We have vocally supported a review of the geo-blocking rules for AV content. However, a majority of MEPs gave in to a campaign by an AV industry coalition that relied on unfounded claims and fearmongering. Industry claimed that a reform of the geo-blocking rules would threaten 15 million creative sector jobs and 4.4% of the EU’s GDP. These numbers have no basis in fact, as we explained in a previous blogspot. First, there are various ways to maintain the current territorial financing model (allowing passive sales or introducing curtain periods for example). Second, no independent economic impact assessment has been carried out yet, which would be the basis for any legislative initiative. According to the campaign, the abolition of geo-blocking would also lead to less diversity and less content being produced in fewer languages – an extremely hypothetical construction with, again, no basis in fact.

The industry campaign was so effective that Parliament even removed § 25 from the report that would have expounded the problem of geo-blocking of content that is “funded or co-funded” by the EU. One would believe that the demand that “whenever EU funds are involved in the financing of audiovisual content, no EU citizen should be deprived access to it” is a fairly uncontroversial one. But not for the AV industry, which is happy to accept public funding and still wants to call all the shots on distribution.

If we don’t see a reform of the geo-blocking rules for audiovisual content, European consumers will continue to be locked out from content that they would be willing to pay for if it isn’t licensed in their country of residence. As the Commission’s first short-term review showed, consumers in the smaller markets are most affected by the current regime. While European consumers on average have access to only 14% of the films available on line in the EU (p. 10), consumers in Greece, for example, only have access to 1.3% of all the titles in all Member States (p. 68 of Staff Working Document part two).

The result is a frustrating reminder that overblown statistics and other baseless claims remain an effective lobbying tool in Brussels. So what should happen next? COMMUNIA has been a constructive participant in the European Commission’s stakeholder dialogue where a number of options have been explored to abolish geo-blocking without harming the territorial financing model of the AV industry. These include proposals from stakeholders (including from us) for pilot projects to make publicly funded content available on a European media platform upon expiry of a curtain period against remuneration. The next Commission should take the initiative and implement such a pilot project to assess the economic and social impact of a gradual fade-out of geo-blocking for audiovisual content.

The post This item still isn’t available in your country appeared first on COMMUNIA Association.

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

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

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

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

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

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

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

Open letter to the European Parliament

Dear Members of the European Parliament,

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

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

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

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

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

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

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

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

Signed,

COMMUNIA Association for the Public Domain

Creative Commons

Federal Union of European Nationalities (FUEN)

Vrijschrift

Wikimedia Deutschland

Xnet, Institute for Democratic Digitalisation

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

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.

Article 17 of Directive (EU) 2019/790 on copyright in the Digital Single Market (CDSMD) has been subject to much debate even before its enactment. The latest twist is the CJEU’s ruling in the Polish action for annulment of Article 17 CDSMD. Uncertainties about the precise and correct practical application of Article 17 CDSMD remain. The judgment, however, provides some clarity on how this norm must be transposed into national law to ensure compliance with fundamental rights, particularly with freedom of expression and information as enshrined in Article 17(2) of the Charter of Fundamental Rights of the European Union.

Compatibility of verbatim transpositions and why the German approach is ahead of the pack

Article 17 CDSMD is open to various interpretations – as has become clear during the hearings before the CJEU. While Spain and France argued that an implementation of ex post safeguards is sufficient to protect user rights, the CJEU later confirmed the position taken by the Advocate General and Member States like Germany that Article 17 CDSMD’s ex post safeguards must necessarily be supplemented by ex ante safeguards. These should address the danger of overblocking, that is the undue blocking of lawful content by OCSSPs before its dissemination in order to comply with the obligations from Article 17(4) CDSMD.

The judgment emphasises the need for ex ante safeguards against rampant blocking under Article 17(4) CDSMD. This fact, together with the obligation for Member States, when transposing Article 17 CDSMD, to strike a fair balance between the various fundamental rights, have raised doubts about the compatibility of verbatim transpositions. Other commentators have rejected these, arguing that minimal verbatim transposition is necessary to avoid impairing the harmonisation effect of the Directive.

The CJEU did not concern itself with national transpositions, but rather solely Article 17 CDSMD in its original version, and found an interpretation in compatibility with the freedom of expression. The CJEU held that Article 17(4) CDSMD is accompanied by appropriate safeguards. The judgment requires Member States to ensure an interpretation of national provisions that contains these safeguards.

As the judgment itself already identifies an interpretation of the Article in line with fundamental rights, the same must surely also apply to identical wording (i.e., copy and paste transpositions) in national law. This has to be the case as Member States are bound to interpret their laws in line with the CJEU’s interpretation. National courts, when interpreting national law, must have regard to the case law of the CJEU. Therefore, a conforming interpretation of verbatim transpositions should be ensured. As a consequence, copy and paste transpositions must be considered compatible with the judgment and the fundamental right to freedom of expression.

This does not mean, however, that this kind of implementation is the best in the face of freedom of expression and information. Instead, a more elaborative implementation, which provides more details on the delineation of permitted and prohibited ex ante blocking, should be the preferable way forward.

A conceivably elaborative implementation is the German version of Article 17 CDSMD, as it was transposed in the act on the copyright liability of OCSSPs (UrhDaG). One aspect of particular interest is the concept of a “presumed legal use”. In summary, Germany established a national additional ex ante safeguard for content which either qualifies as minor usage or is marked by the user as legally permitted. Under certain requirements, this content is presumed to be lawful and therefore cannot be blocked by automated means implemented by the OCSSPs. If rightholders contest this content, they have to initiate the complaint procedure, which may result in the content being taken down.

While there is an ongoing discussion about the compatibility of the German mechanism with the EU template, it is true that it dares to do something that had been missing from the EU Directive: it defines circumstances under which ex ante blocking is not possible.

The need for a definition of “manifestly infringing”

It has to be said that while this constitutes a step in the right direction, the current German provisions may not be the ultimate solution. Rightholders argue that even the unjustified usage of a film sequence as short as 15 seconds can significantly harm their economic interests, when only blocked after an ex post intervention. Nevertheless, the German transposition puts requirements in black and white for the design and use of automated content recognition (ACR) technology and automated blocking based on it.

In order to protect freedom of expression, it is important to be more specific about the requirements and circumstances under which automated ex ante blocking of content is permissible. One of the key points from the judgment in the Polish case is that for content to be blocked ex ante without freedom of expression being unjustifiably harmed, no independent assessment of its unlawfulness must be necessary. In other words, content needs to be “manifestly infringing”, which makes this term the central standard for determining whether the prevention of an upload was lawful or not.

Therefore, it should not be left to OCSSPs to determine when content is infringing enough to be regarded as manifestly infringing and can thus lawfully be blocked automatically. Rather, regulators should find ways to define requirements. This would not only provide clarity to users, rightholders and platforms, but deployed at the EU level it would also contribute to the harmonisation objective.

The implementation of the German legislator may serve as a starting point. However, it only defines circumstances under which automated blocking is not permissible, i.e., when manifestly infringing content is not present. Therefore, the law only gives a hint of a negative definition. A positive definition, which indicates when content can be blocked automatically, has yet to be found.

Implications of the judgment for the design of the complaint mechanism

In the context of national transpositions of Article 17 CDSMD, two remarks regarding current questions of implementation should be made.

The first concerns national provisions in respect of the complaint mechanism as set out in Article 17(9) CDSMD. From the judgment in the Polish case, we know that the complaint mechanism is considered as an additional (ex post) safeguard, which applies in “cases where, notwithstanding the [ex ante] safeguards […], the providers of those services nonetheless erroneously or unjustifiably block lawful content” (para 93).

The complaint mechanism is therefore intended to deal with cases where there is a dispute as to whether the content is manifestly infringing. In those cases, however, it is in the nature of things that the content in question stays offline for the duration of the complaint mechanism. This presupposes that the basic requirements for ex ante safeguards have been implemented and that the ex post complaint mechanism only applies in exceptional cases. It is only under these conditions that provisions like the Italian one under which all contested content shall remain disabled for the duration of the complaint procedure can be considered compatible with the judgment.

The Commission’s category of “earmarked content” needs revision

The second aspect relates to earmarked content as mentioned in the Commission’s Guidance on Article 17. The Guidance defines earmarked content as content flagged by rightholders that is particularly valuable and could cause them significant harm if it remains available without authorization (examples include pre-released music or films). According to the Guidance, earmarked content should be specifically taken into account when assessing whether OCSSPs have made their best efforts to ensure the unavailability of content.

What is highly problematic about this provision, however, is that OCSSPs would be forced to exercise particular care and diligence in this case, which would ultimately result in a higher blocking rate and ignore the requirements of the judgment in the Polish annulment action. As a solution, the Commission presents rapid ex ante human review in the Guidance, which takes place for such earmarked content before the content gets online, when detected by the filters.

This, however, does not comply with Article 17(8) CDSMD and what follows from the Glawischnig-Piesczek and recent Poland cases. According to these cases, a provider can only be required to remove content where a detailed legal examination is not necessary. And, although framed as “rapid ex ante review”, this is nothing other than a detailed legal examination.

Therefore, the Commission needs to revise its Guidance on this point and Member States should choose an implementation of earmarked content which respects the case law. A possible solution could be to use an earmark mechanism not ex ante but ex post. Content which is marked by rightholders as of significant economic value and matches content uploaded by users could be processed through an accelerated complaint procedure. This would be similar to what Article 19 of the Digital Services Act (DSA) establishes.

The DSA needs to fix Article 17 CDSMD

The DSA raises hopes for more harmonisation of details related to the interpretation of Article 17 CDSMD. Due to a largely overlapping scope of application for OCSSPs in the area of copyright, it can be assumed that the DSA provisions apply on the basis of a lex generalis relationship to Article 17 CDSMD. Provisions such as Article 17 DSA, that sets out detailed rules for a complaint mechanism, or Article 19 DSA, with its trusted flagger regime, could influence the way Article 17 CDSMD works in practice.

Due to its nature as a regulation, the DSA should lead to greater harmonisation. In order to achieve this, it would in addition be necessary to use the aforementioned revision of the Guidance to develop a positive definition of manifestly infringing content which can be used as a basis for designing the algorithms of OCSSPs.

The post Implications from C-401/19 for National Transpositions in the Light of Freedom of Expression appeared first on COMMUNIA Association.

Over these three meetings it became increasingly clear that the majority of the invited stakeholders were not interested in working with the Commission on improving cross border access to audiovisual content in the EU. With the exception of the organisations representing users (apart from COMMUNIA these included BEUC and the Federal Union of European Nationalities) and a few dissident voices within the AV sector the representatives of AV rightholders, distributors, producers and creators insisted that the current system of territorial copyright licensing is working well and that it is essential for the financial sustainability of the European audio-visual sector as a whole.

According to them, the fact that this system also leads to widespread geo-blocking and deprives many Europeans of access to cultural works that are often (at least partially) funded with public money does not justify an intervention in the “well-balanced” business models that underpin AV production in Europe. In addition, they argue that it should be up to the market to increase cross-border access to AV works in the EU (while at the same time lobbying for increased EU support for the production and distribution of AV works).

Request for proposals

At the beginning of this year — after having been shown the cold shoulder by the AV sector — the Commission put the stakeholder dialogue on hold to reconsider its approach. Then, in June of this year, the Commission sent out a letter to all participants in the stakeholder dialogue inviting them to:

… submit proposals for concrete actions or roadmap presenting the steps you intend to take in order to contribute to improving the online availability and cross-border access to audiovisual works across the EU. We would welcome your proposals for commitments by Friday 23rd September 2022.

Adding that after assessing the proposals received, the Commission would

… convene a final meeting of the dialogue in the autumn in order to formally adopt them as participants’ commitments.

Last week, in response to this invitation, we submitted a proposal for a fallback TVOD service for publicly funded AV works. Here, we develop the concept for an independent not-for-profit platform that would ensure the availability of AV productions – that have received public funding – in all member states of the European Union. 

The platform that we are proposing would be a Transactional Video on Demand platform (TVOD – industry parlance for a pay per view platform) and as such would be something that can generate extra revenue for the producers of films made available via the platform. It is not a proposal to make these works available for free.

Our proposal focuses on AV productions that have received public funding — which is the vast majority of AV productions made in Europe — because here the moral and cultural imperatives to make them available across all EU member states is the strongest. Implementing this proposal, which in itself accepts the current practice of exclusive territorial licensing, and — ironically — relies on geo-blocking as a mechanism for this, would be an important step towards a future without structural geo-blocking of AV works that are available in the EU.

We are looking forward to discussing our proposal with other stakeholders in the upcoming meeting of the stakeholder dialogue.

The post Our proposal for ending geo-blocking of audiovisual works in the EU 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).

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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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