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

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

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

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

A Particular balance

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

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

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

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

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

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

A clear win for large platforms?

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

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

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

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

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

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

The post Finnish Article 17 implementation proposal prohibits the use of automated upload filters appeared first on COMMUNIA Association.

What is important, the copyright exceptions do not break creative markets and don’t put creators out of business. On the contrary – which poet wouldn’t want her poems to be translated in class? Which architect wouldn’t want his building to become a landmark everybody recognizes? Such a massive spread of cultural tropes is possible through the exceptions we have presented: freedom of panorama in Portugal, parody in France, education in Estonia and quotation in Finland.

Download the Best Case Scenarios #fixcopyright poster

So what are the mechanisms and tricks that make exceptions great? Any copyright exception needs to balance legitimate interests of both the users and the rights holders. When that balance is achieved we can have more than 4 best case scenarios for copyright.

We have identified 6 magic ingredients that make copyright exceptions and limitations great. Here is how to mix them to #fixcopyright:

1. Balance copyright with the public interest

All copyright exceptions we featured have one crucial thing in common – they always negotiate the exclusive rights against an important public interest. Literally each use can strike that balance differently and no regulation can envision all life situations.

Freedom of expression includes quoting, documenting or criticizing somebody else’s work. Securing access to modern education is so important for societies that it is fundamental to use all sorts of copyrighted materials in class instruction, lectures, tests, research, etc. Public interest justifies the limitation of rights holders’ prerogatives. A good exception is grounded in a right that is a fundament of a free, democratic society.

2. Open up to all sorts of use

In our fast-changing world, devising regulation that works only for a certain type of use is pointless. We see that with copyright everyday: provisions that had worked when music was distributed on CDs are dysfunctional in the age of internet.

So if you want an exception to work, do not write it for today’s technology – use broad terms that let people reproduce, distribute, communicate and make works available to the public, as well as  transform or adapt in any way they see fit and by any means technology allows them to.

3. Include all kinds of users

In today’s culture it is hard to say who is a creator and who isn’t. The teaching process takes place in a classroom but it also includes online instruction, non-formal settings and peer-to-peer learning. These conditions are constantly evolving and new settings for creation and teaching become widely recognized.

So if you want your copyright limitation to be truly great, consider that the circle of users who can benefit from it is not limited to labels such as “photographer”, “teacher”, “blogger” or “educational institution”. Do not limit access to specific groups of people.

4. If you have to limit, focus on the purpose

Some exceptions are limited in their purpose, just like the Estonian educational exception. It is broad and includes virtually everybody so if there was no limitation on it, it would effectively erase the use of copyright.

If there’s a must, the clever way to calibrate an exception is to focus on its purpose – in Estonia the broad educational use is only possible if it illustrates teaching and the process of learning in general. Any use that cannot be justified by the purpose is not considered to be exempted.

5. Consider benefits of commercial use

Users can benefit commercially from a parody in France or from a movie shot in a public space in Portugal. Consider that today it is very hard to determine if the use is commercial or not. If people post their pictures or memes on social media, would it be recognized as a commercial use? After all, Facebook is a commercial entity that monetizes the activity of its users.

An excellent regulation is a result of a cost and feasibility analysis. Would it be at all possible to enforce the non-commercial prohibition? Or would the cost and futility of it prevail over the benefits? If the answer to the latter is yes, allow use with a commercial benefit.

6. Make the use free of charge

The point of a copyright limitation is to make it simple, if not intuitive, for users to benefit from its existence. This would not be the case if a user had to pay for quoting a book or taking a picture of beautiful surroundings. In fact, if you have to pay, you can hardly call it an exception.

Copyright should enable rights holders to profit from creations. A copyright limitation is an exceptional case, where both the significance of public interest and the intuitiveness of use limit the copyright. Society benefits from it and the culture is richer. Make the use free.

You’ve now mixed all the ingredients, so make exceptions mandatory across EU!

The more flexibility EU allows in transposing its regulation, the more the legal systems in member states vary. Harmonizing the copyright in general and the exceptions in particular is crucial if we want to turn the Digital Single Market into something more substantial than a catchy phrase.

In Europe we have no internal borders anymore, but there are borders in the European internet and between member states’ copyright systems. These should be brought down, and the EU is in a unique position to do it.

Exceptions are a right and not a favour!

The good news is that we have many great copyright exceptions ready in the InfoSoc directive and waiting to be marked as mandatory across Europe. The hard work is done, EU, you can #fixcopyright with one simple provision and make Europe a better place!

• Download the Best Case Scenarios #fixcopyright poster
• Download the Best case scenarios for copyright – full brochure
• Read more at https://communia-association.org/bcs-copyright
• Talk to us: @communia_eu @tenobre @a2na

Best Case Scenarios for Copyright is an initiative by COMMUNIA, presenting best examples of copyright exceptions and limitations found in national laws of member states of the European Union. We believe that, by harmonizing copyright exceptions and limitations across Europe, using as a model these best examples that are permitted within the EU law, the EU would reinforce users’ rights in access to culture and education.

The post How to #fixcopyright with a great copyright limitation? A recipe for lawmakers appeared first on COMMUNIA Association.

Within the Best Case Scenarios for Copyright series, we present Finland as the best example for quotations. Below you can find the basic facts and for more evidence check the Best Case Scenario for Copyright – Quotations in Finland legal study. EU, it’s time to #fixcopyright!

Exception/Limitation: Quotations

Country:  Finland

What is a quotation exception?

1. A quotation exception to copyright refers to citations or other uses of protected works as a way to support intellectual creation.
2. The exception is justified by the freedom of intellectual creation.

How does it work?

1. A quoted work may be incorporated in a play, in a book, in audiovisual materials, etc. “Mere” quotations that do not result in a new work are also covered.
2. The exception covers all acts of use (reproductions, making available to the public, translations, etc.) and it’s technologically neutral, which means that quotations can be made in digital formats and in online contexts.
3. All types of copyrighted materials (including images, films, phonograms and broadcasts) can be quoted. Only works that have been made public with an author’s permission can be quoted, but it is irrelevant if the copy of the work used for the quotation is a legal source or not.
4. The extent of a quote depends on the type of work being quoted and on the context of use. A quotation of an entire work, such as a photograph, may be permitted.
5. Authors of works that include quotations are free to benefit from it commercially as long as it is in accordance with proper usage (see point 4 in “limits” below).
6. Users must mention the source of the quote and the author’s name.

Who can use it?

Anyone can benefit from the quotation exception including citizens, individual artists, organizations, and companies.

Is it free?

Yes, it is free. No remuneration is due to the authors or rights holders of the quoted work.

What are the limits to the quotation exception?

1. Only necessary changes – a quoted work may be translated or otherwise adapted but the changes must be limited to what is necessary for the quotation.
2. Clear identification of a quote  – quotes need to be clearly marked so that they are not confused with the work in which they are incorporated.
3. The proper usage – it refers to general ethical standards and is somehow similar to the idea of ‘fair practice” found in the Berne Convention and in the InfoSoc Directive. For instance, works made entirely from citations or that use citations only to be more appealing are not exempted.

Economic and societal impact

Culture lives when people reflect on it and find new interpretations of sentences, images and performances by weaving parts of these works into their new creations. Science can only advance when it is based on evidence and quotes substantiate insights and theories that create new knowledge. The right to quote is a foundation of art, science, and – as a result – our civilisation.

Examples of use

1. A highschool teacher created learning materials analysing the life of the Finnish singer Juice Leskinen that included quotations of his lyrics. These materials are available online as open educational resources.
2. A university prepared e-learning materials that instruct on various musical styles and artists by using quotes of musical notes and fragments of music recordings.

Law

• Section 22 of the Finnish Copyright Act (Tekijänoikeuslaki), approved by 8.7.1961/404, amendments up to (155/2016) included
• The wording resembles more art. 10(1) of the Berne Convention than art. 5(3)(d) of the InfoSoc Directive
• First introduced in 1961

Why we chose the Finnish example?

All member states exempt quotations, but several national legal provisions have some sort of a drawback. For example, some legal provisions specify the kinds of works that can be quoted, this way excluding the quotations of audiovisual works, others do not allow the quotation of entire works. Sometimes the context of a quotation is specified or the wording used is not technologically neutral.

In Finland, similarly to the other Nordic countries, the quotation exception is presented as a “relatively open rule of reason”. The Nordic quotation exception is a norm that is flexible and open. It permits a relatively broad spectrum of unauthorized uses that exceed the traditional connotation of citation.

Further reference

For details on how the quotation exception functions in Finland please see the Best Case Scenario for Copyright – Quotations in Finland analysis prepared by Teresa Nobre, LL.M. IP (MIPLC), based on research by Maria Elisabeth Rehbinder, LL.M., on behalf of the Communia Association.

• Download the Quotations in Finland Factsheet
• Download the Best Case Scenario for Copyright – Quotations in Finland
• Download the Best case scenarios for copyright – full brochure

Read more at https://communia-association.org/bcs-copyright

Talk to us: @communia_eu @tenobre @a2na

Best Case Scenarios for Copyright is an initiative by COMMUNIA, presenting best examples of copyright exceptions and limitations found in national laws of member states of the European Union. We believe that, by harmonizing copyright exceptions and limitations across Europe, using as a model these best examples that are permitted within the EU law, the EU would reinforce users’ rights in access to culture and education.

The post The right to think is the right to quote – #fixcopyright with wide quotations exception! appeared first on COMMUNIA Association.