The defendants are the world-renowned German toy making companies Ravensburger AG, Ravensburger Verlag GMBH and their Italian office represented by Ravensburger S.r.l.. They were brought to court for using the image of the widely popular ​​Public Domain drawing to produce and sell puzzles without authorization or payment of a fee to the Gallerie dell’Accademia di Venezia, where the physical artwork is kept.

A puzzling question

Let’s pause here. Authorization, fee, Public Domain work… These don’t add up. The Public Domain is made up of works that are out of copyright, free to use by anyone for any purpose. The Public Domain is the treasure trove of creative works that inspires us all and upon which all creativity depends. In fact, protecting the Public Domain is so important that in 2019 the European legislator made it explicit in Article 14 of the European Directive on Copyright in the Digital Single Market (CDSM) that non-original reproductions of works in the Public Domain must stay in the Public Domain — no copyright protection arises from the simple act of reproduction of public domain works, e.g. through digitisation.

So, how come the Gallerie could prevent Ravensburger from using an image of the Public Domain Vitruvian Man on its puzzles? How come the court:

• prohibited the defendants from using for commercial purposes the image of the work “Vitruvian Man” by Leonardo da Vinci and its name, in any form and any product and/or instrument, including digital ones, on their websites and on all other websites and social networks under their control;
• ordered the defendants to pay a penalty of € 1.500 to the Gallerie dell’Accademia di Venezia for each day of delay in the execution of the precautionary order;
• ordered the publication of the order in extracts and/or summaries of its contents by the Gallerie dell’Accademia and at the expense of the defendants in two national daily newspapers and in two local daily newspapers?

The answer: The Italian Cultural Heritage Code

The answer lies with a particular piece of Italian law: the Italian Cultural Heritage Code (Legislative Decree n. 42/2014). According to the Italian Cultural Heritage Code and relevant case law, faithful digital reproductions of works of cultural heritage — including works in the Public Domain — can only be used for commercial purposes against authorization and payment of a fee. Importantly though, the decision to require authorization and claim payment is left to the discretion of each cultural institution (see articles 107 and 108). In practice, this means that cultural institutions have the option to allow users to reproduce and reuse faithful digital reproductions of Public Domain works for free, including for commercial uses. This flexibility is fundamental for institutions to support open access to cultural heritage.

Incompatible with Article 14 CDSM

Be that as it may, the Cultural Heritage Code’s “authorization+fee” system generally deals a severe blow to the Public Domain in Italy, and alarmingly, beyond its national borders — Creative Commons calls attention to this in its Global Open Culture Call to Action to Policymakers. It is in fact completely at odds with EU legislation protecting the Public Domain: Article 32, quater of the Italian Copyright law (Law n. 633 of April 22nd, 1941) clearly conflicts with the intent of the European legislator. That is because Article 32, quater transposes Article 14 CDSM but limits its effect to the application of the Italian Cultural Heritage Code. We at Communia have strong reasons to believe this is incompatible with the letter and the spirit of Article 14.

Even in cases where European legislation does not in itself have direct effects or applicability in the national legal system of the Member States, it must always represent an indispensable guiding parameter for national courts, which are called upon to interpret national law in the light of European legislation (i.e., the obligation to interpret it in conformity). Further, there is a general prohibition for Member States to allow a national rule to prevail over a contrary EU rule, without making a distinction between earlier and later national law.

Not the only case

The Vitruvian Man is sadly not an isolated case. Just a few months ago, we commented on the one opposing the Uffizi Museum to Jean Paul Gaultier, where the defendant, a French fashion designer, used images of another Renaissance masterpiece, Botticelli’s Birth of Venus. These cases are bound to leave wreckage in their wake: great uncertainty around the use of cultural heritage across the entire single market, hampered creativity, stifled European entrepreneurship, reduced economic opportunities, and a diminished, impoverished Public Domain. To address these issues, we hope the European Court of Justice will soon have the opportunity to clarify that the Public Domain must not be restricted, a fortiori by rules outside of copyright and related rights, which compromise the European legislator’s clear intent to uphold the Public Domain.

Quite curiously, even though the precautionary order should be executed with specific regard to the Vetruvian Man’s puzzle, it is interesting to see that on the defendant’s website one can still  buy puzzles reproducing “La Gioconda” (the Mona Lisa) and “The Last Supper” by Leondardo da Vinci; “The Kiss” by Hayez and another “The Kiss” by Klimt and many other monuments, works of art, as well as images of nature and animals.

Liberalise it

Is legal action the right way to deal with this issue? Court proceedings are expensive and will not change reality. A different approach (compatible with an open access policy and the protection of the Public Domain) that liberalises the faithful reproduction of cultural heritage in the Public Domain would be more supportive of tourism, the creative industry and “the benefit of civil society in general. Other than being compatible with the principle stated by Art. 14 of the CDSM Directive.

The post The Vitruvian Man: A Puzzling Case for the Public Domain 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. 

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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.

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We launched a new website, dedicated to reviewing the implementation of these policy recommendations. 10 years on, it is possible to see that half of our recommendations have been implemented – fully or partially -, and the other half remains unfulfilled. Most importantly, almost all of the recommendations are still relevant.

Where victory can be claimed: freeing digital reproductions of public domain works and giving access to orphan works

One of COMMUNIA’s main objectives since its foundation has been to promote and protect the digital public domain. Therefore, when the EU Parliament decided to follow our Recommendation #5 and proposed the introduction of a provision in the new Copyright Directive, preventing Member States from protecting non original reproductions of works of visual arts in the public domain with copyright or related rights, we were exhilarated. Article 14 not only reconfirms the principle that no one should be able to claim exclusive control over works that are in the public domain; it’s also the first EU piece of legislation to expressly refer to the concept of “public domain”.

Getting the “public domain” to enter the EU acquis lexicon was a major victory for user rights, but for sure more measures are needed to effectively protect the Public Domain. Our Recommendation #6, which called for sanctioning false or misleading attempts to misappropriate or claim exclusive rights over public domain material, has not been implemented and is more relevant than ever, particularly on online content sharing platforms. Here, a false ownership claim can easily lead to the false blocking of public domain material, as a result of the use of automated content recognition systems combined with the lack of public databases of ownership rights (that’s why the German legislator has recently adopted measures against this type of abuse, setting a new standard for the protection of the Public Domain).

Another victory coming out from the recent EU copyright reform relates to the creation of an efficient pan European system that grants users full access to orphan works (Recommendation #9). The first attempt of the EU legislator to address this issue, through the Orphan Works Directive, is widely considered a failure, since the Directive only works for a small number of cinematographic works. However, the provisions on the use of out of commerce works in the DSM Directive provide a comprehensive solution for the problem of orphan works (by definition orphan works are also out of commerce and so these provisions also apply to them) (cf. Articles 8-11).

Where major advances have been made: mandatory exceptions to copyright and open access to publicly funded resources

Recommendations #3, #9, #10, #12 all asked for the creation and harmonization of exceptions and limitations to copyright, and we have seen major advances on this topic in recent years. Cultural heritage institutions now benefit from a set of mandatory exceptions regarding uses of orphan works and of out-of-commerce works, and for preservation purposes. There is a new exception for the benefit of persons who are blind, visually impaired or otherwise print-disabled, and the Commission has recently concluded a consultation on the availability of works for persons with other disabilities, which might lead to further developments in this field. The fields of education and research were also considered in the recent EU copyright reform, with the approval of new exceptions for text and data mining, and for digital and cross-border teaching activities. New mandatory exceptions for quotation, criticism, review, caricature, parody or pastiche on certain online content-sharing platforms are also part of the Article 17 package. Finally, the CJEU has recently indicated that the exceptions and limitations of the Copyright Directive that are aimed to observe fundamental freedoms might be mandatory for Member States (cf. the judgments of 29 July 2019 Funke Medien, C-469/17, para. 58; Pelham, C-476/17, para. 60; and Spiegel Online, C‐516/17, para. 43), which means that there is a possibility of further harmonization of exceptions in the coming years through judicial development.

Certainly, more progress is needed in the area of exceptions and limitations, particularly after the massive shift of education, research and cultural activities to the online environment, following the pandemic closure of institutions. Not only do we need a higher level of harmonization among Member States, but also flexibility to adapt this legal framework to rapid societal and technological changes. Therefore, our recommendation #3 to harmonize exceptions and open up the exhaustive list of user prerogatives is still highly relevant.

In the past decade, we have also seen great advancements on the issue of open access to public funded resources. Recommendations #11, #12 and #13 asked for publicly funded digitized content, research output, educational resources and public sector information to be made publicly available free from restrictions. Over the past years the idea that publicly funded resources need to be available to the public has gained traction not only among policy makers but also within the vast majority of cultural heritage and research institutions. Initiatives from public research funders have led to the increasing adoption of open access policies within the academic research sector. In 2013 the scope of application of the PSI Directive was extended to libraries, museums and archives. Also, Member States are required to ensure that documents on which those institutions hold intellectual property rights shall be re-usable for commercial or non-commercial purposes  under the Open Data Directive. This means that this set of recommendations has been partially implemented; the principle that public money should result in public access has not, however, yet been universally accepted.

Where nothing has changed: terms of protection, registration, technical protection measures, and alternative reward systems 

The excessive length of copyright protection combined with an absence of formalities is highly detrimental to the accessibility of our shared knowledge and culture. Therefore, a decade ago, we recommended reducing the terms of copyright protection (Recommendation #1). Unfortunately the trends in the past decade have gone in the opposite direction. The proposed term extension for performers and sound recordings, which we had recommended not to be adopted (Recommendation #2), was approved by Directive 2011/77/EU. Furthermore, the rules for establishing the duration of the term of protection of individual works remain fragmented and highly complex, contrary to our Recommendation #4.

On the issue of formalities, while our Recommendation #8 to grant full copyright protection only to works that have been registered by their authors has not been implemented, it has become increasingly clear that, for the copyright system to continue to function, registration of works will become ever more important. Over the past year the EU legislator has been making a number of baby steps towards systems to reserve or claim rights. These have been mostly as a condition to expand exceptions and limitations further, with rightholders being given the right to opt out from certain permitted uses of their works if they express such intention by specific means: this is the case of some text and data mining activities, where rightholders have the right to prevent those activities provided that they expressly do so “in an appropriate manner” (cf. Article 4(4) of the DSM Directive), and it is also the case in the context of the use of out-of-commerce works by cultural heritage institutions (cf. Article 8(3) of the DSM Directive), where rightholders are allowed to opt-out through the EUIPO Out of Commerce Works Portal. Yet, the new Commission’s Intellectual Property Action Plan reveals the intention to look deeper into how “to promote the quality of copyright data and achieve a well-functioning “copyright infrastructure” (e.g. improve authoritative and updated information on right holders, terms and conditions and licensing opportunities)”.

Another area where there were barely any changes to the EU policy is the area of technological overrides of exceptions and limitations. The only improvement we have seen in the new Copyright Directive is that the beneficiaries of the new exceptions have the right to require the technical means necessary to use TPM-protected works even when the work was acquired under contract and made available across the internet (something that was not the case under the InfoSoc legislation). However, the vast majority of EU Member States do not have mechanisms in place to grant users access to TPM-protected works. This means that technical protection measures can still significantly inhibit the use of works under exceptions and limitations. In other words, it is about time for the EU lawmaker to recognize this problem and implement our Recommendation #7, allowing users to circumvent TPMs when exercising rights under exceptions or when using public domain works.

Finally, our last Recommendation (#14), advising lawmakers to switch the focus of their policies from extension of copyright protection and enforcement of rights to alternative rewards systems and cultural flat rate models has also not been implemented.  Since we have issued this recommendation we have seen massive changes in the way cultural expression and exchange are taking place online, with the emergence of subscription services for creative content and new creator cultures that rely on advertising driven platforms. Copyright plays an important role in these business models but any real solution to ensure a fairer distribution of the economic benefits of these models likely requires intervention way beyond copyright alone.

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The event was kicked off by Marco Giorello (Head of Copyright Unit, European Commission), who started by recalling that the main objective of Article 17 is to foster the conclusion of licensing agreements between rightholders and online platforms, and not to provide an enforcement tool to rightholders against illegal content. He then summarized the Commission’s views on the practical application of Article 17(7), clarifying that this provision requires online platforms to consider legitimate uses ex-ante and that it is not enough for Member States to give flesh to user rights by simply relying on ex-post redress and complaint mechanisms. He further acknowledged the struggles in finding a solution to implement Article 17 in a balanced way, pointing out that this is probably the first time that the EU lawmakers are trying to find a way to respect fundamental rights in a machine-to-machine environment.

In the following presentation, former MEP Felix Reda took us through the history of the discussions of Article 17 in the Parliament, highlighting that, although the Parliament had not put much thought into how Article 17(7) would be implemented in practice, definitely the intention of those who voted in favour of the Directive was to have ex-ante protections. He reminded the participants that a former version of the text, according to which the obligation to protect legal content was satisfied as long as there was a complaint and redress mechanism in place, was rejected by the Parliament. He stressed that it was this combination of Article 17(4) and (7) that was able to get an approval from the Parliament, and that there was no doubt that there was an expectation from MEPs that legitimate uses would not be blocked at upload.

Viveca Still (Senior Copyright Advisor, Ministry of Culture, Finland) presented the current government proposal to implement Article 17 in Finland. She pointed out that the Finish model, as it currently stands, mainly relies on ex-post corrective measures for wrongful blocking (such as compensation for the harm caused in case of unjustified blocking) to have an ex-ante (deterring) effect. Nevertheless, the proposal does foresee a solution to give some consideration to user rights at upload: it requires rightholders to assess whether the use of their content is covered by a copyright exception or limitation or whether the use is allowed under contract, before they can issue a blocking request.

In the final presentation, Tobias Holzmüller (General Counsel, GEMA), emphasized that licenses are the best way to protect user rights and that he expects that the issue of blocking will become less relevant in the next few years, as more licenses start emerging in the market. He also drew attention to the fact that the issue of potential overblocking only affects certain types of content (press publications and audiovisual content), where the business model of the producers of that content conflicts with the wide availability of such content on online platforms. He then presented the latest proposal that is being discussed in Germany, which importantly tries to be specific about what best efforts mean in an environment dominated by freedom of expression on one side and proprietary rights on the other. He explained that the proposal contains ex-ante protections for content that respects certain criteria, while exempting both the platforms and the users from liability until a human review takes place. He further stated that, according to the rumors, the government is also trying to find a mechanism to give owners of time-critical content (such as sports and news content) some type of control to bring their content down immediately, when they have proven not to abuse this mechanism in the past.

We would like to thank everyone who participated in our event and we are looking forward to organising another edition of the COMMUNIA salon in the near future.

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

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

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

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

A Particular balance

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

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

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

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

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

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

A clear win for large platforms?

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

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

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

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

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

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

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Fast implementation of the new exception to permit remote teaching during COVID-19

Just as in several other EU Member States, in Hungary as well the stakeholder consultations regarding the implementation of the DSM Directive are still ongoing. Yet, the provisions set out in Article 5, namely those concerning the use of works in digital and cross-border teaching activities, have already been implemented and the relevant amendments to the Hungarian Copyright Act (No. LXXVI of 1999) came into effect on 18th July 2020. The reason? Urgent need for modern copyright rules enabling schools to swiftly transition into distance education during the COVID-19 pandemic and distribute learning material digitally.

What was the copyright framework for education in Hungary?

Before the DSM directive has been adopted, the Copyright Act already regulated the exception for education as a ‘free use’ in its Section 34:

(2) Part of a published literary or musical work or of a film, or small entire works of such nature as well as pictures of works of fine art, architecture, applied art and industrial design creations, and photographic works may be borrowed for the purposes of illustration for school education and scientific research, while indicating the source and the author named in such work, to the extent justified by the purpose and on the condition that the recipient work is not used for commercial purposes. Borrowing shall mean the use of a work in another work to an extent exceeding quotation.
(3) The non-commercial reproduction and distribution of the recipient work mentioned in paragraph (2) shall not require the author’s authorization if the recipient work, pursuant to the relevant laws, is published as a textbook or reference book and the school educational purpose is indicated on its front page.
(4) The work may be adapted for the purposes of school education in the course of educational activity. The authorization of the author of the original work shall also be necessary for the use of the work thus adapted.

The condition of non-commercial use has been adopted following the implementation of the InfoSoc directive. Paragraph 2 regulates ‘borrowing’ for a defined catalogue of works. Importantly, unless it is a ‘small work’, only a certain part of the published work can be borrowed. Importantly, as opposed to paragraph 1, which regulates quotation, paragraph 2 allows for free use of even pictures of works of fine art, architecture, applied art and industrial design creations, and photographic works. Furthermore, borrowing for educational purposes is limited to use in another work (to an extent exceeding quotation). Paragraph 3 allows for the ‘reproduction’ and ‘distribution’ of the recipient works included to the above referenced catalogue, provided that the recipient work is published as a textbook or reference book and the school’s educational purpose is indicated on its front page.

Definitions of educational purpose has been provided in Section 33 (4):

(…) the use shall be regarded to serve the purposes of school education if it is implemented in accordance with the curriculum and educational requirements in kindergarten, primary school, secondary school, vocational training and technical school education, in institutions of primary education of arts, as well as in higher education falling under the scope of the Act on higher education.

Lastly, Section 35(5) on private copying also included relevant, education-related rules: “Parts of a work published as a book, as well as newspaper and periodical articles may be reproduced for the purposes of school education in a number corresponding to the number of students in a respective class, or for the purposes of exams in public and higher education in a number necessary for that purpose.”

The main takeaways are that the previous system did not include a licensing scheme as seen in other European jurisdictions, especially in Scandinavia. Furthermore, it was applicable for only certain types of works, which had to be published, and the relevant exceptions meant a free use, without financial compensation to the author. These rules were complemented by those on quoting in Section 34 (1).

What changes were introduced to the existing education exceptions?

These fundamental features of the Hungarian Copyright Act are not affected by the implementation of the DSM directive. For easier review, all amendments are briefly listed below:

1. The definition of educational purpose has not been changed, although following the final implementation of the remaining articles in the DSM directive, it may be renumbered.
2. Section 33/A is adopted in line with the DSM directive, codifying the definition of ‘secure electronic environments’ in a technology neutral manner. In accordance with this definition, Section 34 (4) is amended to clarify that the listed works may be adopted for the purposes of school education in the course of educational activity, even via secure electronic environments. Importantly, authorization of the author is still required for use under Section 34 (4).
3. The wording of Section 34 (3) is replaced with the following wording: “The authorization of the author is not required for the recipient work under paragraph (2) (a) for reproduction and distribution, if the recipient work, pursuant to the relevant laws, is published as a textbook or reference book and the school educational purpose is indicated on its front page, or b) for school education [33. § (4)] for use in digital form at the place education, on an electronic device, or for transmission to the public via a secure electronic environment, provided that such uses are not made on a commercial basis.” The novum here is of course Section 34 (3) (b), where ‘use in digital form at the place of education’ and ‘transmission to the public via secure electronic environment’ are added as cases of free use under the already existing framework for exceptions related to education. This means use without authorization of, and financial compensation to, the author.
4. Section 34 (3a) provides that use within the meaning Section 34 (3) (b), shall be deemed to occur solely in the Member State where the educational establishment is established. This amendment again, does not divert from the wording of the DSM directive.
5. Section 35 (5) is amended by allowing for distribution of parts of a work published as a book, as well as newspaper and periodical articles to the pupils and students concerned, as well as for making those works available to them on request through the secure electronic network of the educational institution.

All in all, it seems the Hungarian legislature has succeeded with a DSM directive conform implementation of Article 5, that fits in with the previous Hungarian system of educational exceptions, provides additional, digital ways in which the free use of borrowing for education purposes can be exercised, without creating additional barriers for places of education.

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The letter expresses concerns that the proposed Article 17 guidance endorses the use of automated content blocking by online services even though it is clear that this will lead to the violation of fundamental rights. It also warns that implementations of Article 17 based on the proposed guidance will violate established principles of EU law.

In this context the letter highlights the need for meaningful safeguards for legitimate uses of content uploaded to online platforms, and stresses the need for a robust redress mechanism for users. Summarising the consultation responses submitted by the various signatories, the letter highlights the importance of ensuring that uploads that are not manifestly infringing must remain online until a human review has taken place. The letter further stresses the importance of involving users’ organisations when setting technical parameters that are used to determine if an upload is manifestly infringing or not. 

The letter further highlights the need for full transparency of (automated) content removals and the ability for users (and user organisations on their behalf) to take actions against the abuse of the measures introduced by Article 17 of the DSM directive.

Finally, the letter also expresses support for the Commission’s clarification that Article 17 constitutes a “lex specialis” to the provisions of the InfoSoc Directive which provides Member States with maximum flexibility to include user rights preserving authorisation mechanisms in their national legislation.

You can read the full letter including the list of signatories here.

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As we said in our initial analysis, we were very happy to note a clear commitment of the Commission to maintain the delicate legislative balance of Article 17 that reflected many of the constructive contributions that have been made by stakeholders across the spectrum during the dialogues. In general, we consider the Commission’s proposal a step in the right direction and this is reflected in our response to the consultation. Unsurprisingly, organisations representing rightholders have a completely different reaction to the proposal and have already started a campaign to convince the Commission into abandoning its approach.

Steps in the right direction

While we think that there is substantial room for improvement (as we have outlined in our responses to the individual questions), we are supportive of the key elements of the proposed guidance. From our perspective, these are:

• The clarification that Article 17 constitutes a “lex specialis” to the provisions of the InfoSoc Directive and that Member States should include the notion of ‘authorisation’ for the lex specialis ‘act of communication to the public’ in Article 17(1). This approach provides Member States with maximum flexibility to adapt their national legislation to the specificities of their national legal systems.
• The recognition that the guidance should recall that the objective of Article 17 is authorization. Given this objective, the guidance should explicitly endorse forms of authorization other than licenses, including remunerated exceptions.
• The clarification that the “uses under exceptions and limitations” that must not be affected by Article 17 not only cover the exceptions explicitly mentioned in Article 17(7) but also all other exceptions that Member States may have implemented under Article 5 of the InfoSoc directive. We also welcome the suggestion made by the Commission that member states should consider implementing additional exceptions (namely the incidental use exception), to ensure an as high as possible level of harmonisation of user rights.
• The clarification that Member States must not mandate the use of technology or impose any specific technological solutions on service providers to comply with their obligations under Article 17.
• The explicit recognition that the complaint and redress mechanism established by Article 17(9) is not a sufficient safeguard for user rights and that both 17(7) and 17(9) must be implemented into national laws to ensure that legitimate uses of content will be protected from deletion at the time of upload.
• The inclusion of a mechanism for the practical application of Article 17(4) in compliance with Article 17(7) that includes the requirement that uploads that are not “likely infringing” must remain online while the uploads are under review.

A crucial omission

This last element of the proposed guidelines is where it becomes problematic. From our perspective, it is unacceptable that the criteria for determining if the “likely infringing” standard is met should be agreed between rightholders and service providers, without representation of users, whose fundamental rights are at stake.

Defining the technical parameters must be a part of the dialogue and the Commission should propose initial parameters based on the input of all stakeholders. Furthermore it must be possible for users to act against platforms that repeatedly remove or block legitimate content, including the ability to challenge parameters that result in structural over-blocking.

Room for improvement

In addition, our response identifies a number of other issues where the proposed guidance needs to be improved:

• The mechanism for the practical application of Article 17(4) in compliance with Article 17(7) appears to focus on the development of criteria to try to identify legal uses of protected content under exceptions and limitations to copyright, but fails to propose safeguards to prevent the removal of legal uses of content for which the uploader has a license or which is in the public domain. This issue should be addressed through a combination of pre-flagging and public databases of public domain and openly licensed content.
• The guidance foresees that rightholders would need to file a takedown request pursuant to Article 17(4)c to challenge the outcome of the human review. The parties should not be able to challenge that decision by initiating another in-platform procedure. Instead, either party must be able to refer the outcome to the out-of-court dispute resolution mechanism or to the courts.
• We welcome the proposal that the guidance should include transparency requirements. However transparency requirements should apply more broadly to technical parameters, outcomes of complaints procedures as well as ownership claims. Robust transparency requirements will be essential for understanding the impact of Article 17 on users rights and on the policy objectives it is supposed to serve.
• Finally our response notes that the guidance should include more emphasis on the measures against abuse of the mechanisms introduced by Article 17 by bad-faith actors or parties that are structurally negligent. Without such measures, implementations of Article 17 will open the door for structural abuses of user rights.

It is now up to the Commission to analyse the feedback it has received and draw up the final version of the guidelines. It is clear that it is facing criticism from multiple fronts (in addition to the complaints from rightholders we have also seen critical responses from digital rights organisations such as EDRi and the EFF). It will be interesting to see in how far the Commission will be able to defend its overall approach (that would provide meaningful safeguards for user rights) against the mounting political pressure applied by the rightholder lobby.

As we have observed before, many of the same rightholders who are now crying foul-play are the very same organisations that have been trying to undermine the stakeholder dialogue from the start. After almost a year of largely constructive discussions in the stakeholder dialogue it would be devastating to the credibility of the Commission if rightholders would succeed with their destructive strategy.

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While we have been rather sceptical after the end of the six meetings of the stakeholder dialogue meetings, we are pleased to see that the initial views shared by the Commission express a genuine attempt to find a balance between the protection of user rights and the interests of creators and other rightholders, which reflects the complex balance of the provisions introduced by Article 17 after a long legislative fight.

In the remainder of this post we will take a first, high level, look at the Commission’s proposal for the Article 17 guidance, what it would mean for national implementations and how it would affect user rights.

Two welcome clarifications

With the consultation document the Commission takes a clear position on two issues that were central to the discussions in the stakeholder dialogue and that have important implications for national implementation of Article 17.

The first one concerns the nature of the right at the core of Article 17. Is Article 17 a mere clarification of the existing right of communication to the public, as rightholders have argued, or is it a special or sui generis right, as academics and civil society groups have argued? In the consultation document the Commission makes it clear that it considers Article 17 to be a special right (“lex specialis”) to the right of communication to the public, as defined in Article 3 of the 2001 InfoSoc Directive, and the limited liability regime for hosting providers of the E-commerce Directive. 

What sounds like a fairly technical discussion has wide ranging consequences for Member States implementing the Directive. As explained by João Quintais and Martin Husovec, now that it is clear that Article 17 is not a mere clarification of existing law, Member States have considerably more freedom in deciding how online platforms can obtain authorisation for making available the works uploaded by their users. This should mean that they are not constrained by the InfoSoc Directive. Therefore, mechanisms like the remunerated “de-minimis” exception proposed by the German Ministry of Justice that would legalise the use of short snippets of existing works are permitted and covered by the concept of “authorisation” introduced by Article 17.

The second clarification contained in the consultation document deals with the very core of the discussion in the stakeholder dialogue. During the stakeholder dialogue, many rightholders had argued that the user rights safeguards contained in Article 17(7) (that measures to prevent the availability of copyrighted works “shall not result in the prevention of the availability of works or other subject matter uploaded by users, which do not infringe copyright”) should not have any direct consequences as the complaint and redress mechanism introduced in Article 17(9) would provide sufficient protection of user rights. In other words, right holders have argued that, even though no-one disputes that upload filters cannot recognise user rights and would structurally block legitimate uploads, this would be fine because users have the right to complain after the fact. In the consultation document the Commission does not mince words and makes it clear that this interpretation is wrong:

The objective should be to ensure that legitimate content is not blocked when technologies are applied by online content-sharing service providers […]

Therefore the guidance would take as a premise that it is not enough for the transposition and application of Article 17 (7) to only restore legitimate content ex post, once it has been blocked. When service providers apply automated content recognition technologies under Article 17(4) [..] legitimate uses should also be considered at the upload of content.

This clarification reaffirms the core of the balance struck by Article 17: Upload filters can only be used as long as their use does not lead to the removal of legitimate content. In their contributions to the stakeholder dialogue many rightholders have sought to negate this principle and the Commission should be complimented for defending the balance achieved through the legislative process. This is even more important since this means that the Commission is also taking a clear stance against the incomplete implementation proposals currently being discussed in the French and Dutch parliaments that, in line with the position brought forward by rightholders, ignore the user rights safeguards contained in Article 17(7).

A mechanism for protecting users’ rights

Now that the Commission has made it clear that any measures introduced to comply with Article 17(4) must also comply with the safeguards established in 17(7), how does it envisage this to work?

In section IV of the consultation document the Commission is outlining a mechanism “for the practical application of Article 17(4) in compliance with Article 17(7)”. This mechanism is structurally similar to a proposal made last October by a large group of leading copyright scholars and to the mechanism we had proposed during the final meeting of the stakeholder dialogue in February of last year. At the core of the mechanism proposed by the Commission is a distinction between “likely infringing” and “likely legitimate” uploads:

… automated blocking of content identified by the rightholders should be limited to likely infringing uploads, whereas content, which is likely to be legitimate, should not be subjected to automated blocking and should be available.

The mechanism outlined by the Commission would allow that “likely infringing content” could be automatically blocked (with the ability of users to challenge the blocking afterwards). In case of uploads including works that rightholders have requested to be blocked and for which platforms are unable “to determine on a reasonable basis whether [the] upload is likely to be infringing”, platforms would have to notify the uploaders and give them the possibility to assert their rights and overrule the automated filters. In this case the upload stays online until the disputed upload has been reviewed by the platform. If after requesting information from the rightholders and after human review the platform comes to the conclusion that the upload is likely infringing, then it would still be removed. If, on the other hand, the platform comes to the conclusion that it is likely to be legitimate, then it will stay up (both rightholders and users keep the ability to further contest the outcome of the review by the platforms).

This mechanism correctly acknowledges that “content recognition technology cannot assess whether the uploaded content is infringing or covered by a legitimate use” and gives users the ability to override some decisions made by upload filters. In doing so the Commission’s proposal hinges on the differentiation between “likely infringing” and likely “legitimate” uses. Unfortunately, the consultation document fails to further specify under what conditions uploads should be considered to be “likely infringing” (both our proposal and the academic statement proposed that automatic blocking would only be acceptable in cases where infringement is “obvious”). The consultation documents provide the following three illustrative examples:

the upload of a video of 30 minutes, where 29 minutes are an exact match to a reference file provided by a rightholder, could likely be considered an infringing one, unless it is in the public domain or the use has been authorised. On the other hand, a user generated video composed by very short extracts, such as one or two minutes of different scenes from third party films, accompanied by additional content such as comments added by the user for the purpose of reviewing these scenes could be more likely to be legitimate because potentially covered by an exception such as the quotation exception.Similarly still images uploaded by users which match only partially the fingerprints of a professional picture could be legitimate uploads under the parody exception, as they could be ‘memes’, i.e. new images created by users by adding elements to an original picture to create a humoristic or parodic effect.

Although these examples are well chosen, three examples are far from enough to guarantee that the mechanism outlined by the Commission will provide sufficient protection from over-blocking.

This is made even worse by the fact that the Commission goes on to suggest that “the distinction between likely infringing and likely legitimate uploads could be carried out by service providers in cooperation with rightholders based on a number of technical characteristics of the upload, as appropriate”. From our perspective it is clear that unless user representatives also have a role in determining the technical parameters, the whole mechanism will likely be meaningless.

But in principle the approach outlined in the Commission’s consultation seems suitable to address the inherent tension between the inevitable use of automated content recognition technology to comply with the obligations created by Article 17(4) and the obligation to ensure that legitimate uses are not affected. It is a clear signal to Member States that in implementing Article 17 they need to protect user rights by legislative design and not as a mere after-thought.

And a few shortcomings

Apart from the lack of definition of “likely infringing” the consultation document contains a number of additional weak spots that we will address as part of our response to the consultation. While the mechanism outlined in the consultation document can safeguard uses that are legitimate as the result of falling within the scope of exceptions and limitations, it includes no safeguards to address other structural failures of automated content recognition systems. This includes the wrongful blocking of works that are openly licensed or in the public domain. Preventing the blocking of such works can best be prevented by giving users the ability to mark (or in the terms of the German proposal “pre-flag”) them as being legitimate from the start.

Another aspect where the Commission’s proposed guidance needs to be strengthened are sanctions for false copyright claims by rightholders. Merely stating that “Member States should be free to define sanctions” seems insufficient to prevent Article 17 from structurally being abused by parties making wrongful claims of ownership.

Similarly, while it is welcome that the consultation document highlights the benefits of transparency for users, it does not go further than considering the possibility “to encourage Member States to put in place an exchange of information on authorisations between rightholders, users and service providers” and to “recommend that Member States encourage online content- sharing service providers to publicly report on the functioning of their practices with regard to Article 17(4).”

The consultation remains open for reactions (in principle limited to organisations participating in the stakeholder dialogue) until the 12th of September. Together with other user and digital rights organisations we will continue to stress the importance of including substantial protections for user rights in the Commission’s guidance. The first views presented by the Commission as part of the consultation are an important step into this direction. They clearly show that the Commission intends to use its ability to issue guidance as a means to uphold the legislative balance of Article 17. In light of this, Member States (especially those who in their desire to implement quickly have abandoned this balance) would be well advised to wait for the final version of the Commission’s guidance before adopting their implementations.

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