This development is particularly worrying regarding modern technological devices such as smartphones, tablets, laptops, etc. Due to the complexity of these devices, a single broken or outdated component may render the whole device unusable. As these products are often extremely resource intensive in their production, the possibility to repair a faulty component could go a long way to reduce waste and improve sustainability.

EU to the rescue?

The good news: The EU is aware of the issue and has proposed a solution. In March, the European Commission proposed a Directive on common rules promoting the repair of goods. The proposed legislation aims to establish common rules to promote the repair of goods, and increase the level of consumer and environmental protection by making it easier for professional repairers to assess information and goods that are necessary to repair a product, such as technical documentation and spare parts.

The bad news: While the proposal makes a number of important steps, it fully disregards one of the key obstructions to repairs especially in modern products, namely copyright restrictions.

What could possibly go wrong?

Take the example of John Deere. Several years ago, the company which manufactures a wide range of machinery including tractors as well as household devices such as lawnmowers sparked a public debate following their decision to prohibit the repair of their tractors by third-parties on the basis of copyright restrictions. The company argued that despite the fact that a farmer may own the tractor, the underlying software which oftentimes has to be modified as part of a repair, is copyrighted by John Deere. As a result, farmers as well as professional third-party repairers were prohibited from fixing the machines and instead all repairs had to be conducted by shops specially authorised by the company, leading to delays and opening the door to predatory pricing.

Importantly, this argument is not exclusive to John Deere. In fact, many car manufacturers (including BMW, Ford, Mercedes Benz, Volkswagen and many more) argue that modifying the software in a purchased car violates copyright provisions.

The problem is also not limited to the US as proven by Apple when, in the late 2010s, the company fought a 3-year legal battle all the way up to the Norwegian Supreme Court to stop an independent repair shop from conducting screen replacements on iPhones on the grounds of trademark violations.

Where do we go from here?

In order to stop these practices and empower consumers, the EU legislator in the new Directive must make it clear that copyright and related rights shall not prevent the repair of goods.

Furthermore, in order to narrow the knowledge gap and reduce the risk of consumers becoming the victim of abusive pricing, consumers should also be granted access to repair information, such as manuals and spare-part catalogues.

The post Towards a meaningful right to repair 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.

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

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

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

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

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

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

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

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

The EU Commission has been working to change that since 2019 and wants to make products placed on the market in the EU more sustainable. With the so-called “Sustainable Product Initiative”, it seeks to revise the Ecodesign Directive and, if necessary, propose additional measures. To this end, the Commission has now presented an initial draft regulation, which was open for public comment.

The initiative is intended to affect all products placed on the market in the EU as well as their individual components. The aim is to make them more durable, easier to reuse, more repairable, more recyclable and more energy-efficient. To this end, the Commission wants to standardize performance and information requirements and develop a EU-wide product passport.

This would aim to promote sustainable products and circular processes in all member states, “creating a larger and more efficient market and thus stronger incentives for industry to develop these products”.

Incentives instead of clear design specifications

This means that in the future, anyone who wants to buy an electric toothbrush, for instance, should be able to see at a glance whether the battery is replaceable or how the device compares with particularly durable toothbrushes. The underlying assumption is that if consumers then buy sustainable products more often, the overall longevity of products will improve.

The draft is limited to general performance specifications such as minimum or maximum values for product parameters and information requirements for such parameters. These are general statements intended to provide information about product performance, such as indicators of “ease of repair and maintenance.” These would be “characteristics, availability and delivery time of spare parts, modularity, compatibility with commonly available spare parts” and others. There are no plans to make it mandatory for products to be modular and compatible. That should be regulated by the market, as the Commission seems to think.

Comparability of products in terms of sustainability is overdue, but it is not enough. Whether products are designed to be repairable, whether relevant information is available for their repair, and how spare parts are actually provided should not depend on how high the demand for them is and how manufacturers react to it.

For example, whether products are accompanied by repair instructions says nothing about their quality and reparability. In addition to general information on products, there is a need for design criteria and specifications on how manufacturers must provide repair-relevant information. But these are lacking from the draft.

Open design and open hardware support sustainability

The draft regulation mentions that sustainable products should be reusable, upgradable, repairable and recyclable. All of this becomes much more low-threshold – and thus more likely – when a design is open. This is shown, for example, by Jérémy Bonvoisin in his publication “Limits of Ecodesign: The Case for Open Source Product Development“.

Here, the product developer analyzes 18 examples ranging from musical instruments to clothing to tractors and elaborates on how open source and sustainable product development are interrelated. The German Ministry of Research, in its report “Resource-Efficient Circular Economy”, also emphasizes that open design as well as open source are important conditions for the circular economy.

Open product development is therefore important for sustainable production. Products made of universally available parts and materials with an easy-to-follow, modular design are usually easier to creatively reuse, adapt, repair and recycle.

The idea behind open design and open hardware is to make products and their production more accessible. This is achieved, for example, through simple and easily understandable design, the use of generally known and accessible materials and components, and the use of production techniques and processes that are open to many. It is also important to have available documentation that makes it easier for manufacturers and consumers to work with a product.

Open source hardware also attaches importance to the fact that the openly designed products and their documentation are not protected by property rights such as patents or design rights. Everyone may and should be able to work with it – even commercially.

The sacred cow: intellectual property

These are the aspects that a forward-looking EU initiative should consider. It should specify concrete criteria for the open, modular design of products, as well as for opening up technology, for example by requiring CAD drawings of wear parts or circuit diagrams to be made available for troubleshooting.

But these specifications are missing, and that may not be a coincidence. Both widespread perceptions of what business models should look like and communications by the Commission, such as the report on the “New Industrial Strategy for Europe” published in 2020, stand in the way of a more open approach. This “Intellectual Property Action Plan” provides for “improving the fight against intellectual property theft.” So instead of making products more open, the EU is developing mechanisms to do the opposite.

The result is a picture of a policy that acts in the interests of an established economy instead of introducing innovative measures for sustainable products and production.

“Do you have a patent?” This is often one of the first questions a startup is asked after a pitch. Instead of the mantra “No property rights, no business”, we need an intelligent, open discussion and design of property rights. And the development of new business models based on them. There are concrete examples of this, such as the MNT Reform laptop developed in Berlin. This laptop is designed so that users can repair it themselves. Every part of the device can be replaced. To this end, the company publishes all the construction instructions and the complete design files, so that, for example, individual spare parts can also be reprinted in a 3-D printer. “After all, it’s not just about the material I sell. After all, it includes a brand, an ecosystem and services,” the founder says of the business model.

But the Commission has failed to map out such paths. Falling back on monopoly rights by default stands in the way of a transformation of our product worlds toward sustainability. A product passport, as provided for in the draft regulation, is not sufficient to initiate this change.

This article has been first published in German on netzpolitik.org (CC BY-NC-SA 4.0).

The post Sustainable products: We need to talk about intellectual property appeared first on COMMUNIA Association.

The event was kicked-off by COMMUNIA president Paul Keller, who in his opening remarks (reproduced in full at the end of this post) argued for the need to put discussion about copyright policy back on the agenda of the EU legislator: three years after the adoption of the DSM directive, it is clear that the EU copyright framework remains a fragmented mess that does not adequately address the needs of users and creators in an increasingly complex digital environment. Paul Keller stressed that COMMUNIA hopes that the new set of policy recommendations will contribute to an open and respectful debate with policy makers and stakeholders from across the copyright policy spectrum about how we can work towards a more just and open EU copyright system that embraces the opportunities offered by digital transformation for users and creators alike.

In a first reaction, MEP Tiemo Wölken (S&D) welcomed COMMUNIA’s ambition and highlighted the importance of improving the EU copyright framework in the context of ambitions to strengthen the digital public sphere in Europe. See here for a recording of his intervention.

His intervention was followed by the presentation of the new policy recommendations by Paul Keller and Teresa Nobre. In her remarks, Teresa highlighted the evolution of the recommendations to more explicitly address the concerns of both users and creators (instead of users’ rights, the new recommendations focus on usage rights) and the increasing importance of (procedural) safeguards against copyright abuse. Paul and Teresa then walked the audience through the 20 individual recommendations:

The presentation of the recommendations was followed by a reaction from Prof. Séverine Dusollier, who echoed the overall need to reform the EU copyright framework and welcomed the level of ambition contained in the new recommendations. See here for a recording of her reaction.

Opening remarks by Paul Keller

So why are we assembled here today and why are we launching a set of 20 policy recommendations for improving the EU copyright framework? Isn’t copyright policy a discussion that was wrapped up during the last Commission’s mandate? With the adoption of the DSM directive that followed almost three years of debate of almost unrivalled intensity?

We would argue otherwise. Yes, in the end the EU legislator managed to adopt a compromise. And yes, even the most controversial provisions of the DSM directive have been upheld by the Court of Justice. But that does not mean that the EU copyright framework is perfect or that it is fit for purpose. Looking back from a distance, the DSM directive has made the EU copyright landscape even more messy than before.

So far only 14 of the 27 EU member states have fully implemented the directive. And after last month’s decision by the CJEU it is very questionable if most of these implementations meet the Court’s requirements for fundamental rights compliance.

And while the DSM directive has harmonised (to some degree) some important aspects of the EU copyright framework — the protection of the public domain status of reproductions of public domain works, the new mandatory exceptions for education, text and data mining, and preservation of works held by cultural heritage institutions come to mind, the rules for access to out of commerce works and the rules strengthening the contractual position of authors and creator come to mind, important parts of the EU copyright framework are still very much fragmented.

While the implementation of the DSM directive would have been an opportunity for the Member States to update other parts of their copyright systems as well, national lawmakers have largely shied away from this opportunity. Only in very few cases have national legislators decided to reform national legislation in order to better align it with the objective of increasing access to knowledge and culture or to further harmonise rules across member states.

Exceptions and limitations that protect fundamental rights exist in some member states but not in others. Procedural safeguards to enforce usage rights are missing in action in most member states and the copyright framework still constrains too many activities that it should enable — for example e-lending.

—

This all takes place against a background of a substantial strengthening of usage rights, both through recent CJEU case law but also through the language of the final article 17 compromise that helped the DSM directive across the finish line. As we have discovered over the last three years, Article 17 does contain in itself a number of elements that substantially strengthen the rights of platform users.

After the amount of opposition against Article 17 from us and many others this feels somewhat counter-intuitive, but who would have thought that what was proposed by the Commission in 2016 as an attempt to curtail the liability privileges of large online platforms would become a vehicle for enshrining the concept of exceptions and limitations to copyright as users rights into the EU framework and at the same time harmonise the so far optional exceptions covering citation, caricature, pastiche and parody through the back door?

But as last month’s CJEU ruling also makes it clear, these conceptual changes will only become meaningful if the legislators implement accessible procedural safeguards for all types of platform users, be they consumers or creators.

—

So with all of this in mind we think that it is high time to put copyright policy back on the agenda. The work is far from done and with important work on the big digital projects of this legislative period almost completed we think that it is time to start thinking about the future evolution of the EU copyright framework and the role of Europe in global discussions about copyright, so that the challenges and opportunities can be reflected in the agenda of the next European Commission.

By presenting our recommendations today we want to open the debate and give it direction. These recommendations will guide our work over the next decade and if our previous set of recommendations — which guided our work over the past 10 years is any indication — then we should see at least some of them becoming legislative reality by the end of Europe’s digital decade.

By launching the recommendations here today we hope to open a dialogue with policy makers and stakeholders from across the copyright policy spectrum and we hope that these policy recommendations can contribute to an open and respectful debate about how we can work towards a more just and open EU copyright system that embraces the opportunities offered by the digital transformation for users and creators alike.

We are really looking forward to working with all of you on making these recommendations happen over the next couple of years!

The post Twenty copyright policy recommendations for the next decade appeared first on COMMUNIA Association.

Our new policy recommendations address key policy opportunities for EU lawmakers to expand the Public Domain, increase access to and re-use of culture and knowledge and leverage the power of the digital transformation for society.

The policy recommendations will supersede the 14 existing policy recommendations that have guided our work in the past decade and have made a real contribution to the evolution of the EU copyright framework. On the 31st we will discuss the new policy recommendations with lawmakers, activists and academics. For this, we will be joined by MEP Tiemo Wölken and Professor Severine Dusollier (SciencePo).

After the launch of the recommendations (and of our new website), there will be a networking reception with the ability to exchange views with the COMMUNIA core team.

The event is open to everyone subject to registration here. We kindly ask you to confirm your attendance by Friday, May 27th. In case the max. number of registrations is reached, participants will be confirmed on a first-registered, first-served basis.

We are looking forward to toasting to the next decade with you!

The post Join us for the launch of our new policy recommendations on 31st May in Brussels appeared first on COMMUNIA Association.

Less than a year ago, we celebrated COMMUNIA’s 10th anniversary, assessing how its foundational 14 policy recommendations contributed to the expansion of the public domain during the 2011-2021 decade. At that time, we also announced that we would update our policy recommendations for the decade to come.

We have consulted with many copyright experts and key stakeholders over the past months to identify new priorities for the decade to come. That process has now come to an end and we are looking forward to presenting the results publicly, in an in-person event that will bring together EU policymakers and academics. The discussion will be followed by an apéro reception at the venue.

The event is open to everyone subject to registration here. We kindly ask you to confirm your attendance by Friday, May 27th. In case the max. number of registrations is reached, participants will be confirmed on a first-registered, first-served basis.

We are looking forward to toasting to the next decade with you!

COMMUNIA

The post Save the date: COMMUNIA’s new policy recommendations to be launched on May 31st appeared first on COMMUNIA Association.

The Salon started with João Pedro Quintais (Assistant Professor at the Institute for Information Law (IViR), University of Amsterdam), who presented an overview of the case and the three main takeaways of the judgment, according to his preliminary reading of the judgment. First, the Court clarified that Article 17 follows a normative hierarchy, where the obligation of result to protect user rights or freedoms takes precedence over the obligations of best efforts that exist for preventive measures. Secondly, the ruling makes it clear that ex-post procedural safeguards are insufficient to take care of overblocking; ex-ante safeguards are also required to protect user rights or freedoms. Finally, with regards to filtering measures, it appears that it will be difficult to argue that the judgment leads to a conclusion that is different from the AG Opinion, according to which only manifestly infringing content can be blocked at upload.

Next, Marco Giorello (Head of the European Commission’s Copyright Unit at DG CONNECT) shared his first insights on the judgment. Giorello started by saying that the Commission was satisfied that the Court had not only confirmed the validity of Article 17 but it had also largely confirmed the interpretation of the provision brought forward by the Commission. He highlighted that, since the judgment did not define how exactly the national legislator has to implement Article 17, the Commission’s guidelines for the implementation of Article 17 (which Giorello could not yet confirm if the Commission would revise in light of the judgment) could help legislators, courts and market players to get a sense of what could be a practical way of implementing the general principles drawn by the CJEU. Finally, he added that, while it is not possible to draw firm conclusions on what the judgment means for the Member States’ implementation (namely if they could make literal implementations of Article 17), it is very clear that ex-post redress mechanisms are not enough and there needs to be an ex-ante consideration for users rights leading to the distinction between lawful/unlawful content at upload.

The third speaker, Felix Reda (former MEP and Control © project lead at the Gesellschaft für Freiheitsrechte), started by highlighting that, given that the CJEU had already confirmed that under very certain circumstances automated content recognition technologies can or should be used, he was quite happy with the outcome of the judgment, since the Court now sets specific requirements for upload filters, namely that they cannot be used unless they can ensure that lawful content does not get blocked, which is a very high bar to meet. Reda then focused his intervention on the discussion of who has to define the ex-ante safeguards against overblocking. In his view, the platforms cannot be the ones defining the technical parameters of the upload filters. According to Reda’s reading of the judgment, this follows logically from the conclusion that the platforms cannot be required to employ upload filters that do not adequately distinguish between legal and illegal content, together with the conclusion that they cannot be required to make an independent assessment of the lawfulness of the content at upload. As a consequence, the verbatim implementations of Article 17 appear to not be enough. Member States need to define ex-ante safeguards in the law (or, possibly, in secondary legislation).

Finally, Eliška Pírková (Global Freedom of Expression Lead at Access Now) presented the civil society and fundamental rights perspective and connected the discussion with the recently finalized Digital Services Act. Pírková started by recalling that the civil society has for many years challenged the deployment of upload filters because they impose ex-ante restrictions on legal forms of expression. Still, since upload filters are a reality, she welcomed the fact that online platforms do not have to turn into judges of the legality of uploaded content; that filtering system must be able to recognize, and not automatically block, lawful content; and the ex-ante safeguards of fundamental rights of users. She then turned on to discuss the relationship between the horizontal umbrella framework provided by the DSA and the sectoral legislation that precedes such regulation, such as Article 17 of the DSM directive.

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

The post Video recording of the COMMUNIA Salon on the CJEU decision on Article 17 appeared first on COMMUNIA Association.

Article 17 contains sufficient safeguards to minimise the impact of upload filters on fundamental freedoms

According to the CJEU, the preventive measures to monitor and block users’ uploads envisioned by Article 17(4) constitute a limitation on the exercise of the right to freedom of expression and information of the users of online sharing services, but such a limitation is compatible with Article 11 of the Charter of Fundamental Rights of the European Union, since all the conditions laid down in Article 52(1) of the Charter are satisfied.

The Court held that the risks that the use of upload filters entails for the right to freedom of expression and information of users of sharing platforms have been sufficiently addressed by the EU legislator, which laid down sufficient safeguards in Article 17(7), (8) and (9) to protect those rights:

• online sharing providers have an obligation of result to not preventively block lawful content (Article 17(7));
• those providers are only obliged to detect and block content in on the basis of  relevant and necessary 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 them (Article 17(8));
• additionally, and as final safeguard for situations where, despite the obligation in Article 17(7), those providers nevertheless block such legitimate content, users have at their disposal a complaint and redress mechanism as well as out-of-court mechanisms (Article 17(9)).

Upload filters can only be used if they are able to recognize, and not automatically block, lawful uploads

While Article 17(4) does not define the specific measures that online sharing platforms should adopt to monitor and block users’ uploads, the Court considered that the EU legislator has laid down a clear and precise limit in Article 17(7) and (9): measures which filter and block lawful content at upload are off limits.

In the Court’s view, the measures adopted by sharing services to comply with their obligations under Article 17(4) must “be strictly targeted in order to enable effective protection of copyright but without thereby affecting users who are lawfully using those providers’ services”. The Court says that this obligation imposed on sharing services to not affect the essence of the fundamental rights of users who share lawful content on their platforms clearly follows from Articles 17(7) and (9).

This implies that, if the online sharing platform adopts a filtering system, such a system must be able to recognize, and not automatically block, lawful content. The Court is adamant:

“(A) filtering system which might not distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications, would be incompatible with the right to freedom of expression and information, guaranteed in Article 11 of the Charter, and would not respect the fair balance between that right and the right to intellectual property.”

Unlike the Advocate General in his Opinion, the Court does not formulate any criteria to help determine cases where the content concerned must be presumed to be lawful and the upload must be permitted. The Court only clarifies that this should not require an independent assessment by the platforms of the information provided by the rightholders and of any copyright exceptions. In other words fully automated filters should be only allowed to block (manifestly) infringing uploads. In all other cases matches must be flagged and reviewed by rightholders who can request the removal. According to the Court, such removal requests must be “duly substantiated”.

Ex-post safeguards are additional to ex-ante protections of users rights

With this ruling, the CJEU decided one of the most controversial questions in the debate surrounding the implementation of user rights safeguards: whether those rights need to be protected ex-ante, or if it is enough to consider them after the upload has been blocked.

Rejecting the interpretation put forward by the French and Spanish governments, according to which content could be systematically blocked ex-ante, provided that users could obtain its reinstatement ex-post, the Court ruled that:

“(T)he first and second subparagraphs of Article 17(9) of Directive 2019/790 introduce several procedural safeguards, which are additional to those provided for in Article 17(7) and (8) of that directive, and which protect the right to freedom of expression and information of users of online content-sharing services in cases where, notwithstanding the safeguards laid down in those latter provisions, the providers of those services nonetheless erroneously or unjustifiably block lawful content.” (emphasis added)

The post Case C-401/19: CJEU limits the use of automated filters and protects user rights at upload appeared first on COMMUNIA Association.

To kick off the festivities, we reviewed the 14 policy recommendations that COMMUNIA issued 10 years ago to see what happened to them over the past decade (from 00:03 to 00:21 in the recording). As it turns out a fair number of them have been at least partially – or  even fully – implemented, in many cases thanks to advocacy work that we and our partners have done 

For the second part of the event, we brought together three friends from academia who have influenced our work in important ways to reflect on COMMUNIA’s work. 

First, Prof. Juan Carlos de Martin (Politecnico di Torino and founding father of the COMMUNIA project) reflected on what makes COMMUNIA a unique community which started 15 years ago as an EU-funded network and that continues the importance of public funding for communities advocating for the public interest to this day.

His intervention was followed by Prof. Bernt Hugenholtz (University of Amsterdam) who stressed that public interest copyright advocacy remains needed for the decade to come. In particular, he highlighted the need to ensure copyright exemptions for all public works and databases in the EU.

Finally, Prof. Pamela Samuelson (University of California, Berkeley) reminded the audience of the urgency of reviving the general interest in the public domain, which sometimes feels detached from society. In this context, she encouraged us to revive the interest for flexible exceptions to copyright in Europe.

After these contributions, Marco Giorello, the long-time Head of the European Commission’s Copyright Unit shared his thoughts on the future of European copyright policy (from 00:47 to 01:00 in the recording). As part of his intervention, he pointed out that the struggles connected to Article 17 of the DSM Directive are only the beginning of a much larger challenge to redefine the relationship between fundamental rights and automated copyright enforcement.

The event concluded with a panel discussion on the future of the EU copyright policy (from 01:01 in the recording). Catherine Stihler (Creative Commons) expressed hope for a more unified civic voice defending the Public Domain as we’re entering the next policy cycle (from 01:02 to 01:06 in the recording). Melanie Dulong de Rosnay (Centre Internet et Société CIS-CNRS), argued that strategic litigation is a crucial form of copyright advocacy, an area in which we haven just taken first steps (from 01:07 to 01:15 in the recording). Finally, Felix Reda (Gesellschaft für Freiheitsrechte) highlighted the need for public copyright registration systems to ensure the protection of the public domain, users rights and to ensure fairer remuneration flows in the online environment (from 01:17 to 01:24 in the recording).

We are grateful to all the speakers for their contributions and to everyone who celebrated our birthday with us. The discussion showed that our efforts to promote the public domain have borne fruit, yet we still have a long way to go. The event has shed a light on some of the policy challenges on which we should focus in the upcoming decade.

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