Taking place on Monday, September 19th, in Berlin at Robert Bosch Stiftung, Filtered Futures will discuss the consequences of the CJEU ruling on Article 17 of the Copyright Directive for fundamental rights. 

Registration for in-person attendance is now closed. It will be possible to follow the live stream of the conference here.

After the closing of the conference, COMMUNIA will be hosting a networking reception from 17:00 to 19:00.

Programme

08:45-09:15 Door Opening

09:15-09:45 Welcome and Opening Remarks by Susanne Zels (Robert Bosch Stiftung) and Felix Reda (GFF – Society for Civil Rights)

10:00-12:00 Session 1: Fragmentation or Harmonization? The impact of the Judgment on National Implementations – While the CJEU has rejected the Polish challenge to Article 17, the Court has formulated a number of requirements for ensuring that national implementations are fundamental rights compliant. In this light, the opening session of the conference will examine the consequences of the judgment for Member States’ implementations of Article 17. What are the requirements established by the judgment for national legislators? How do the existing national implementations measure up to these requirements? Which implementation strategies are available to those member states that still have to implement the directive? And have platforms already reacted to the existing national implementations?

• Bernd Justin Jütte (​​University College Dublin): Imperatives for implementing Article 17: the importance of national implementations.
• Finn Hümmer (Stockholm University): Implications from C-401/19 for national transpositions under the light of freedom of expression.
• Jasmin Brieske (Goethe University Frankfurt am Main): The impact of the enactment of the German OCSSP Act on selected online platforms.
• Christina Angelopoulos (University of Cambridge): The national implementations of Article 17 of the EU’s CDSM Directive.
• Moderator: Paul Keller (COMMUNIA)

12:00-13:30 Lunch Break

13:30-15:00 Session 2: Balancing Enforcement & Usage Rights in Practice – Protecting legal forms of expression from automated blocking decisions by online platforms is not just a task for the national legislators when transposing Article 17, but also a question of implementation of those provisions by regulators and courts. Who is going to ensure that filtering systems will leave legal uses of copyright-protected works unaffected in practice? How can the balance of competing rights be enforced in cross-border situations? How does the ban on general monitoring obligations as interpreted by the CJEU constrain the content moderation obligations of platforms – in the context of Article 17, but also when applied to other types of illegal content? Will the Digital Services Act improve users’ access to effective remedies against over-blocking?

• Natasha Mangal (University of Strasbourg): Regulating Creativity Online: Proposal for an EU Copyright Institution.
• Daniel Holznagel (academia): Don’t touch the ceiling – Why we should not narrow the EU no-monitoring-obligation-rules.
• Martin Husovec (London School of Economics): Mandatory Filtering Does Not Always Violate Freedom of Expression: Lessons from Poland v Council and European Parliament.
• Moderator: Felix Reda (GFF – Society for Civil Rights)

15:00-15:30 Coffee Break

15:30-17:00 Session 3: Beyond the Judgment: The Future of Freedom of Expression – In its ruling, the CJEU was of the view that the procedural safeguards present in Article 17 protect the ‘essence’ of the right to freedom of expression of the users of online sharing platforms. But many argue that filtering mechanisms can still pose real risks to fundamental freedoms and to the flourishing of parodies, caricatures and pastiche. Is the CJEU classical approach to proportionality balancing apt in a filtered online environment? Do we need a new conceptualisation of the ‘essence’ of fundamental rights? Can the case law from the CJEU and the European Court of Human Rights on freedom of expression offer avenues to better the future of parodic uses? Finally, are we moving towards a European Right to Remix?

• Kevin O’Sullivan (Dublin City University): A new conceptualisation of the ‘essence’ of fundamental rights.
• Sabine Jacques (University of East Anglia, Law School): A two-tier system for freedom of expression.
• Till Kreutzer (iRights.Law): Towards a European Right to Remix (?) – On the new Pastiche exception in the German Copyright Act.
• Moderator: Teresa Nobre (COMMUNIA)

17:00-19:00 Reception hosted by COMMUNIA

*All times are indicated in CEST.

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The CJEU decision on Article 17 of the copyright directive has defined a framework for the use of automated content moderation. The Court considers filtering obligations compatible with the right to freedom of expression and information as long as they are limited to use cases that allow for a robust automated distinction between legal and illegal content. In the context of Article 17, upload filters may therefore only be used by online platforms to block manifest infringements of copyright law. The Court leaves it up to the Member States to ensure that legal uses remain unaffected by their national transpositions of Article 17.

The judgment raises a host of important questions for the enforcement of copyright law as well as for the compatibility of upload filters with fundamental rights even beyond copyright law. To discuss these consequences, COMMUNIA and Gesellschaft für Freiheitsrechte are jointly hosting the Filtered Futures conference on Monday, September 19th, at Robert-Bosch-Stiftung in Berlin. Please see below for the preliminary conference programme. A more detailed version of the programme with session descriptions will follow in early September.

Registrations for attending the conference in person are now open. Please consider that participation is limited. Registrations will be considered on a first come, first serve basis.

CONFERENCE PROGRAMME:

08:45-09:15 Registration

09:15-09:45 Opening remarks (Felix Reda, GFF)

09:45-10:00 Coffee break

10:00-12:00 Session 1: Fragmentation or Harmonization? Impact of the Judgment on National Implementations (Christina Angelopoulous, Jasmin Brieske, Finn Hümmer, Bernd Justin Jütte. Chair: Paul Keller, COMMUNIA)

12:00-13:30 Lunch break

13:30-15:00 Session 2: Balancing Copyright & Usage Rights in Practice (Daniel Holznagel, Martin Husovec, Natasha Mangal. Chair: Felix Reda, GFF)

15:00-15:30 Coffee break

15:30-17:00 Session 3: Beyond filters: Impacts of the Judgment on Freedom of Expression (Sabine Jacques, Till Kreutzer, Kevin O’Sullivan. Chair: Teresa Nobre, COMMUNIA)

17:00-19:00 COMMUNIA Reception

Participation is free of charge and a light lunch will be served.

The post Join us for the Filtered Futures conference on 19 September 2022 appeared first on COMMUNIA Association.

In our paper we defend that, in order to transpose education, research and other public interest activities from public locations to private homes during government-imposed lockdowns, we need to be able to rely on the understanding that fundamental rights can, in exceptional situations, function as an external limit to our national copyright systems.

The main conclusions of our paper are the following:

First Conclusion

The educational and research exceptions and limitations provided for in Article 5(3)(a) of the InfoSoc Directive and in Articles 6(2)(b) and 9(b) of the Database Directive, and the public lending exception provided for in Article 6(1) of the EU Rental and Lending Rights Directive are mandatory for Member States, due to the fundamental rights that they internalize, namely those enshrined in Articles 11(1), 13 and 14(1) of the EU Charter of Fundamental Rights.

Second Conclusion

In Member States that have education, research and public lending exceptions in place that follow closely the wording of the above-mentioned EU exceptions, applying and interpreting those exceptions in the light of the fundamental rights to freedom of information, freedom of science and education that they internalize is the only mechanism needed to safeguard most remote research, education and other public interest activities, during emergencies that fundamentally disrupt the normal organization of society, like the COVID-19 pandemic lockdowns. 

Third Conclusion

In Member States that do not have education, research and public lending exceptions in place that follow closely the wording of the above-mentioned EU exceptions, those activities can only be safeguarded, in the absence of permission from the relevant rightholders, through the direct application of national standards of protection of the fundamental rights to freedom of information, freedom of science and education.

If, due to the absence or insufficiency of legislative action, the national copyright law has no flexibility to temporarily adjust to new modes of living imposed by emergencies such as the COVID-19 pandemic, such law cannot be deemed to have properly internalized the fundamental rights enshrined in the EU Charter of Fundamental Rights. Applying fundamental rights as an external limit to the exclusive rights of authors and rightholders is, thus, the only legal mechanism available to ensure the effectiveness of EU law. In those circumstances, resorting directly to constitutional laws or other rules that protect fundamental rights would not conflict with the CJEU case-law, provided that national courts do not extend the scope of the above-mentioned EU exceptions.

This solution should be a patch, not a fix, to ensure the balance of interests foreseen by EU copyright law.

Fourth Conclusion

A balanced interpretation of the fundamental rights to freedom of information, freedom of science and education, on the one hand, and the exclusive rights of authors and rightholders, on the other, would lead to the conclusion that educational, research and other public interest activities that are equivalent to those conducted on the premises of educational institutions, research organizations and cultural heritage institutions are allowed remotely, at least during the periods when the physical premises of those institutions are forced into closure due to emergencies that fundamentally disrupt the normal organization of society, like the COVID-19 pandemic lockdowns. For example:

1. teachers displaying works and other subject-matter during a streamed or recorded online class accessible only to the school’s students or pupils; 
2. librarians and other facilitators reading aloud entire books to children, and displaying the respective illustrations, during a library’s live streamed story-time session;
3. libraries, archives and other cultural heritage institutions making available, for the purpose of research or private study, to individual members of the public by secured electronic environments copies of works and other subject-matter which are contained in their collections, on the condition that the access occurs on the basis of the one-copy-one-user model; and
4. online lending by libraries, archives and other cultural heritage organizations of digital copies of entire works or other subject-matter obtained from lawful sources, on the condition that the lending occurs on the basis of the one-copy-one-user model.

Recommendations

In order to reassure the community of educators, researchers, librarians and archivists in the EU that they are able to legally perform their activities remotely, if their institutions are forced into closure due to an emergency that fundamentally disrupts the normal organization of society, in our paper we recommend the Commission to issue guidance to clarify that our conclusions are compatible with the CJEU case-law. 

The full policy paper can be viewed online or downloaded here.

The post New policy paper on fundamental rights as a limit to copyright during emergencies appeared first on COMMUNIA Association.

The fundamental rights safeguards crucial for ensuring compliance of the new Directive with the Charter of Fundamental Rights are in accordance with our four principles for minimising harm to users, creators and the internet. The letter signed by 27 fundamental and digital rights organizations raises concerns about the current state of play for Article 13 and calls for:

a) Transparency

Platforms control all information available on the internet and they are empowered to rank and take down content at their discretion. These platforms serve “the internet” as we know it now. Internet platforms are able to make decisions about freedom of expression with no transparency or accountability and the proposed Directive does not change that. In cases where content is blocked or taken down, it is critical that they properly justify their decisions; decisions that should be subject to proper redress mechanisms to ensure free speech and freedom of information. Besides providing an alternative dispute resolution, the EU could provide, for free, legal mechanisms across the EU to settle disputes between users, copyright holders and internet platforms.

b) Avoid automated filtering and blocking of content

We call on EU decision-makers to avoid introducing a mandatory monitoring obligation. Automated filtering software is notoriously inaccurate and is likely to catch lawful materials that do not breach copyright and that are essential for societal and political debate and comment, such as parody or quotation. Finally, a general obligation to monitor everything a user uploads to the internet is likely to cause a chilling effect on free speech, as users will be more likely to self-censor any content that could risk triggering (inaccurate) filtering software.

c) Sanctions

Article 13 covers changing the liability regime. The upshot of this is that platforms will be sanctioned if they let copyrighted content through their system without a licencing agreement. The proposed solution would create an incentive for platforms to be overly cautious and take down anything that presents even the slightest risk of legal exposure for the company. On the other hand, it is important to ensure that there are legal repercussions that disincentive platforms from removing content that does not violate copyright. The EU should create a rebalancing incentive. It is important that both rightsholders and platforms are liable for deleting lawful, user-generated content under the guise of copyright protection. This responsibility will positively change the attitude of the platforms and will also more effectively protect user content.

The post Trilogue: don’t give up on fundamental rights! appeared first on COMMUNIA Association.