The answer lies not in copyright law but in the Italian cultural heritage code, Article 108 of Legislative Decree no. 42 of 2004 to be precise. This article of administrative law imposes a concession fee for the commercial reproduction of publicly owned works to be paid in advance to the institution delivering the work. Notably, the approach is also different from the concept of the Paying Public Domain or domaine public payant that exists in a number of African and Latin American countries and which taxes all uses of Public Domain works. Under the Italian cultural heritage code, fees need only to be paid for works that are held by Italian cultural heritage institutions and directly to that institution, not to the Italian state.

Cultural heritage laws should promote the public interest

We are aware of similar laws existing in Greece (Article 46 of Law no. 3028/2002 on the Protection of Antiques and Cultural Heritage in General), France (Article L621-42 of Code du Patrimoine) and Portugal (Administrative Order no. 10946/2014 on the Use of Images of Museums, Monuments and other Properties allocated to the Directorate-General for Cultural Heritage). Importantly, administrative law in general and this type of cultural heritage code in particular operate on a different logic than intellectual property law, as Simone Ariprandi explains in greater detail. Administrative law as an area of public law governs relations between legal persons and the state and not relations between private individuals. The intention is thus to promote the public interest and not to protect the private interests of authors.

The problem is that this law does quite the opposite of promoting the public interest by de facto curtailing the Public Domain. The Public Domain is an essential component not just of our copyright system, but essential to our social and economic welfare, as expressed in our Public Domain Manifesto:

[The Public Domain] is the basis of our self-understanding as expressed by our shared knowledge and culture. It is the raw material from which new knowledge is derived and new cultural works are created. The Public Domain acts as a protective mechanism that ensures that this raw material is available at its cost of reproduction — close to zero — and that all members of society can build upon it.

Imposing a fee for the use of certain Public Domain works restricts access to these public goods and thus stifles creativity. COMMUNIA is built on the conviction that the Public Domain must be upheld and guarded against attempts to enclose it from both public and private actors if we want to ensure the widest possible access to culture and knowledge and creativity to thrive.

Users should be trusted

So why do some EU countries exploit the physical ownership of works for which copyright has long expired? There are two main reasons, which from the perspective of national lawmakers might justify this measure. The first one is financial. The second one could be a paternalistic argument to retain some control over the artifacts held by national cultural heritage institutions and shield them against alleged misuse.

The financial argument does not stand up to a simple cost-benefit analysis. Fees collected through this mechanism do more harm than good, and any revenue generated is far outweighed by the heavy cost for members of society who are deprived of their fundamental right to access and enjoy culture, knowledge and information.

The notion that artists like Botticelli et al. and their work require protection from the general public is also easily dispelled. While we understand that masterpieces like the Birth of Venus are closely associated with the Uffizi and representative of Italian culture in general, this does not justify a financial barrier to the reuse of Public Domain works. There is also little evidence for the inappropriate use of Public Domain works, as stated in CC’s “What Are the Barriers to Open Culture?” report. Thus, we do not see a basis for retaining control by pricing out unwanted uses to ensure that no harm is caused to the reputation of the work, the author or the institution itself. We believe to the contrary that in an open society, the public must be trusted and enabled to make uses that are in line with fundamental freedoms, including freedom of expression.

It is unlikely that the Uffizi are worried that the commercial exploitation of the Birth of Venus per se would create a reputational risk, since this contradicts the institution’s own practice of exploiting its works of art for commercial gain. It is of course a question of personal taste whether one likes Gaultier’s printed multicolor tulle lounge pants or not. Yet a quick look at the Uffizi webshop reveals that the institution is by no means shy to market Botticelli’s masterpiece in similar ways. The visitor will find a shopping bag, a spectacle case (including a spectacle cloth), an oven glove and similar artifacts all incorporating Boticelli’s painting in some way or another. To be clear, the Uffizi should use works from their collection as they see fit to generate income. But to claim that museum professionals know better how to place the Birth on an oven glove is dubious at best.

Botticelli created the Birth of Venus during the 1480s — more than 500 years ago — and yet it remains so iconic not in spite of Jean Paul Gaultier, the Simpsons and other commercial creators referencing or incorporating the work but because of them. The transformative use of the Birth — even in a commercial context — doesn’t diminish the work, but keeps it relevant and ensures that it lives on as part of our cultural memory.

In sum, Italy’s cultural heritage code, although promoting important principles such as preservation and protection of heritage, poses a threat to the public domain, to the detriment of creators, reusers and society as a whole. While the best way forward is to remove this provision from the Italian cultural heritage code, there is in the meantime room for agency for cultural heritage institutions. Cultural heritage institutions can better fulfill their mission and still operate within the scope of the law by choosing not to request the payment of a fee by reusers of public domain heritage. The Uffizi should lead by example and withdraw its claim, and celebrate how cultural heritage is continuously being reinvented in new and unexpected ways through free creative expression.

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While at the beginning of the week only three Member States had fully implemented the Directive (the Netherlands, Hungary and Germany), and could therefore be scored on all performance levels, it is already possible to track the level of activity across the board. As more Member States reach the finish line, we will attribute final scores and throw them into the contest. 

The first, second and third places (so far!)

So far, Germany is the front runner: the Federal Ministry of Justice and Consumer Protection held a transparent and inclusive discussion, which lasted for more than a year, and set a high standard for protecting user rights against overblocking. Hungary is in second place, in part due to the bonus point it got for fast-tracking the implementation of the new digital education exception, during the outbreak of COVID-19, having created room for remote teaching while educational institutions were closed. The Netherlands have been the first out of the door, with a draft text ready for an online consultation less than a month after the publication of the Directive, but the Dutch government failed to demonstrate its commitment to protecting user rights in the implementation, pushing it to the third place so far (with the possibility to still earn some extra points, if the Minister of Justice decides to make use of the power that received in the implementation law, to provide further rules for the application of Article 17).

France and Denmark, which have rushed to implement on time only the provisions that strengthen the position of creators and right holders, have been scored for the implementation of Articles 15 and 17, but will only officially enter the contest once they have implemented the remaining parts of the Directive.

Skipping the parliamentary debate

At this point, all Member States (except Portugal) have, in some way or another, initiated the legislative procedure, but some processes have been far from transparent or inclusive. In France and Italy, the Parliament delegated the legislative powers in the government, meaning that those countries will skip a central stage of the democratic process, which is the parliamentary debate and vote over the concrete implementation proposal put forward by the government. In France, where the Ministry of Culture went through the implementation of Articles 15 and 17 without providing any opportunity for stakeholders to share their views and concerns about those provisions, no public consultation is expected for the remaining parts of the Directive. In Italy, the Ministry of Culture is said to be planning to, at least, run a public consultation once its draft decree is finalized.

In Ireland, the Department of Business, Enterprise and Innovation held a series of public pre-draft consultations, each focused on a different part of the Directed and all carefully prepared, but a few days ago announced that the Directive was going to be transposed into Irish law by way of regulations contained in secondary legislation, without submitting the actual draft law to public discussion and without further parliamentary debate.

In Spain, a first round of public pre-draft consultations was organized at the end of 2019, but since then the Ministry of Culture went silent, leaving meeting requests by civil society representatives unanswered, while at the same time meeting with collecting societies and other industry representatives. Most recently, there have been rumours of a Royal Decree that would give the Spanish government the power to also implement the Directive without any further parliamentary deliberation.

Portugal is the slowest country so far (it has not published any draft text and has not even organized a public consultation), and civil society representatives have also been treated less favourably by the Ministry of Culture than representatives of rightholders: the latter have been invited to provide feedback on the implementation and have been granted the opportunity to meet with the Minister of Culture, while meeting requests sent by civil society organisations (including by COMMUNIA) to the Ministry have been left unanswered.

Meaningful consultation procedures: some more, others less

Fortunately, the procedures in that handful of countries seem to be the exception, rather than the rule. The vast majority of Member States attempted to give all stakeholders, and not only a selected few, opportunities to participate in the discussions. Some countries decided to consult stakeholders at the very beginning of the process, before embarking in the drafting process, others kept discussions alive throughout the process, and others yet reserved most time for dialogue after releasing the draft.

Of the 19 Member States that organized pre-consultation processes, 8 held formal consultations, 8 opted for setting up working groups or entering into other forms of dialogue with stakeholders on the provisions of the Directive, and only 3 organized both a consultation and meetings with stakeholders before starting the drafting process. After the release of the draft, 7 countries organized formal consultations, 6 engaged in dialogues with stakeholders, and 2 (Germany and the Netherlands) opted by running formal consultations and engaging also in constructive dialogues with the stakeholders.

So far, Greece, Italy, Finland, Malta, Norway, Portugal, Poland, Spain, Sweden are the only countries that have not publicly released any draft implementation text. France and Denmark have yet to release proposals for the parts of the Directive that have not yet been implemented.

It is safe to say that the Eurovision DSM contest is far from over, and that the results can still change dramatically. We will keep tracking the process and updating not only each country’s scores, but also each country’s page in our implementation tracker, where detailed information and documentation about each process can be found.

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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 . 

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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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While the Dutch government has reacted to criticism from civil society and members of Parliament by fixing some of the most obvious shortcomings of its implementation law, the 2nd chamber of the French Parliament has adopted a law that gives the French government the power to implement Article 17 (and the rest of the provisions of the DSM directive) however it sees fit. 

Netherlands: a course correction

Back in July of 2019, the Netherlands were the first country to propose an implementation law of the DSM directive. Somewhat surprisingly (the Netherlands had been one of the most vocal opponents of Article 17 in the Council) the proposed implementation law did not make any efforts to protect user rights and omitted most of the user rights safeguards contained in the final version of Article 17. After the proposal was sent to Parliament in June this year, together with Bits of Freedom and others we pointed out these shortcomings to the members of the legal affairs committee. Yesterday, in response to questions from members of the legal affairs committee, the government conceded that its original implementation proposal was incomplete and added the missing user rights safeguards to the proposal for an implementation law.

The updated implementation law proposal now includes all elements of Article 17 of the DSM directive. While it is disappointing to see that the Dutch government is sticking closely to the text of the directive (and not following Germany in exploring the flexibility offered by the directive), there is still room for improvement. The implementation proposal contains a clause that would allow the government to issue more detailed rules on the application of the article by means of an administrative order. In its response to the Parliament, the Dutch government has made it clear that it intends to use this clause to implement the Commission’s upcoming guidance on the implementation of Article 17, as long as such guidance will not further limit user’s rights. In this context the Dutch government has also made it clear that it supports core elements of the Commission’s proposed guidance. The Minister of Justice writes:

I follow the European Commission, which, on the basis of the stakeholder consultations carried out so far, is of the opinion that the application of automatic filters should be limited to those cases where there is a likelihood of infringing uploads (‘likely infringing’).

France: soldiering on

As we have reported earlier this week, the French government has made it clear that it is not interested in implementing any additional user rights safeguards. This is reflected in its approach to implementing Article 17 into national law. After having presented an initial proposal for an implementation law in December 2019 – one that also omitted most of the user rights safeguards contained in the final version of Article 17 – the French government changed its approach. In the face of possible delays because of the COVID-19 emergency, the French government added provisions to the law “DDADUE” that would authorise it to implement the provisions of the new copyright directive by decree (and without further parliamentary discussion). This so-called “DDADUE” law was approved by the Senate in July of this year and yesterday the Assemblee Nationale approved it as well. Once signed into law by the President, the government will have six months to implement the provisions of Article 17 into the French intellectual property law. 

In theory, the French government could use this time to wait for the Commission’s guidance and to add the missing user rights safeguards, but given the French government’s strong alignment with the position of rightholders and commitment to a rapid implementation, it seems more likely that it will go ahead and implement the law as soon as possible, without any substantial changes from the version presented in December. Given that the resulting law will likely lack important user rights safeguards contained in Article 17, the legality of such a rushed implementation of Article 17 remains highly questionable. 

And while France will likely be the Member State which can make the (dubious) claim to fame of being the first Member States to implement Article 17, the rest of the Member States would be much better advised not to look at France for guidance. The one thing that all of them should learn from these concurrent implementation efforts is that Parliamentary scrutiny contributes to better legislative outcomes. While the Dutch Parliament asserted its right in order to fix obvious flaws in the government’s proposal, the French Parliament has passed on this opportunity, severely undermining the legitimacy of the French implementation.

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Unfortunately, it is also based on a flawed understanding of the issue at hand. Since the French authorities note in their reaction that they “will carefully consider stakeholders’ responses and are open to continued discussions so that future guidance may play their concrete technical role with regards to the correct application of article 17”, it is necessary to clear up some of the misunderstandings here.

Misrepresenting Article 17

The constant references, on the side of rightholders and from the French government, to the “original objective”, “goal” or “spirit” of the directive try to mask the fact that the actual text of the directive is not as clear-cut as rightsholders and the French government would like it to be. The fact is that, in between its introduction (as Article 13) in 2016 and its adoption (as Article 17) in 2019, the provisions dealing with the “Use of protected content by online content-sharing service providers” have undergone substantial changes. 

What was proposed as a relatively simple intervention to strengthen the position of rightholders vis-à-vis content sharing platforms by changing the liability position of said platforms, has – following intense criticism from academia, civil society and internet users – been transformed into a convoluted legal regime that serves a number of conflicting objectives. Article 17 now includes strong language that establishes new user rights and provides meaningful safeguards for preserving these rights. These additions to the article were essential in securing its adoption by the EU legislator. As a result, in the final version of the article, the original objective of strengthening the position of rightholders is just one of a number of objectives. 

By now it seems clear that in their fierce determination to get the new copyright directive adopted, many of the supporters of the original proposal have failed to notice that the final legislative compromise had morphed into an article that is fundamentally different from what was originally proposed. In supporting the final compromise of Article 17, rightholders and the French government have in fact supported provisions that go against their long established positions. 

The above-mentioned references to the original intent and spirit of the article constitute a fairly transparent attempt to deflect attention away from those parts of the Article that are not aligned with the rightholder agenda. When it comes to the implementation of Article 17, Member States must respect the outcome of the democratic process and implement what Article 17 says and not what rightholders originally wanted Article 13 to say.

To place it back in the context of the stakeholder consultation, it is not the Commission’s job to issue guidance that preserves an imagined “spirit” or “original purpose” of the article. Instead the job of the Commission is to issue guidance that gives practical application to the actual text of the directive as adopted by the EU legislator (including all its internal contradictions). 

And that is what the Commission, to the chagrin of the rightholders and the French government, has been doing so far.

So what does that mean in practice? The flaws of the arguments brought forward by rightholders and the French government are at full display when it comes to their core concern. Both rightholders and the French Government have expressed grave concerns about the mechanism that the Commission has proposed to reconcile the two most conflicting objectives contained in Article 17: the requirement on platforms to make best efforts to prevent the availability of works that rightsholders have requested to be blocked as contained in art 17(4)(b) and the requirement that any measures employed to do so “do not result in the prevention of the availability of works uploaded by users, which do not infringe copyright” as contained in art 17(7). 

Both the French government and the rightholders argue that it would be sufficient to provide users with a complaint and redress mechanism so that they can complain about unjustified removals after they have happened. This position is perfectly consistent with the original intent of Article 13 (which contained a passage requiring platforms to “put in place complaints and redress mechanisms that are available to users in case of disputes”) but does not reflect the legislative reality established by Article 17 which contains the additional requirement that…

… the cooperation between online content-sharing service providers and rightholders shall not result in the prevention of the availability of works […] uploaded by users, which do not infringe copyright […], including where such works or other subject matter are covered by an exception or limitation.

This is one of the core concessions to user rights that we have fought for during the legislative process and without which Article 17 would not have been adopted. As such it cannot be ignored, regardless of whether it was part of the Commission’s original objective when it first proposed Article 13.

The very purpose of the stakeholder dialogue and the guidance to be issued by the Commission is to remove the conflicts between the diverging objectives that have made it into the final version of Article 17. In this context, the French Government is right to note that that process is not one of “legal interpretation of the directive” but that it should be of “an essentially technical and operational nature”.

Misrepresenting the Commission’s proposal

Unfortunately, the French government fails to recognise that the Commission has done exactly that. At the core of its complaint is a factual misrepresentation of the mechanism presented by the Commission. In line with the rightholders, the criticism is directed at the proposal made by the Commission that platforms should only be allowed to automatically remove works if the use of these works is “likely infringing”. While we agree that the term needs more definition, the underlying idea that automated filters cannot be used in situations where there is a likelihood that the use is legitimate is sound. 

In its attempt to discredit the proposal, the French government misrepresents the Commission’s proposal, by stating that:

An interpretation imposing continued online availability of certain contents, without the consent of the copyright holder, because they are perceived by the users or the services as “likely to be legitimate” due to being potentially covered by an exception introduces a reversal which has no basis in the text.

At no place in its consultation document does the Commission propose to make the determination of whether an upload is likely to be legitimate dependent on the perception of the user. What the Commission is proposing is that this determination is made based on technical parameters such as the length of the matched content. If, based on the technical parameters uploads are identified as likely infringing, platforms would have to block them. Only “(i)n cases when it is not possible for online content-sharing service providers to determine on a reasonable basis whether an upload is likely to be infringing” would platforms be required to give the uploader the ability to contest the potentially infringing nature of the upload. And only if the uploader contests the infringing nature of the upload is the platform required not to block the upload and to initiate a human review process to determine if it can be removed or not.  

The French response further misrepresents the Commission’s proposal by confusing the notion of “technical parameters” with the “relevant and necessary information” and the copyright status of individual works with the infringing or legitimate nature of a concrete use: 

The instructions provided by rightsholders as part of the “relevant and necessary information” would be purely and simply cancelled and replaced by “technical parameters” on the basis of which the likely infringing or legitimate nature of an item of content would be presumed

The use of “technical parameters” as proposed by the Commission does not replace the “relevant and necessary information” provided by rightgolders. The purpose of this information is to allow platforms to identify the presence of notified works in user uploads. In this first step works are identified and associated with a request by its rightholder to prevent the availability. Once such a match has been made the “technical parameters” would be used to determine if the concrete use of the work in an upload is likely infringing or likely legitimate. As such these two concepts fulfil two entirely different functions. 

Misrepresenting copyright law

It is worth noting here that the French government also falsely claims that under copyright law an item could be legitimate or infringing. While uses of certain types of works (works that are in the Public Domain) are always legitimate, for works that are protected by copyright, each individual use of a work must be considered in order to determine if it is legitimate or not. As the stakeholder dialogue has established (and as the French government has itself conceded in its study on the capabilities of automated filtering tools), automated tools are not able to make this type of distinction because they do not understand the context of a use.

The fact that, in order to reject the Commission’s proposals, the French government finds it necessary to misrepresent core concepts of copyright law is a telling sign that its position lacks merit and should be discarded. 

While not without flaws (as we have explained in our own submission to the consultation), the Commission’s proposal reflects an honest effort to reconcile the diverging objectives contained in the version of Article 17 adopted by the EU legislator through a highly contested legislative process. It remains to be seen if the Commission will have the wherewithal to resist attempts by rightsholders and the French government to pressure it into overthrowing the outcome of the democratic process based on “original ideas” that failed to gain a majority.

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Note (02-10-2020 – 1909CET): We have made a small correction to the first quote from the French proposal above. The original quote was taken from the courtesy translation which does not adequately reflect the text of the French original.

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As you know, many countries are now speeding up with the process of implementation of the Directive – you can find below a short summary of what’s going on.

EU implementation – country updates from last weeks

GERMANY

Germany’s Ministry of Justice unveiled its proposal to implement Article 17 of the new Copyright Directive. The discussion draft sets an example for the other Member States on how to make the user rights safeguards in Article 17 operative, and we strongly suggest that you look into the detailed analysis that we published in our blog. This is what is being proposed, in sum:

• Making it easier for platforms to comply with the “best efforts” obligation to obtain authorization to publish their users’ uploads;
• Introducing a new exception covering minor uses of copyrighted content, which works as a fallback mechanism in the absence of authorization;
• Allowing users to override blocking/removal actions, by pre-flagging lawful uses;
• Allowing lawful content to stay up until human review and pausing the liability of platforms until a decision has been made;
• Sanctioning abusive behavior by platforms, rightholders, and users.

We have organized a webinar on this topic, which you can watch here.

Former MEP Felix Reda has published a two-part comment on this on the Kluwer Copyright Blog, including a discussion of the strengths and fragilities of this proposal, which is the first one to actually attempt to avoid over-blocking of content. (Part 1, Part 2)

FRANCE

At the beginning of July we heard that the French Government would try to pass the implementation of Article 17 via an administrative decree as part of a law that implements various EU directives (Ddadue law), to speed up its adoption (and sidestepping substantial discussion in Parliament). On July 8th the first reading of the Ddadue law took place in the French Senate, and the proposed amendment to grant the Government the power to implement the provisions of the Copyright Directive by way of ordonnance (Amendment 23) was unanimously supported (in the adopted text article 24bs is the one authorizing the French Government to implement the Copyright Directive). The executive orders to transpose Articles 2 to 6 and 17 to 23 of the Copyright Directive will have to be issued within six months of the adoption of the law, and the executive orders for the remaining provision have to be issued within 12 months. The National Assembly still needs to approve the Ddadue law. The law was forwarded to the Assemblee Nationale for adoption. 

HUNGARY

In Hungary, the COVID-19 situation was used as a justification to also speed up the implementation of parts of the Copyright Directive. In this case, the provision that was implemented via an administrative decree was the education exception in Article 5. The modifications to the existing Hungarian education exception were introduced via the emergency decree dated as of April 16th and were signed into permanent law as part of a larger bill that converts a large number of emergency decrees into permanent law (the articles dealing with the changes to the Copyright Act are §311-315). The new exception allows for the reproduction, distribution, on-the-spot presentation/performance, communication to the public and adaptation of protected subject matters for the purposes of digital and distant education. The Act only requires prior authorization if the adapted work is used for purposes other than digital or distant education. You can find a comment by Paul Keller here.

Besides this, last month the Hungarian Ministry of Justice and the Hungarian Intellectual Property Office (HIPO) published a consultation proposal on the transposition of the entire Copyright Directive into Hungarian law. In our submission to the consultation (Hungarian, English) we pointed out that omitting the implementation of the caricature and parody exceptions fails to properly implement Article 17 of the Copyright Directive.

THE NETHERLANDS

In the Netherlands the proposal for a law implementing the new Copyright Directive has been introduced into Parliament on the 11th of May. While the Netherlands has been one of the steadfast opponents of Article 17 during the discussions at the European level, the national implementation proposal fails to implement key provisions of the Directive that are aimed at protecting users’ rights. It is now up to the Dutch Parliament to amend the law to ensure that it meets the requirements of the Directive and protects freedom of expression from overblocking caused by automated filters.

Together with Bits of Freedom and supported by Vrijschrift.org, Open Nederland and Wikimedia Nederland, we have written a letter to the Members of the Dutch Parliament, providing them with a list of recommendations to improve the implementation of the law.

EU copyright reform – Brussels news

Update on the European Commission’s Guidance on Article 17

The Commission informed the Article 17 Stakeholder Dialogue participants that, as previously announced, they will seek their views on the Commission’s ‘initial thoughts’ for the Article 17 guidance. The Commission is finalizing the consultation document and hopes to share it with the stakeholders before the end of July.

Roadmap on Intellectual Property (IP) Action Plan

The Commission published the roadmap for its ‘Intellectual Property (IP) action plan’. The deadline for providing feedback is 14 August 2020. The IP action plan’s objective is “to ensure that the EU has in place well-calibrated and modern IP policies that contribute to the resilience and competitiveness of the EU’s economy and facilitate the digital and green transition, benefitting the EU society as a whole”.

EC Public Consultation on Digital Access to European Cultural Heritage

The Commission launched a public consultation on digital access to European cultural heritage. The deadline to provide feedback is 14 September 2020. The views gathered will feed into a possible revision of the 2011 Recommendation on digitizing cultural material and digital preservation. The Commission’s aim is to propose a more appropriate policy instrument to support the digital transformation of cultural heritage.

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These first implementation proposals are coming from a main proponent of Article 17 (France) and one of the most vocal opponents (Netherlands), and allow us to get a first impression of how Member States across the EU are likely going to deal with this controversial article. Irrespective of the different positions by France and the Netherlands during the directive negotiations, the implementation proposed by both Member States do not diverge much from each other.

Both the laws stay very close to the text of the directive: The French implementation largely follows the order of the different sections of the directive via two nearly identical articles, one dealing with copyright (L137) and the other dealing with related rights (L219). The Dutch implementation law follows its own structure and introduces 3 articles (29c, 29d and 29e) that deal with copyright and one article (19b) that declares these articles to also apply to neighbouring rights.

Selective implementations

The general approach chosen by both legislators is to transpose the text of Article 17 (paragraphs 1-6 and 8 and the definition of online content-sharing service providers (OCSSP) from article 2(6)) as closely as possible into their national law.

Neither of the legislators transposes paragraph 17(7) (that introduces crucial safeguards protecting uses under exceptions and limitations) and both only transpose parts of paragraph 17(9) (that imposes an obligation on OCSSPs to operate a complaint and redress mechanisms for users in the event of disputes over the takedown and staydown procedures). None of the legislators provide any further guidance on how platforms are supposed to meet the requirement to make “best efforts to obtain authorisation” from rightholders.

There are also a small number of notable deviations from the text of the Article in the Directive:

• The Dutch law includes a clause that allows the legislator to impose additional rules for implementing the article, via an administrative order. This provision seems designed to take into account the outcome of the EU-level stakeholder dialogue and means that it is difficult to fully assess the Dutch implementation at this stage.
• The Dutch law does not transpose the first sentence of paragraph 8 (the provision dealing with general monitoring) while the French law contains a clause that states that OCSSPs “shall act only on the basis of relevant, necessary information or notifications received from rightholders”.
• The French law explicitly includes “indirect commercial advantage” in the definition of OCSSPs (in the directive “indirect” is only mentioned in a recital).
• The French law provides that the Conseil d’Etat can issue a decree on the modalities for defining “large amount of works” in the definition of OCSSPs.
• The French law includes language that implies that OCSSPs also need to obtain authorisation for acts of exploitation other than acts of communication/making available to the public (this would result in a substantial expansion of the scope of the Article).

User rights

As noted above both proposed implementation laws only implement parts of the user rights safeguards contained in paragraphs 17(7) and 17(9) of the directive.

With regards to paragraph 17(7), both proposed laws ignore the first part with states that the collaboration of OCSSPs and rightholders, in line with paragraph 17(4), shall not lead to the prevention of the availability of content that does not infringe copyright. As a result, neither of these laws introduces any requirements on OCSSPs and/or platforms to ensure that non-infringing works are not blocked by overly aggressive upload filters.

None of the implementation laws contain any provisions based on the second part of Art 17(7), which requires that users “are able to rely on” quotation and parody exceptions. While both France and the Netherlands have existing quotation and parody exceptions in their copyright acts, it seems questionable if this also means that platform users can effectively rely on them in all circumstances, since both countries copyright laws allow technological and contractual override of these exceptions.

Both legislators selectively implement elements of Article 17(9). Most notably neither of them transposes the first part of the penultimate paragraph (“This Directive shall in no way affect legitimate uses, such as uses under exceptions or limitations provided for in Union law”) and stick to mechanically implementing the elements of the complaint and redress mechanism contained in the first two paragraphs of 17(9). However, both of them limit the requirement for human review of decisions to disable access to or remove uploaded content to decisions that are challenged by users.

There are also a few relatively small differences between the two implementation laws:

• The Dutch implementation law does not transpose the requirement that rightholders need to “duly justify” their requests (they only have to be heard by the OCSSP). The French implementation law only partially transposes this requirement, since it does not cover initial requests but only subsequent requests to block/remove after a user complaint.
• The French implementation law designates ARCOM (HADOPI successor) as the entity providing the out of court redress mechanism required by paragraph 17(9). The Dutch implementation law requires OCSSPs to make sure that users and rightholders have access to an impartial out of court redress mechanism without specifying an entity.

It is worth noting that this selective approach to implementing the user rights provisions contained in Article 17 has already been rejected by the European Commission. In its answer to a parliamentary question by MEP Marcel Kolaja, the Commission has made it clear that Member States need to impose on OCCSPs the user rights safeguards contained in the directive  as part of their national implementations. The current French and Dutch proposals fail to do this.

Assessing the proposed implementations against COMMUNIA objectives

In October 2019 we formulated five objectives for minimising the harm caused by Article 17. These are:

1. A targeted definition of OCSSPs.
2. Ensuring wide availability of licenses.
3. Removal requests via a centralised public database.
4. Broad spectrum of exceptions and limitations.
5. Strong default protection of user rights.

Both proposed implementations fail to meet most of these objectives:

1. Neither the French or the Dutch definitions of OCSSP further narrow down the type of services that will need to comply with Article 17 of the Directive. Notably they do not make use of the additional criteria contained in recital 62, which clarifies that the aim of the Directive is to target ad-supported engagement-driven service providers that play an important role in the online content market by competing with other services for the same audiences.
2. Neither of the proposed implementation laws include any provisions on the modalities of licensing OCSSPs for the use of works uploaded by their users. In the absence of such provisions, direct licensing and voluntary collective licensing are the only possible options.
3. Neither of the proposed implementation laws include any provisions regarding the modalities that rightholders have to follow for communicating the relevant and necessary information about works that they want to be blocked/filtered to OCSSPs.
4. Both France and the Netherlands already have quotation and parody exceptions in their national acts as required by paragraph 17(7). While the Dutch copyright act also has an incidental inclusion exception, the French act does not have such an exception. In addition both laws likely do not meet the requirements that platform users can effectively rely on these exception in all circumstances as both copyright acts allow technological and contractual override of these exceptions
5. Neither of the proposed implementation laws impose any requirements on OCSSPs to ensure that user rights (uses under exceptions) are not impacted by any preventive measures implemented in line with paragraph 17(4). Neither of the proposed implementation laws afford default protection to uses that are potentially covered by an exception or limitation.

In the case of the Netherlands the above analysis is not final since the ability to provide additional rules via administrative order means that some of the missing aspects could be introduced by the legislator after the implementation law has been adopted.

Conclusion

The Dutch and French implementation law proposals show that national legislators cannot be trusted to implement Article 17 in a balanced way that includes the hard-fought user rights safeguards that are part of the final compromise that was found between the EU legislators after more than two years of bitter discussions.

Under pressure from rightholders, national legislators are focusing their attention on those parts of the Article that require rightholders and platforms to cooperate with each other to either license or filter. Without the user rights safeguards in the latter part of Article 17, such cooperation will undermine users freedom of creative expression. Not implementing the user rights safeguards is a glaring act of disregard of the outcome of the EU legislative process, and will need to be challenged once these legislative proposal reach the national parliaments.

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A new set of documents leaked by Statewatch presents an (un)welcome reminder of of the fact that the idea of upload filters has powerful supporters outside of the music industry and that they wield considerable influence on the discussions in the council. The set of documents consists of a document containing “amendments to recitals 37, 38, 39 and Article 13” proposed by the French, Spanish and Portuguese delegations (dating from 2 october) and a document by the Estonian Council Presidency containing the questions raised to the Member States during 17-18 October meeting of the Council Working Party on Intellectual Property, which echoes the tone set by the amendments proposed by the three member states.

The amendments proposed by France, Spain and Portugal offer the clearest view yet on what the proponents of article 13 want to achieve. In their eyes article 13 is not about vague and ill defined “measures to ensure the functioning of agreements concluded” between rightsholders and online platforms but about creating a complete change of the legal status of open online platforms. The amendments proposed make an attempt to (a) re-define the activities of online platforms as communication to the public undertaken by those platforms and to (b) remove online platforms that allow uploads by their users from the protections afforded to them by the e-commerce directive.

Legal uncertainty exists as regards the conditions under which the provision of access by information society service providers allowing users to upload content can be considered as an act of communication to the public. This affects rightholders’ possibilities to determine whether, and under which conditions, their works and other subject-matter are used as well as their possibilities to get an appropriate remuneration for it. The present directive clarifies the conditions under which such information society service providers can be considered to perform an act of communication to the public and therefore do not fall in the scope of Article 14 of the Directive 2000/31/EC. (recital 37, additions by FR/ES/PT in bold)

While the proposed Copyright in the Digital Single Market directive is seen by most stakeholders as an attempt to adapt the copyright rules to the evolving realities of the digital economy, the French (and their Portuguese and Spanish supporters) are clearly of the opinion that it should be the other way around: according to them the realities of the digital world must be adapted to the principles of copyright orthodoxy (i.e to a legal constructs established in the late 19th century). To make things even worse the underlying justification for this move (the so called value gap) is missing any empirical basis: recent analysis shows that the music industry is actually doing quite well in the digital environment.

In practical terms the changes proposed in the Amendments would significantly change the way online platforms (and as a result pretty much any form of online collaboration) operate. The French proposal privileges the interests of a small class of commercial copyright holders above anybody else: Under the rules proposed, operating open platforms would only be possible with permission from rights holders.

In addition the French proposal reinforces the Commission’s plan to force online platforms to install upload filters that would prevent any uses of copyright protected not explicitly approved by rightsholders:

Member States shall ensure that all information society service providers that store and give access to significant amounts of copyright protected works or other subject-matter uploaded by their users, upon request from rightholders […] take measures to prevent the availability on their services of works or other subject- matter identified by rightholders. (article 13 para 2 as amended by FR/ES/PT)

The insistence of ex-ante filtering of all user uploads stands in clear contrast to the opinion of the council’s own legal service who in response to questions by another set of member states made it clear that it does not believe that ex-ante filtering mechanisms would be in line with the general rules established by the e-commerce directive. Given that the France, Spain and portugal seem to see article 13 as a means to essentially overturn the ecommerce directive for all uses of copyrighted content this is of course not really surprising.

The position advocated by the governments of France, Spain and Portugal re-affirm that there is a lot more at stake with article 13 than a few “measures to ensure the functioning of agreements”. From the start, article 13 has been an attempt by music industry and their allies to overturn the legal basis of an open internet that allows anyone to express themselves without the need for traditional intermediaries. Article 13 is an attempt to get the genie back into the bottle and to re-establish the control that the traditional intermediaries had over how we can access and interact with culture. In the light of the position taken by France, Spain and Portugal this remains a real danger and we must do everything we can to prevent that from happening

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Ancillary copyright for press publishers – to be or not to be?

On the issue of new rights for press publishers the Estonian compromise proposal does not really present a compromise. The two versions mark different sides of the spectrum. On the one hand a version that would enact a massive expansion of the rights of publishers that goes well beyond the Commission’s proposal that dealt with rights in digital uses of press publication only. On the other hand, we have a version that does not create new rights while still giving publishers tools to act against infringement.

The first option (which can probably be attributed to France) expands the original bad European Commission’s proposal if it comes to the scope of the ancillary copyright from digital publications to publications published in any media, including on paper (in the proposal the article would also apply to videos and photos). What is even worse, hyperlinking is explicitly included in the scope, as long as such links constitute a communication to the public (in the absence of clear guidance this would open a whole new can of worms). This version would be a clear win for big publishers, and a major restraint for free flaw of information online.

The second option seems inspired by the language found in the draft report of the JURI Committee that was proposed by the former Rapporteur MEP Comodini Cachia and aims at creating a presumption for publishers of press publications to facilitate the enforcement of their rights before courts, in case of copyright infringement.

This is broadly in line with what we and many others had proposed as a solution of the enforcement problems of press publishers: instead of granting them (expansive) new rights, the publishers’ ability to act against infringing uses of works published by them, should be strengthened. The second option chooses this approach and more importantly also provides that the presumption shall not affect any rights provided for in Union law to authors and other rights holders, in respect of the works and other subject matter incorporated in a press publication.

The upload filter: winter is coming

With regards to the upload filter the Estonian compromise proposal again presents two versions. Unfortunately, this does not include anything that would defuse the censorship filter proposed in article 13. Both versions require services that store and give access to content to take measures such as implementing effective technologies to prevent the appearance of rights holders’ content, which is clearly against safe harbour provisions provided in the e-Commerce directive, which so far was the base of intermediary liability regime.

If these proposals really reflect a shared position among the member states, this would indicate a troubling willingness to alter the whole liability system for online platforms through the DSM directive which would be bad legislative practice. What is more, it might seem that the compromised proposal tries to clarify some issues, as the scope of the obligation or entities obliged to follow art. 13, but at the end it only ends up being less understable than the Commission’s proposal – one can simply repair something broken from the very beginning.

The general principle of new regulation is the same (broken and misguided) as the one proposed by the European Commision – private entities shall be forced to monitor content uploaded by users to secure copyright. The proposed text does not solve any questions raised by the whole idea of content filtering. Instead, it adds a provision that the question which information society service providers are affected by the filtering obligation must be assessed “on a case by case basis by the courts”.

And while the reference to “content recognition technologies” is removed, online platforms would still be forced to prevent the availability of copyright infringement content, which in practice means blocking before content is visible on a website. In the light of this provisions the assurance that the measures taken must respect fundamental freedoms of their users, and be without prejudice to the application of the exceptions and limitations to copyright does not seem to be very convincing.

The second option makes the whole mess even worse, by introducing a definition of act of communication to the public that includes both online hosting platforms that ‘optimise’ uploaded content and use of such content. This must be understood as an attempt.  to make all open platforms that allow users to upload content and their users liable for copyright infringement. Such a move would have massive chilling effects on the Internet as it exists today and on freedom of expression online.

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