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.

Over the past few weeks, rightholder organisations united in the Creativity Works! Coalition have started a massive campaign attempting to neuter one of the core recommendations contained in the report: A request to the European Commission to undertake “a comprehensive revision of the Geo-blocking Regulation by 2025 the latest, with a particular view on an inclusion of audiovisual services in the scope of the Regulation.”

How is it possible that such a seemingly procedural request about the review of a piece of legislation is provoking such a strong reaction from rightholders? A campaign that is headlined by the following statement that features prominently on the campaign website:

Geo-blocking is one of the foundations for Europe’s creative and cultural sectors, providing Europeans with the means to create, produce, showcase, publish, distribute and finance diverse, high-quality and affordable content.

The idea that denying people access to culture is a “foundation for Europe’s creative and cultural sectors” is of course a rather disturbing one, but points right at the heart of the problem that the IMCO report is trying to address.¹ As long as AV rightholders do not even see that denying people access to cultural productions — that they want to pay for! — is nothing but blatant discrimination based on geographical location, requiring a regulatory intervention.

After having gotten a free pass when the original geo-blocking resolution was adopted, the upcoming review must now include an effort to bring AV services within the scope of the regulation to end this unjustified and counterproductive practice.

What the AV sector is doing with this its current campaign is trying to prevent EU lawmakers from reviewing the regulation, while no-one outside of the creative industries is paying attention, because they know very well that their arguments against inclusion do not have much to stand on.

A bit of history

So how did we get here? The 2018 Geo-blocking Regulation was adopted to make an end to unjustified geographical restrictions in the sale of goods and services within the EU. It addressed the problem of so-called “geo-blocking” — the baseless discrimination of customers accessing such services from other member states — with the aim to facilitate access to cross-border offers within the EU’s internal market. The directive contains a number of exceptions to this principle, one of these excludes audio-visual services from its scope. This exception has been the result of intense lobbying by the AV sector, which had argued that the underlying business models allowing the sector to thrive rely on territorial copyright licensing and that in order to make such licensing work in the online environment, online services must be able to block access from unlicensed territories.

In 2020, the European Commission published its first evaluation report covering the first 18 months of implementation of the Regulation. Regarding a possible extension of the scope of the Regulation to audio-visual content, the report highlighted potential benefits for consumers, (the availability of a wider choice of content across borders) but also identified a potential impact that such an extension would have on the overall dynamics of the audio-visual sector. The report did not contain specific suggestions or a concrete timeline to revise the Regulation, instead it identified a need to further assess the situation.

As a follow up of the evaluation report, the Commission launched a stakeholders dialogue on cross-border availability and access to audiovisual content across the EU. COMMUNIA has been part of this stakeholder dialogue (as one of only three organisations representing consumers and the public interest) which had the objective to let stakeholders propose concrete, non legislative, measures to improve the online availability and cross-border access to audiovisual works across the EU. Most, if not all, of the organisations that now campaign against the adoption of the IMCO report also participated in this stakeholder dialogue. Throughout the stakeholder dialogue, these organisations mainly sought to undermine the process by questioning the legitimacy of the process and stating that geo-blocking is essential to their financing models. While the stakeholder dialogue resulted in a number of proposals (including one from us), none of the organisations representing rightholders submitted any proposals aimed at improving cross border access. Instead they asked for more funding and tried to deflect the discussion towards the non-issue of “findability” of legal content (something the current campaign attempts as well).

In other words, the very same organisations that successfully sabotaged the stakeholder dialogue aimed at finding non-legislative solutions for geo-blocking of audio visual content are now lobbying against having EU lawmakers take another look at the issue.

But what is really at stake?

If you have to believe the campaign website set up by the Creativity Works! Coalition, then ending Geo-blocking of AV content would harm “15 million creative sector jobs” and “jeopardise a €640 billion industry.” These numbers are, even by the vastly inflated Brussels lobbying standards, simply absurd as they imply that the entire European Creative and Cultural Industries would be affected by a possible inclusion of AV services in the scope of the Geo-blocking Regulation — something that is obviously not true.²

It is true that territorial licensing arrangements play an important part in the financing arrangements for audiovisual productions (something that we have acknowledged in our submission for the stakeholder dialogue). However this does not mean that in order to preserve the ability to licence it is necessary to geo-block access to AV works from unlicensed territories within the EU.

Most of the claims about economic and cultural damage made by the CW! campaign find their origin in the idea that the IMCO report would require the AV sector to abandon territorial licensing, which is something the IMCO report does not propose. On the contrary, the need to safeguard territorial licensing is mentioned repeatedly throughout the report.

The report also does not call for a shift towards an EU-wide licensing for audiovisual services. However the CW! Campaign repeatedly points to the costs of such EU-wide licenses as the basis for its predictions of further consolidation in the industry that would lead to less cultural diversity.

Another aspect of the report that is under attack by the CW! Coalition is the fact that the report makes a link between increasing demands for cross-border access to AV by consumers and the increased use of VPNs, which allows them to circumvent geo-blocking. Here. the industry would very much prefer the report not to describe existing consumer behaviour that does not align with the picture of reality that they would like to see.³

As a result, one of the core insights of the IMCO report, that as a consequence, the adaptation of existing business models to the changing environment is needed both for consumers and businesses is once again at the risk of being ignored. Rightholders are seeking to get this conclusion removed from the report because the stakeholders on the supply side of the AV sector have again decided that rather than adapting to and working with consumer expectations, they can rely on their considerable lobby power to preserve the status quo that they have gotten comfortable with.

The European Parliament should resist caving in to this ongoing campaign against the IMCO report, and support the report’s call for an evidence-based revision of the Geo-Blocking Regulation in the next mandate. Contrary to what the CW! Campaign wants us to believe, this would neither mean the end of territorial licensing, nor the demise of the European Cultural and Creative Industries and it would also certainly not lead to less cultural diversity. If done well, ending geo-blocking would provide all Europeans with more legal access to a more diverse offering of AV content and a thriving cultural sector that can finally stop claiming that denying people access to culture is in anyone’s interest.

Endnotes

1. It seems that the creators if the campaign are at least marginally aware of this given that a position paper published by the campaign attempts — somewhat cringe worthy — to reframe “geo-blocking” as “geo-enabling”.
2. The numbers used by the campaign come from a 2021 EY study that defines the Cultural and Creative Industries as the combination of the following sectors: Advertising, Architecture, Audiovisual, Books, Music, Newspapers and magazines, Performing arts, Radio, Videogames and Visual arts. A substantial proportion of these has nothing to do with audiovisual content and geo-blocking is relevant only in a very small sub section of these sectors.
3. This is reminiscent of multiple exchanges during the stakeholder dialogue during which mentions of piracy as a rational response to being denied lawful access to a desired cultural good, were met with horrified responses from rightholders demanding that mentions of illegal acts should not be permissible in the context of the stakeholder dialogue.

The post Denying people access to culture is in no-one’s interest – let’s pave the way for a revision of the Geo-blocking Regulation! 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.

Late last week, the CJEU unexpectedly postponed the Advocate General opinion in the Polish case challenging the fundamental rights compliance of Article 17 of the DSM directive by almost three months. Knowing that the upcoming Commission guidance was discussed extensively at the CJEU hearing on the Polish case in November, the postponement could very well mean that the Advocate General wants to see the document before issuing an opinion.

While the Commission has been hinting at the imminent release of the guidance for a few months now, the timing indicates that the Commission precisely wanted to avoid giving the Advocate General time to study the guidance. This does not bode well for the fundamental rights safeguards the Commission is planning to present. Signals are mounting that the delays are the result of intense behind-the-scenes political wrangling aimed at undermining the user rights safeguards to be included in the guidance. 

That’s why, together with 20 other users’ rights organisations who have participated in the EU stakeholder dialogue on the implementation of Article 17, we have sent an open letter to the Commission, raising our concerns about the handling of the final phase of this process. The letter urges the Commission “not to weaken its guidance through open ended exception clauses that seem to benefit particular rightsholders at the expense of users’ fundamental rights” and stresses that “strong ex-ante fundamental rights protections are necessary to meet the obligation of result to protect users’ fundamental rights.” 

The letter further highlights the fact that, by issuing guidance that substantially diverges from the position taken before the CJEU, the Commission would indicate that it is ultimately lacking the political will to ensure that the required fundamental rights protections will be included in national implementations of the directive.

How did we get here?

The Commission has been working on drafting its guidance since the conclusion of the stakeholder dialogue meetings in February of last year. In July the Commission published a first draft of its guidance as part of a targeted consultation. In its draft, the Commission made it clear that, in order to protect fundamental rights of users and in order to comply with the provisions of the directive, national implementations of Article 17 must contain ex-ante user rights safeguards, that limit the automated blocking of uploads to situations where an upload is clearly (“manifestly”) infringing. 

The draft guidance showed that the Commission was willing to live up to its role as the steward of the complicated legislative compromise embodied in Article 17. While the approach received massive criticism from rightsholders and some Member States, in November the Commission doubled down on this approach in its intervention in the Polish CJEU case challenging the fundamental rights compliance of Article 17. Together with the Council and the Parliament the Commission argued that Article 17 respects fundamental rights because Member States must implement it in a way that ensures that uploads that are not manifestly infringing cannot be automatically blocked. The Commission wanted the CJEU to believe that the upcoming guidance would be based on this principle.

Almost half a year later the guidance is still nowhere to be seen. Yesterday Commissioner Thierry Breton informed members of the CULT committee of the European Parliament that the guidance would be presented “within the next weeks”, but refused to answer a direct question from MEP Marcel Kolaja (from 14:27:55 onwards) if the guidance would “defend the legal interpretation that the Commission held before the CJEU, according to which only manifestly infringing content may be blocked?”. 

This refusal to answer this question must be placed in the context of the larger developments. Over the past few months the final version of the guidance has been the object of intense, behind the scenes, political wrangling between different parts of the Commission. In February, MEPs critical of the principles expressed in the draft guidance held a closed door meeting with Commission representatives and select Member States opposing the Commission’s position. In the following week a high ranking member of the Cabinet of Executive Vice President Magrete Vestager – who oversees this file – received a delegation of rightholder organisations who have been rallying against the principles underpinning the Commission’s draft guidance to discuss the Copyright Directive. 

Calling the Commission’s bluff

In light of these efforts to undermine key elements of the guidance, the mounting delays of the publication give reason to believe that the final guidance will significantly water down the safeguards for users’ fundamental rights in order to please particularly powerful rightsholder groups. If this were to be the case it would significantly undermine the credibility of the Commission, which throughout all of last year had run the stakeholder dialogue in a transparent manner in line with its role as the steward of the legislative compromise embodied in Article 17. 

More importantly, such a weakened version of the guidance would also undermine the Commission’s credibility with the CJEU, who ultimately needs to decide on the fundamental rights compliance of Article 17. Having argued that the upcoming guidance would signal a strong commitment to protecting users’ fundamental rights, any weakening of this position by the Commission would give the Court additional reasons to annul Article 17 (as requested by the Republic of Poland). 

If one assumes that it was the Commission’s intention to issue its guidance only after the opinion of the Advocate General, then the Advocate General has called the Commission’s bluff: By delaying his opinion to July the Advocate General is forcing the Commission to show its hand before issuing his opinion. In this situation the Commission would do well to stick to the principles underpinning its draft guidance and create legal clarity as soon as possible.

The post Open letter on Article 17: Is the Commission about to abandon its commitment to protect fundamental rights? appeared first on COMMUNIA Association.

The first part contains a “review of existing best practices” of the use of content recognition tools. Here, the authors argue that such tools “must be given their rightful place in the implementation of Article 17 of the Directive”. The second part of the report focuses on the “balance between the fundamental rights set out in Article 17”. The third and concluding part of the report contains a number of recommendations for implementing Article 17 in France (and beyond). 

The central argument that is woven throughout the CSPLA report is that automated content recognition technologies already play an important role in managing copyright on digital sharing platforms, that Article 17 provides for sufficient fundamental rights protection through the complaint and redress mechanism alone, and that temporary restrictions on freedom of expression are considered acceptable to achieve the goal of stronger protection of intellectual property rights. A more detailed critique of some of the core arguments contained in the middle part can be found in this post on the Kluwer Copyright Blog. 

To mark the occasion of the publication of the CSPLA report, the French permanent representation in Brussels hosted a (virtual) event that was clearly intended to demonstrate additional support for the French position in the discussion about the implementation of Article 17. 

For the presentation of the report the organizers had invited the authors of the report and three external speakers, representing the European co-legislators: MEP Axel Voss (the European Parliament’s rapporteur for the DSM directive), Marco Giorello (the head of the Copyright Unit of the European Commission) and Ricardo Castanheira (representing the Portugese Council Presidency). If the organizers of the event had hoped that these speakers would express support for the French position in the Article 17 implementation discussion, then they must have been quite disappointed: None of the three respondents came forward with unqualified support for French interpretation of Article 17. As expected, Marco Giorello made it clear once more that the Commission does not agree with the French position that there is no need for ex-ante user rights safeguards in national implementations of Article 17:

I will not surprise anybody. I think if I say that there is our disagreement that we still have when it comes to the legal interpretation of the mechanism under Article 17(7). […] The interpretation of the report is that legitimate uses are essentially guaranteed ex post, through the redress mechanism.

Now, of course, the redress mechanism is very important, but what the Commission has consistently considered since the beginning of this discussion that an ex-post redress is not enough, and that the legitimate uses have to be considered also ex-ante. And this is pretty much what we have explained in the constitution paper of last summer, which has created a lot of debate. But it’s also the position that we have proposed to the Court of Justice.

While this clear reiteration of the Commission position was to be expected, the fact that MEP Voss backed up this reading was not. Voss couched his intervention in expressions of support for the French position in the debate (and against the German position), but his interpretation of the provisions at the core of the implementation dispute also contradicted the French argument that the ex-post complaint and redress mechanism was intended to serve as the only user rights safeguard. Instead he argued that paragraph 17(7) requires platforms ensure that uploads that contain third party works used under an exception or limitation (“legally changed”) will not be blocked: 

To avoid over blocking, […] we said, the platform has to upload legally changed, copyright protected works. […] now, I’m still interpreting this paragraph seven in a way that they have to upload, If this is legally changed copyright protected works. 

This is an accurate description of both the letter of Article 17(7) and its intended effect and directly contradicts the French reading of the provision in question. It speaks to Mr Voss’ integrity that he continues to defend the essence of legislative compromise that he brokered in order to get the DSM directive through the European Parliament. 

The fact that none of the external speakers was willing or able to back up the French interpretation of Article 17 (Mr Castanheira’s interventions were focused on the Digital Services Act and did not touch on the substantive questions addressed by the report) shows how far the French position is removed from the actual text of the Directive. Instead of demonstrating support for the French position, last week’s event further undermined the credibility of the French government’s attempts to present itself as the guardian of the original intent of the directive.

Still it is unlikely that the discussion about the “correct” interpretation of Article 17 will be settled anytime soon. During the event the Commission indicated that its long-awaited guidance will not be ready before mid-march of this year at the earliest. In the meantime the different camps are creating further facts on the ground. The French government announced that its implementation decree will be published within “a few weeks” and yesterday, the German government approved its implementation proposal (that introduces substantial ex-ante safeguards for users’ rights) which is now heading for discussion in the parliament . 

The post France once more fails to demonstrate support for its interpretation of Article 17 appeared first on COMMUNIA Association.

The defendants in this case are the European Parliament and the Council of the European Union. In addition, the European Commission and the governments of France and Spain intervened in the case on the side of the defendants. Advocate General Saugmandsgaard Øe was also present at the hearing.

Even for astute followers of the discussions around the implementation of Article 17, the hearing contained a number of surprises. While several Member States have been soldiering on with their national implementation proposals with little regard for the fundamental rights implications of Article 17, the hearing showed that the Court is taking Poland’s complaint very seriously and that the compliance of the contested provisions of Article 17 with the Charter is far from evident. Frequent reference was made during the hearing to the recent opinion of Advocate General Saugmandsgaard Øe in the YouTube and Cyando cases, which is highly critical of extensive obligations on platforms to police the copyright infringements of their users.

On the face of it, the case is about Poland’s request to annul Articles 17(4)(b) and (c) of the DSM directive. Poland argued its case, which essentially rests on the observation that while not explicitly mandating them, Article 17(4)(b) and (c) effectively require platforms to implement upload filters because there are no other effective means to comply with the obligations contained therein. Poland argues that this will lead to censorship and will limit the freedom of information of the users of online platforms.

According to Poland, the key problem with the directive is the move away from active participation of rightholders (as initiators of removal requests in the context of notice and takedown procedures) and instead handing the responsibility of removing infringing uploads over to platforms who will have to develop private enforcement systems to avoid liability for copyright infringement. Because they are not facing any comparable risk when they limit user rights by blocking access to legal content, this creates strong incentives for over-blocking. This in turn will result in censorship and violation of the fundamental rights to freedom of expression and information under the Charter. Consequently, the problematic parts of Article 17 should be annulled by the Court.

All other parties intervening in the case objected to this line of argument and stated that in their view Article 17 does not violate any fundamental rights. However, they presented strikingly contradictory interpretations of what Article 17 actually requires of platforms. There are two distinct lines of argument: The Commission, the Council and the European Parliament argued that that Article 17 contains enough internal safeguards to prevent users’ fundamental rights from being unduly limited. On the other hand, France and Spain argued that some limitations of fundamental freedoms are justified by the objective that Article 17 seeks to achieve.

Best efforts obligation vs an obligation of result

At the core of the issue is the uneasy relationship between the obligation to make best efforts to prevent the availability of specific works contained in Article 17(4)b and the requirement in Article 17(7) that any measures implemented by platforms must not lead to the prevention of the availability of works that do not infringe copyright. In its interventions the Commission made it clear that it views Article 17(7) as an “obligation of result” that establishes the stronger legal norm, which therefore takes precedence over the weaker “obligation of best efforts” in Article 17(4). In the course of the hearing both the Council and the Parliament backed this assessment. In other words, all three EU institutions made the case that where there is a conflict, the protection of the fundamental rights of users must be prioritised over requests by rightholders to block the availability of their works.

In response to questions about the mechanism proposed by the Commission in its guidance consultation, both the Commission and the Council expressed their belief that this conflict of norms can be reconciled by a mechanism that limits automated filtering to “manifestly infringing” uses of works and that requires human review of any matches where there is any likelihood that the use is legitimate. Given the absolute nature of the result obligation in Article 17(7), this would further mean that user uploads must remain available while they are under review and can only be removed once a platform has established that a use is indeed infringing.

In making these arguments in front of the Court, the European Commission effectively doubled down on the approach outlined in its guidance consultation, which has recently been subject to heavy criticism from a group of seven national governments including France and Spain. The Commission’s position is further strengthened by the Council and the Parliament’s interventions in front of the Court, which provided support for the Commission’s reasoning. While it remains to be seen whether the CJEU will be convinced by these arguments (the ruling is not expected until the summer of 2021), it seems clear that the Commission will have to build its implementation guidance on this line of argument. This could have considerable impact on how Member States have to implement the provisions of the directive.

A temporary inconvenience vs irreparable harm

While formally on the same side of the case, the two Member States intervening in the case (France and Spain) brought forward an entirely different line of argument to defend the legality of the directive, which at key points contradicted the arguments brought forward by the EU institutions. According to France and Spain, the proportionality of any limitations of freedom of expression in the directive must be established in relation to the purported objective of the directive. Both France and Spain argued that the directive seeks to address a power imbalance between certain platforms (online content-sharing service providers) and rightholders by bringing the first into the scope of copyright. In simple terms, this is done by establishing that these platforms are directly liable for communication to the public when they make available works uploaded by their users. As i have argued elsewhere, this view is based on a misunderstanding of the “true intent” of the legislator on the part of those national governments, who seem to consider the significant changes that have been made to the text of Article 17 from its inception to its final adoption to be a historic accident rather than an expression of the legislator’s will to protect users’ fundamental rights.

While both Member States concede that their interpretation of Article 17 will ultimately result in situations where measures to prevent the availability of works limit the freedom of expression of users, they argue that in such cases the ex-post complaint and redress mechanism contained in Article 17(9) provides sufficient protection for users’ rights. Both Member States disagreed vehemently with the position of the EU institutions and argued that any conflict between the fundamental rights of rightholders and users must always be resolved in favour of rightholders. Both argued that the harm to rightholders that can be caused by temporary availability of infringing works on platforms is much greater than any harm to users caused by the temporary blocking of non-infringing uploads. They further claimed that while infringing works could “go viral in mere seconds” causing “massive economic harm” to rightholders, requiring users to file complaints when non-infringing uploads are blocked and keeping these uploads offline while the complaints are reviewed would merely constitute a “temporal inconvenience” that is justified given the purported overall objective of the directive to strengthen the position of rightholders vis-a-vis platforms. Consequently, both France and Spain reject the mechanism proposed by the Commission in its guidance consultation as “incompatible with Article 17”.

It remains to be seen how far the Court will be convinced by this line of argument that hinges more on a proclaimed “original intent” of the directive than on its actual text. It is clear that France and Spain are effectively fighting a two-front battle. On one front, they argue that the Polish case is without merit. On the other, they attempt to undermine the EU institutions’ arguments on why the Polish case is without merit in order to defend their own maximalist interpretation of the provision. This contradiction was not lost on the Polish Government, which in its final remarks observed that the interpretation of Article 17 put forward by the Commission and the Council goes directly against what France has argued and that “this clearly shows that there is a problem with Article 17 as such”.

Questions by the Court

A substantial number of the questions from the Court and from the Advocate General focussed on better understanding the relationship between the best efforts obligation in Article 17(4) and the results obligation in 17(7) and the mechanism proposed by the Commission in its guidance consultation. Particular attention was paid to the question of whether uploads must remain available while they are under review or should be blocked until their legality has been confirmed. This strong focus on the guidance consultation almost gave the impression that the hearing was not so much held for the purpose of determining whether the contested provisions must be annulled, but rather to understand if the mechanism proposed by the Commission would achieve an internal balance of Article 17 that offers sufficient protection for the fundamental rights at stake.

One key weakness shared by all parties defending Article 17 was a total failure to point to any measures other than upload filters to effectively comply with the best efforts obligation contained in paragraphs (4)(b) and (c). Despite repeated questions from the bench, none of the parties could name alternatives to the use of filtering technologies. The Commission made a weak attempt to list a number of different methods for filtering (fingerprints, hashes, metadata, keywords), the Council invoked artificial intelligence (without providing any specifics) and Spain pointed to “fuzzy hashing”. In the end, none of the interventions managed to undermine the Polish claim that (at least given the current state of technology) the only effective way to comply with Article 17(4)(b) and (c) is the use of filters. As Poland pointed out in its final statement, the different technological approaches mentioned constitute different types of filtering technology, rather than alternatives to filtering technology.

A final set of questions revolved around the prohibition of general monitoring obligations in Article 15 of the E-Commerce Directive. The Court showed interest in the relationship between the blocking obligation outlined in Article 17(4) and the ban on general monitoring obligations contained in Article 17(8). On this issue, the AG seemed particularly sceptical that Article 17(4)(b) and (c) would not result in general monitoring. At one point he called the European Parliament “naive” for doubting that “major rightholders would submit long lists with 1000s of works to be blocked” as soon as the directive were in effect.

A long winter wait ahead

Based on yesterday’s hearing, it remains plausible that the CJEU might strike down the contested provisions in Article 17. If it does, this would likely be on the grounds that they constitute a general monitoring obligation in violation of the E-Commerce Directive and, consequently, the Charter of Fundamental Rights.

It is also conceivable that the Court could identify minimum criteria for the protection of the fundamental rights of users. While these could fall along the lines of the mechanism put forward by the Commission, this is far from certain at this stage. A decision along those lines could, however, turn elements of the Commission guidance from non-binding recommendations to legal obligations on Member States.

Given that a ruling will not take place until after the implementation deadline for the directive (the AG opinion is due on the 22nd of April 2021 which is only 6 weeks before the implementation date), the Commission will need to publish its guidance before the Court has ruled and Member States will need to make implementation choices without having access to the Court’s judgment.

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The purpose of the refreshed directive is to promote the use of open data and stimulate innovation in products and services in the Digital Single Market. The directive says Member States should approach the re-use of PSI according to the principle of “open by design and by default.”

Communia has been active in the discussion on the legal framework for re-use of public sector information in the EU for many years, producing position papers in 2012, 2014, and 2018, and providing feedback to the recast proposal in July 2018. We’ve supported changes that would expand the scope of the directive, and pushed for increased legal clarity around aspects such as standard open licenses for PSI. The final Directive addresses some of our concerns, but after it is formally approved by the Council of the EU, it will be up to the Member States to implement the recast directive rules into their national laws. Transposition must be completed within two years.

Below we discuss a few pieces of the directive we’ve been following.

Article 8: Standard licenses

Article 8 states, “In Member States where licences are used, Member States shall ensure that standard licences for the re-use of public sector documents, which can be adapted to meet particular licence applications, are available in digital format and can be processed electronically. Member States shall encourage the use of such standard licences.” Standard licenses, as defined in Article 2, means “a set of predefined re-use conditions in a digital format, preferably compatible with standardised public licences available online.”

The nod to standard open licensing is a step in the right direction. The directive says, “Any licences for the re-use of public sector information should in any event place as few restrictions on re-use as possible, for example limiting them to an indication of source.” The Commission should continue to push for liberal open licenses for the sharing of open data and public sector information (as they’ve even done internally with an updated policy for sharing Commission documents), because if Member States remain unclear about which licenses are acceptable for application to PSI, it could create confusion or interoperability problems. The European Commission’s 2014 guidelines provided a decent baseline for Member States, and recommended using Creative Commons 4.0 licenses or the CC0 Public Domain Dedication for the sharing of PSI. Communia urged the Commission to codify these guidelines, and also ensure accurate licensing metadata across PSI and open data portals that reflects those licensing options. The updated PSI Directive reaches for this ideal, but it’ll be up to the Member States to fully implement standardised, permissive open licensing requirements.

Article 9: Practical arrangements

Article 9 discusses practical arrangements such as the development of tools and online portals that make it easier for users to find and re-use open data and PSI. In relation to open licensing, it is important that search tools and repositories properly mark datasets and other documents with the appropriate license metadata, otherwise, users won’t be able to find and know how they can re-use a particular resource. For example, on https://www.europeandataportal.eu/ there are about 50 license options listed, including non-standard licenses, or standard open licenses with different spellings of what appears to be the same license. It will be important for Member State and EU-wide portals to ensure correct implementation of standard open licenses, and provide education to PSI publishers and re-users alike.

Article 10: Research data

Article 10 outlines how publicly funded research data has been included within the scope of the updated directive. It obliges Member States to “support the availability of research data by adopting national policies and relevant actions aiming at making publicly funded research data openly available (‘open access policies’) following the principle of open by default and compatible with FAIR principles.” This is a welcome expansion of the PSI directive and could help ensure — alongside various other EU policies promoting open access to research — improved re-use of publicly funded scientific data. While the provision is right to include important exemptions for personal data protection and security, other considerations such as “intellectual property rights,” “knowledge transfer activities,” and “legitimate commercial interests” will surely prevent at some PSI from being re-used. As described at TechDirt, it could now be “permissible for companies and academics to invoke “confidentiality” and “legitimate commercial interests” as reasons for not releasing publicly-funded data … Clearly, that’s a huge loophole that could easily be abused by organizations to hoard results.”

Article 12: Exclusive arrangements

The 2013 PSI directive update expanded to cover museums, archives, and libraries (including university libraries), and the current recast is claimed to “limit the conclusion of agreements which could lead to exclusive re-use of public sector data by private partners.” However, the rules on exclusive arrangements, particularly as they relate to cultural heritage institutions and the private companies they contract with for activities like digitisation, doesn’t seem to uphold the principle of broad re-use of cultural works considered PSI under the directive. Article 12 states, “where an exclusive right relates to the digitisation of cultural resources, the period of exclusivity shall in general not exceed ten years.” Apparently this exclusive giveaway to restrict re-use “might be necessary in order to give the private partner the possibility to recoup its investment.” The text claims that this window of exclusivity be “as short as possible, in order to respect the principle that public domain material should stay in the public domain once it is digitised.” It’s an insult to the public and our publicly funded cultural heritage institutions that private companies engaged in digitisation should be permitted to control access to re-use of these works for 10 years (or even longer), possibly keeping digitised works that should be in the public domain under private control.

Coda: Database rights

An important clarification in the final directive text is the provision that where databases fall under the scope of the updated PSI Directive, the public sector body responsible for the database may not use the Database Directive to prevent or restrict the reuse of documents. It’s a good (and long overdue) revision.

As we’ve seen, the recast of the PSI Directive takes positive steps to expanding re-use potential for publicly funded open data. But as usual, the devil will be in the details as Member States soon begin to transpose the directive into the national legislation. When they do, they should look for ways to ensure as broad re-use as possible by supporting standard open licenses, building repositories and portals that make it easy for users to find and re-use PSI, and limiting the exploitation of carve-outs by private entities who want to skirt the rules and keep publicly funded open data in the dark.

The post European Parliament Approves Updated Directive on Open Data and Public Sector Information appeared first on COMMUNIA Association.

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

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

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

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

The post The new Copyright Directive is a lost opportunity for Europe appeared first on COMMUNIA Association.