Participate in our virtual COMMUNIA salon on 12th of December, from 1500h to 1630 CET, to find out, and discuss the implementation of the DSM Directive in (almost) all EU Member States with our panel of experts.

Joining us for the ceremony will be Christina Angelopoulos, Felix Reda, Paul Keller and Teresa Nobre who will share their views and present their research on the implementation process across the EU.

If you want to find out our implementation rankings and see whether any Member State has received the coveted “douze points” or if you just need an excuse to get in the Eurovision mood before May 2024, register now and we will send you a Zoom link for the event.

Disclaimer: Clicking on this link will direct you to a Google Form and may lead to data being collected by and shared with third parties. Proceed only if you agree.

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

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

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

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

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

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

On the 28th of April, from 1500h to 1630 CET, we are hosting a virtual COMMUNIA salon to discuss the implications of this highly anticipated judgement and what it means for the national implementations of Article 17.

The Court’s judgement in case C-401/19 will mark an important moment in the discussions about Article 17. Not only will the Court have to decide if (elements of) Article 17 violate fundamental rights, it will also have the opportunity to issue guidance on the different approaches to implementing the provisions of Article 17, which have been taken by those member states that have implemented the article so far (and more clarity for those that have not implemented yet). Finally, the decision should also provide more clarity on the European Commission’s implementation guidance that was issued in June of last year, following an extensive stakeholder dialogue.

A recap of the arguments brought forward by the parties to the case can be found in our report from the hearing, which took place in November 2020. And our summary of the most important aspects of the AG Opinion from last July can be found here.

For this Salon we will be joined by Marco Giorello — Head of the European Commission’s Copyright Unit at DG CONNECT, João Pedro Quintais — Assistant Professor at the Institute for Information Law (IViR), University of Amsterdam, Eliška Pírková — Global Freedom of Expression Lead at Access Now — and Felix Reda — former MEP and project lead Control © at the Gesellschaft für Freiheitsrechte. The Salon will be moderated by Paul Keller and there will be lots of room for audience participation.

The Salon will be hosted in Zoom and it is open for everyone to attend. To join us, please register here and we will send you login details on the morning of the event.

The post COMMUNIA Salon on the CJEU decision on Article 17 and the future of upload filters in the EU appeared first on COMMUNIA Association.

Moderated by Paul Keller, the Salon started with Krzysztof Nichczynski (DG Connect, European Commission), who shared insights into the Commission’s thinking on the Sui Generis Database Right and on how it relates to the policy objectives related to increasing access to IoT data and Business to Government data sharing in the Public Interest. This was followed by a presentation by Martin Husovec (Assistant Professor of Law at LSE), who raised a number of concerns about the Commission’s approach and pointed out that there is a need for a more holistic approach to the Sui Generis Database Right. 

After this Felix Reda (former MEP & Project Lead control © at GFF) shed some light on the problematic nature of the Sui Generis Database Right by highlighting ongoing legal actions against open data activists in Germany that are facing civil and criminal liability for allegedly infringing the SGDR covering publicly produced geo-information. In the final Intervention Teresa Nobre (COMMUNIA) expressed our disappointment that the Commission has not conducted a more substantial review of the Database Directive and re-iterated COMMUNIA’s position: that the Sui Generis Database right should be repealed.

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

The post Video recording of the COMMUNIA Salon on the Sui Generis Database Right in the Data Act appeared first on COMMUNIA Association.

Moderated by Teresa Nobre, the salon started with Paul Keller (COMMUNIA/Open Future) assessing the opinion in the context of the Commission’s stakeholder dialogue and the ongoing national implementations (from min. 03:11 to min. 12:35 in the recording). While the opinion doesn’t provide for Article 17’s annulment, it provides important clarifications on users rights safeguards against automated, preventive content blocking systems adopted by sharing services providers.

Then Martin Husovec (London School of Economics) took a closer look at the overall strategy of the AG’s opinion while dwelling on its weaknesses and strengths (from min. 14:53 to min. 25.50 in the recordings). He focused on what he described as “AG Øe’s re-interpretation of Article 17” and further analysed the safeguard mechanisms provided in the opinion. 

The final presentation came from Felix Reda (GFF) (from min. 27:50 to min. 40:00 in the recordings) who expressed her disappointment to the fact that AG Øe did not recommend the to reject Article 17. She went on to  identify  a number of  inconsistencies in the parts of the opinion that attempt to reconcile the use of upload filters with the ban on general monitoring obligations. .

The discussion was followed by a Q&A session with the participants (from min. 42:20 onwards).

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His Opinion finds that Article 17 is compatible with the freedom of expression and information guaranteed in Article 11 of the Charter of Fundamental Rights of the European Union and consequently advises the Court to reject the annulment request. While the annulment of problematic provisions would be preferable, the opinion provides important clarification on user rights safeguards.

For this edition Paul Keller (COMMUNIA/Open Future) will be joined by Felix Reda (Project Lead © Control at GFF and former MEP) and Martin Husovec (Assistant Professor of Law at LSE) to discuss the AG Opinion’s implications on the implementation of the CDSM directive across Europe. The Salon will be moderated by Teresa Nobre (COMMUNIA).

As always, the COMMUNIA Salon is open for everyone to attend and will be held on Zoom. You are welcome to join us by registering here. You will receive your login details ahead of the Salon.

The post COMMUNIA SALON 4/2021: Article 17: Unpacking the AG Opinion in case C-401/19 appeared first on COMMUNIA Association.

The Salon kicked off with Teresa Nobre and Dimitar Dimitrov presenting our ongoing work supporting user rights’ advocates across the EU Member States to ensure a user rights’ friendly implementation of the Directive into national legislations (from 1:11 to 18:13 in the video recording). This was followed by the launch of the Eurovision DSM Contest, a new website which tracks the implementation progress for each Member State. 

The second part of the event (from 20:00 in the recording onwards) consisted of a discussion on the Commission’s Article 17 guidance. Paul Keller opened the discussion by noting that, while the guidance establishes important user rights’ safeguards that put into question the implementation approach chosen by Member States – most notably by France and Denmark –, it also contains a massive loophole by allowing rightholders to “earmark” their content as economically valuable.

Felix Reda (GFF) followed up by comparing the guidance to the recently adopted German implementation law. He argued that the German law seemed to be largely in line with the principles established by the guidance and highlighted that the German rules, for certain types of “high-value” content, are highly targeted and limited. In this light, this is much less problematic than the “earmarking” mechanism introduced by the Directive. 

João Quintais (IVIR) focussed his presentation on some of the other aspects of the Directive, such as the nature of the right established by Article 17. He has since also published these observations in a separate post on the Kluwer Copyright Blog. 

Finally, Christophe Geiger (CEIPI) placed the guidance in the context of the pending Polish CJEU challenge of the fundamental rights compliance of Article 17. In his assessment the guidance is insufficient to save the filtering provisions in Article 17 from annulment by the Court.

During the subsequent discussion, Anneli Andresson from the European Commission’s copyright unit came to the defence of the much criticised “earmarking” mechanism contained in the final version of the guidance (from 1:12:45 in the recording onwards). 

According to her, the Commission did not mean the earmarking mechanism to apply to content other than “time sensitive content”. According to her the Commission’s idea for the guidance “was not to extend the system to what is beyond what is not time sensitive” and that the mechanism is “temporary and only applies when the content is time sensitive”. She also pointed to safeguards including the requirement for rightholders to justify earmarking content and that services have the ability to apply safeguards against misuses, which include the possibility for rightholders to suspend the ability to “earmark”.

As welcome as these clarification by the Commission are, it remains to be seen what they are worth. The real test for the Commission’s Guidance will be the Polish challenge of the fundamental rights compliance of the filtering provisions in Article 17, that is currently pending before the CJEU. To get a first glimpse of the CJEU’s thinking on this issue, and if the guidance issued by the Commission does provide meaningful protection for users’ fundamental rights, we will have to wait until the 15th of July when Advocate General Øe will issue his opinion.

The post Video Recording of COMMUNIA Salon on the Article 17 Guidance and the Launch of the Eurovision Implementation Tracker. appeared first on COMMUNIA Association.

We will kick off the event with the Eurovision DSM contest evaluating the implementation progress (or the lack thereof) in the 27 member states. We will hand out awards for the best and worst implementations and will let you know which Member States have managed to implement in time and which ones are still struggling.

After this glamorous introduction we will shine a spotlight at the latest developments related to the implementation of Article 17 of the directive. Felix Reda (Project lead Control © at GFF and former MEP), João Quintais (Institute for Information Law at the University of Amsterdam), Christophe Geiger (Centre for International Intellectual Property Studies – CEIPI, University of Strasbourg) and Paul Keller (Open Future / COMMUNIA) will take a close look at the newly adopted German implementation law with its strong focus on user rights safeguards. They will also examine the final version of the Commission’s implementation guidance which we expect to be published just in time for our Salon. The Salon will be moderated by Teresa Nobre (COMMUNIA). 

As always, the COMMUNIA Salon is open for everyone to attend and will be held on Zoom. Join us on Monday, the 7th of June, at 1530 CEST, by registering here. Registered participants will receive login information ahead of the event.

The post Communia Salon 2021/3: It’s the 7th of June 2021, so why is the internet still here? appeared first on COMMUNIA Association.

One highlight of the presentation was the revelation that the Ministry has also filed an amendment to its own proposal, that expands the transparency provisions contained in the proposal. The proposed amendment would allow access to “data on the use of procedures for the automated and non-automated recognition and blocking of content to authorised parties” for scientific research purposes. In the light of our repeated calls for more transparency when it comes to the use of automated content recognition, this is a small but significant improvement of the proposal. 

The initial presentation was followed by perspectives from Marco Pancini (YouTube), Xavier Blanc (AEPO-ARTIS) and Felix Reda (GFF) who highlighted different aspects of the legislative proposal. Speaking from the perspective of large pan European platforms Marco Pancini expressed concerns about the variation of legislative approaches in the Member States with Germany marking one end of the spectrum. According to him this will lead to fragmentation of the digital single market and create substantial compliance burdens for all types of platforms.

Speaking from the perspective of performers, a group of rightholders that has an interest to see as much use of their works on as many platforms as possible (and does not necessarily benefit from being able to selectively control use of their works), Xavier Blanc called the German proposal “impressive in its ambition” and lauded it as an effort to find a balance between the diverging interests involved in the implementation discussion. He also expressed concerns regarding the practical application of the minor use thresholds contained in the directive. 

Finally, Felix Reda pointed out some of the key shortcomings of the proposal that has been sent to parliament. These include the ridiculously short threshold of 160 characters for minor uses of textual works (the fact that “spaces are not included” according to the Ministry officials does not make this any better, as sometimes the mere title of a work will pass that threshold) and the requirement that uses must consist of less than 50% of an original work to be protected from automated filtering. In the same vein, he pointed out that the proposal in its current form does not offer any possibility to flag contractually allowed uses (such as uses authorised by a Creative Commons license) as legitimate. Felix Reda also pointed out that while the proposal contains sanctions against abuse, it is missing the ability for users to obtain structural remedies. Such remedies are being proposed by the Austrian Government.

The presentation and discussion once more underlined that, while flawed in some aspects, the German implementation proposal gets many things right. As observed by multiple speakers, the key characteristic of the proposal is that it actually tries to identify mechanisms for reconciling the conflicting obligations contained in Article 17 of the directive. As such it sets out a path for how Article 17 should be applied in practice, where other proposals don’t go any further than re-stating the conflicting objectives contained in the directive. As observed by Felix Reda, the proposals also make it clear that, contrary to earlier promises by the German government, upload filters are a fact that users will have to deal with. 

That being said, the questions if the use of automated upload filters is in compliance with fundamental rights will need to be answered by the CJEU, a decision that is expected only after the German proposal is likely to be adopted (late May).

The post Video Recording of COMMUNIA Salon on the German Proposal to Implement Article 17 appeared first on COMMUNIA Association.

For this edition of the COMMUNIA Salon we will be joined by Dr. Martin Bittner und Dr. Thomas Ewert of the German Ministry for Justice and Consumer Protection (BMJV) who will present the implementation proposal. We will have reaction from Felix Reda (Project lead control © at GFF and former MEP), Marco Pancini (Youtube) and (Xavier Blanc (AEPO-ARTIS). The presentations will be followed by an informal question and answer session and concluding remarks by Paul Keller (COMMUNIA/Open Future). The Salon will be moderated by Teresa Nobre. 

The German proposal has been adopted at an interesting time. While the Commission is finalising its implementation guidance, the German proposal shows what the user rights-preserving implementation foreseen by the Commission in its draft guidance could look like in practice. The proposed German implementation of Article 17 contains specific mechanisms designed to ensure that platforms comply with the requirement in Article 17 that legal uploads must not be blocked. While the proposal is not without flaws, it can nevertheless serve as an example for other Member States looking for a way to implement Article 17 in a user rights-preserving way. 

As always, the COMMUNIA Salon is open for everyone to attend and will be held on Zoom. Join us on Wednesday, the 17th of March, at 1530 CET, by registering here. Registered participants will receive login information ahead of the event.

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