safeguard, in the event that content is ‘erroneously or unjustifiably’ blocked, by requiring content sharing providers to put in place effective and expeditious complaint and redress mechanisms. Moreover, the Member States are to ensure there is access to out-of-court redress mechanisms and recourse to the courts. The Court was therefore satisfied that Article 17 did – contrary to the Polish claim to the opposite – contain sufficient safeguards to ensure compatibility with Article 11 of the Charter. (Many) questions however remain, not least, the question as to the ‘essence’ of freedom of expression in this context.

The Fact of Safeguards Tells Us Nothing About the ‘Essence’ of Freedom of Expression

Adopting a classic proportionality formula, the Court’s position is supported by its jurisprudence and Article 52(1) of the Charter. To this end, Article 52(1) allows for fundamental rights to be limited if justified and subject to minimum safeguards, while Promusicae  makes clear internet users’ fundamental rights can be limited under a balancing exercise to support copyright enforcement. In turn, the Court had little difficulty in establishing that the ‘essence’ of freedom of expression in the context of Article 17 was respected, in particular, by the minimum safeguards under Article 17(7)-(9). In doing so, it drew on rulings of the European Court of Human Rights that prior restraints on freedom of expression are permissible, subject to a particularly tight legal framework. However, the fact of safeguards tells us nothing about their substance, particularly their actual or likely efficacy in practice relative to protecting internet users’ right to freedom of expression. Following the ruling, the normative position for the Member States is to now answer the question of how these safeguards are to work to ensure internet users’ fundamental rights are respected. Therein lies the problem. In framing the essence of the right as unaffected by prior restraints and insulated by minimum safeguards, the Court fails to illuminate the degree to which such restraints may impact the right or indeed to what degree the minimum safeguards will need to be calibrated to protect freedom of expression.

The objection of course is that this should not be the function of the Court but rather the Member States. Indeed, the same argument could be made concerning the Court’s filling of the policy gap by reading upload filters into Article 17 generally. In short, we are where we are because of the Court’s ruling – and we now face a dilemma. Article 17 envisages that legitimate content should not be blocked. The Court reminds us that a system that cannot sufficiently distinguish legal from illegal content will not comply with Article 11 of the Charter. Yet, the remaining safeguards within the provision deal with this precise scenario, giving rise to questions that put into sharp focus the lack of guidance from the Court as to what the substantive essence of freedom of expression is, in this context. To this end, even with the Court attempting to limit the overall scope of such filtering, mistakes will happen. What then of redress?

What if Time is of the ‘Essence’ of Freedom of Expression under the CDSM?

Let us assume the content was legal but erroneously blocked – how long is too long for the block to be disproportionate in a scenario where there are apparent safeguards so that this should not have occurred at all? Does it matter? After all, a safeguard is not a guarantee per se and in this context if it were, imbalance would surely occur in suggesting blocks could never occur. But this is precisely the point – if under classic proportionality balancing a block can occur, the redress mechanism must still be effective and, as Article 17(9) provides, without undue delay and subject to human review. The irony is that the latter, unable to achieve the former on sufficient grounds under Article 14 of the eCommerce Directive, is one of the main arguments in favour of upload filters. What then is a proportionate delay where the most appropriate redress is removal of the block? The answer may well prove elusive with the task being to apply objective standards to expressions that are by their nature inherently subjective and relative to the context in which they are made.

Indeed, coming within an exception or limitation only tells us the category of the expression – it says nothing as to the value of that expression to the user relative to any myriad of factors, from the imprint of user personality to the temporal resonance with society and culture at the point of upload. When it comes to freedom of expression in this context, time and not the existence of safeguards may well be the starting point for discerning the ‘essence’ of the right. Indeed, as we move towards greater filtered futures, we need a surer understanding of the ‘essence’ of freedom of expression in this context beyond the existence of safeguards. For the implementation of Article 17 in light of the Court’s ruling, ex ante mechanisms that allow prior user input to challenge any potential block appear a necessary minimal mitigation measure to protect internet user rights. But even this delays the inevitable question where a block is imposed on what turns out to be legal content – to what degree is time of the essence?

If the normative position following the Court’s ruling is that Article 17 is to be implemented, the assumption is that some delay is inevitable in resolving an end user’s complaint. If we accept the essence of freedom of expression is contingent on the existence of safeguards that include redress then this is unproblematic. However, in balancing copyright and freedom of expression in this context, the most proportionate (and appropriate) redress is the expeditious removal of the block, relative to the factors described above. If an objective standard remains elusive in this context precisely because of those factors, can we find balance? The perspective of classic fundamental rights balancing would still suggest an answer in the affirmative; after all, an end-user can still avail of out of court settlement procedures and the courts. However, if it is accepted that in this context the ‘essence’ of the right comes down to individualistic, nuanced and relative factors, such avenues appear wholly inadequate where time is of the essence. Following the Court’s ruling, the question of time may be derided as an abstract consideration that sits in contrast to the normative position of implementation. However, on the contrary, it is precisely because of the Court’s ruling that difficult questions remain surrounding the balance between freedom of expression and copyright in this context. In protecting end-users, a useful starting point would be to identify what the real ‘essence’ of freedom of expression is, in this context. If, as the foregoing suggests, time is of the essence, this invites the question – is balance in practice, on these terms, possible under Article 17?

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COMMUNIA and Gesellschaft für Freiheitsrechte co-hosted the Filtered Futures conference on 19 September 2022 to discuss fundamental rights constraints of upload filters after the CJEU ruling on Article 17 of the Directive on Copyright in the Digital Single Market (CDSMD). This blog post is based on the author’s contribution to the conference’s first session “Fragmentation or Harmonisation? The impact of the Judgement on National Implementations.” It is published under a Creative Commons Attribution 4.0 International licence (CC BY 4.0).

On 26 April 2022, the CJEU dismissed the annulment action initiated by the Republic of Poland against Art. 17 CDSM Directive 2019/790 on copyright and related rights in the Digital Single Market (CDSMD): According to the Grand Chamber of the CJEU, the provision imposes a de facto obligation on service providers to use automatic content recognition tools in order to prevent copyright infringements by users of the platform. While this obligation leads to a limitation of the freedom of expression of users, appropriate and sufficient safeguards accompany the obligation, ensuring respect for the right to freedom of expression and information of users and a fair balance between that right and the right to intellectual property. However, guidelines of the CJEU as to how such safeguards have to be implemented in detail remain vague (C-401/19).

User safeguards in the German implementation

The Member States of the European Union follow different approaches when it comes to the implementation of Art. 17 CDSMD. The result is a legal fragmentation of platform regulations and uncertainty for service providers, rightholders and users alike as to the prerequisites under which OCSSPs have to operate. When the German Act on the Copyright Liability of Online Content Sharing Service Providers (OCSSP Act) entered into force imposing several detailed obligations on the service providers, many considered this new law as a model for the remaining implementations of other Member States. With its unique system, in which ex ante duties to block unlawful content are inseparably intertwined with ex ante duties to avoid the unavailability of lawful user content, the German OCSSP Act contains provisions which could pass as sufficient safeguard mechanisms in the meaning of the decision of the CJEU. In response to the debate on EU level and in other Member States, the OCSSP Act introduces a new category of “uses presumably authorised by law” – i.e., any statutory limitation to copyright –, which, as a rule, must not be blocked ex ante.

“Uses presumably authorised by law”, as laid down in sec. 9 of the OCSSP Act, can either be minor uses, which do not exceed the thresholds of sec. 10 OCSSP Act, or – if that is not the case – uses which the user flagged as legally authorised as per sec. 11 OCSSP Act. Both minor uses and flagged UGC must contain less than half of one or several other works (with an exception for images) and must combine this third-party content with other content. If these requirements are met cumulatively, the service provider must communicate the respective UGC to the public up until the conclusion of a complaints procedure. Thus, the category of “uses presumably authorised by law” enables the user to upload the content without interference by an automated copyright moderation tool. Rightholders, on the other side, are equipped not only with the possibility to initiate an internal complaints procedure but also with a “red button” which leads to the immediate blocking of content if it impairs the economic exploitation of premium content by the rightholder.

In sum, the German OCSSP Act provides a well-balanced legal framework. However, the quality of a statute is not only measured by its text and the concepts applied but also by the practical impact on the behaviour of its addressees. The question arises whether the OCSSP Act is able to deliver on its promises or if it turns out to be a toothless tiger in practice.

Effects of the German OCSSP Act

Against this background, Alexander Peukert and I have analysed whether the enactment of the German OCSSP Act in August 2021 had an immediate impact on platforms’ policies. The results of the study are compiled in a paper published in January 2022, which was the foundation for the presentation at the Filtered Futures conference on 19 September 2022 in Berlin. For the purpose of answering the question of what factual effect the OCSSP Act has actually had on the platform policies, the study examines the terms and conditions of several service providers both before and after the enactment of the OCSSP Act on 1 August 2021. We reviewed and analysed the German-language websites of eight services as to whether their terms and conditions and other publicly accessible copyright policies changed upon the entry into force of the German OCSSP Act. The data was collected at four points in time between July and November 2021. At all four points, we analysed the source-data as to whether the service provider implemented six selected mandatory duties, including the possibility for rightholders to submit reference files, the flagging option, the red button solution and a complaint system in accordance with the requirements of the OCSSP Act. With a total of 514 saved documents, including terms and conditions, general community and copyright guidelines, complaint forms, FAQs and other relevant copyright help pages, the paper allowed us to identify the practical effect of the German OCSSP Act over time on individual services, and across the eight services covered.

The results of the data collection are twofold. One the one hand, the changes which could be observed in the terms and conditions of the platforms over time are minor. On the other hand, there were differences between the service providers with regard to their compliance level with the statutory duties of the OCSSP Act already before its enactment (see table below).

Most changes we witnessed concerned the duty of the OCSSPs to guarantee a “notice and prevent” procedure. The flagging option, by contrast, was not clearly laid out in the terms and conditions of any service provider, at best vaguely indicated by YouTube and Facebook. The obligation of the service providers to inform their users about all statutory limitations under German copyright law in their terms and conditions was not fully met by the services, as they primarily referred to exceptions and limitations under “fair use” or EU law, but never to the exceptions and limitations under German copyright law.

Conclusions and outlook

In the conclusions of the paper, we raise the question of why larger platforms such as YouTube, Facebook and Instagram display a higher compliance with the OCSSP Act than comparatively small content sharing platforms. Furthermore, we note that it has become apparent that different Member State implementations and generally uncertain legal circumstances on the EU level impair the willingness of OCSSPs to take measures. It remains to be seen whether the decision of the CJEU will have any noticeable impact on the platform-side implementation. Lastly, the study brings to light the consequences of the lack of sanctions for failure to implement the user rights, in particular the regime regarding “uses presumably authorised by law”, i.e., minor or pre-flagged uses, in the German OCSSP Act.

In its essence, the study can serve as a starting point for further research. While the findings of the study reflect the changes of platform policies and primarily offer a text-based evaluation, they may provide incentives to investigate the upload process and other functionalities of the service providers further. More in-depth research on the legal and practical aspects of the new era of platform regulation is necessary to close the gap in legal doctrinal research on the implementation of Art. 17 CDSMD on platform level. The recently published decision of the CJEU and its emphasis on sufficient user safeguards adds fuel to this fire.

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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.

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