Over these three meetings it became increasingly clear that the majority of the invited stakeholders were not interested in working with the Commission on improving cross border access to audiovisual content in the EU. With the exception of the organisations representing users (apart from COMMUNIA these included BEUC and the Federal Union of European Nationalities) and a few dissident voices within the AV sector the representatives of AV rightholders, distributors, producers and creators insisted that the current system of territorial copyright licensing is working well and that it is essential for the financial sustainability of the European audio-visual sector as a whole.

According to them, the fact that this system also leads to widespread geo-blocking and deprives many Europeans of access to cultural works that are often (at least partially) funded with public money does not justify an intervention in the “well-balanced” business models that underpin AV production in Europe. In addition, they argue that it should be up to the market to increase cross-border access to AV works in the EU (while at the same time lobbying for increased EU support for the production and distribution of AV works).

Request for proposals

At the beginning of this year — after having been shown the cold shoulder by the AV sector — the Commission put the stakeholder dialogue on hold to reconsider its approach. Then, in June of this year, the Commission sent out a letter to all participants in the stakeholder dialogue inviting them to:

… submit proposals for concrete actions or roadmap presenting the steps you intend to take in order to contribute to improving the online availability and cross-border access to audiovisual works across the EU. We would welcome your proposals for commitments by Friday 23rd September 2022.

Adding that after assessing the proposals received, the Commission would

… convene a final meeting of the dialogue in the autumn in order to formally adopt them as participants’ commitments.

Last week, in response to this invitation, we submitted a proposal for a fallback TVOD service for publicly funded AV works. Here, we develop the concept for an independent not-for-profit platform that would ensure the availability of AV productions – that have received public funding – in all member states of the European Union. 

The platform that we are proposing would be a Transactional Video on Demand platform (TVOD – industry parlance for a pay per view platform) and as such would be something that can generate extra revenue for the producers of films made available via the platform. It is not a proposal to make these works available for free.

Our proposal focuses on AV productions that have received public funding — which is the vast majority of AV productions made in Europe — because here the moral and cultural imperatives to make them available across all EU member states is the strongest. Implementing this proposal, which in itself accepts the current practice of exclusive territorial licensing, and — ironically — relies on geo-blocking as a mechanism for this, would be an important step towards a future without structural geo-blocking of AV works that are available in the EU.

We are looking forward to discussing our proposal with other stakeholders in the upcoming meeting of the stakeholder dialogue.

The post Our proposal for ending geo-blocking of audiovisual works in the EU appeared first on COMMUNIA Association.

We have accepted this invitation in order to ensure that the perspective of users/consumers seeking access to audiovisual works will be represented in the discussions that should lead to the end of unjustified geo-blocking of audiovisual content in the EU. We have outlined our initial position in the opening statement delivered by Paul Keller during today’s high level round table:

Thank you Commissioner Breton for the invitation and the possibility to present our views in this context. We are a pan European association of organisations advocating for the defence of the public domain and strong user rights protections in the field of copyright.

The question of access to AV content is a highly relevant issue that directly affects the rights of users – in this case probably best described as consumers – in this case the right of access to culture. This right is violated every day when someone in the EU is trying to access AV productions online and is rejected because she is doing so from a territory where the production is artificially prevented from being available for consumption.

This such a situation does not only curtail the right of access to culture, it also damages the relationship between consumers who perceive this discrimination. Consumers perceive the relationship between producers of creative works and consumers as reciprocal: consumers are obliged to pay for the outputs of their creative work and the authors are obliged to enable consumers to access their works. When an industry is structurally failing to meet this reciprocal responsibility by discriminating against users on the basis of their geographical location it loses trust. This is especially problematic (for the whole system) in a field where other (often less legal) ways of acquiring access to the works in question are readily available. Finally this also hurts the creators of AV works with specific / smaller audiences, such as documentary movies. These creators often see the lack of EU-wide accessibility of their works (imposed on them by the funding models dominant in the sector) as limiting their ability to tell their stories (I say that as someone who has two documentary filmmakers in my immediate family and many friends who work in this industry).

So what should be done?

We are not the ones who are best positioned to provide concrete solutions here, although the general outline of a solution is relatively clear.

Initially this means that passive sales across member state borders must be enabled. Consumers must have the right to purchase access to content that is legally available to users in other member states in cases where the same content is not available in their location (or cannot be expected to become available shortly).

At the very minimum – [and as Rosa Thun rightly stressed in her intervention] – this should be the case for all productions that have received funding from public sources at the EU or Member State level. As in many other situations public money must result in public availability. This will also contribute to ambitions to raise the profile of publicly funded content on the internet, which should be an important element of creating a digital public space based on European values (support for a diverse cultural sector being one of them).

Finally (and this seems to be overlooked a lot) There must be better information. Right now it is often not possible for a consumer who is being refused service to easily discern where the work might be available instead (or when it will become available).

To conclude

From our perspective it is clear that this issue must be resolved. In this day and age it is getting harder and harder to explain to a generation raised on Netflix and YouTube why European AV productions on other platforms are not available wherever they are. We cannot expect from consumers that want to access these productions that they immerse themselves into the financing structures of the European AV sector or the nuances of copyright law to understand why this is the case. What this industry needs to figure out is how to ensure that consumer expectations (no matter how insignificant they may be when understood in licensable markets) are met. If this is not the case then we provide an unfair advantage to the big integrated platforms that have financial muscle to circumvent these issues. That will be a big loss for the diversity of the EU Audiovisual sector.

A lot has changed in the past one and a half years. Some of the things that were considered immutable elements of the AV sector have shifted under massive external pressure. Just two years ago no-one here would have predicted that it would be possible for me to watch movie releases via VOD during their initial theatrical release but the outside pressure created by the pandemic has enabled this. I do this via a service called picl.nl in the Netherlands that allows cinemas to make the films they are showing available via paid VOD and where you pay though the local cinema of your choice. This is how I watched most of the movies that I have seen during the pandemic and from a consumers’ perspective this is how things should be. It shows that improving the situation for consumers is possible without damaging other parts of the AV sector value chain.

So things can move under pressure and we hope that this stakeholder dialogue will create the conditions for finding solutions to the problem of unjustified geo-blocking. Such solutions must strengthen the European AV sector by making use of the opportunities that the digital infrastructure offers for better and more fair access to AV works from all member states.

Thank you very much

The post Stakeholder dialogue to improve cross border access to audiovisual content 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).

The post Video Recording of COMMUNIA Salon on 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.

In the final version of the guidance published today, the Commission will require Member States to include ex-ante safeguards for user rights in their national implementation legislation. In doing so, it provides support to the implementation approach taken by Germany (and discussed in Austria and Finland), while making it clear that Member States who have limited themselves to merely re-stating the provisions of the Directive (such as France, The Netherlands and Hungary) will need to include such additional safeguards (more on this below). 

Unfortunately, and confirming the suspicions that we had expressed in our recent open letter, the final version of the guidance walks back the strong commitment to protect users’ fundamental rights that the Commission had shown earlier in the process. As a result of relentless pressure from the entertainment industry, the final version of the guidance contains an “earmarking” mechanism that is designed to allow rightholders to override safeguards against automated blocking of user uploads that are not manifestly infringing, by claiming that a use of their works “could cause significant economic harm”. This provision is ripe for abuse by rightholders and undermines the relatively strong principles for safeguarding users’ fundamental rights, which the guidelines require Member States to include in their national implementations (see our detailed description of how the “earmarking” provision undermines the principles of the guidance here). 

The “earmarking” mechanism was added to the guidance in the last three months, in closed-door deliberations of the Commission and in reaction to massive pressure from rightholders. This back-room dealing of the Commission in the last months stands in stark contrast to the transparent and balanced way in which the Commission had handled the initial stages of the stakeholder process. After a series of public stakeholder dialogue meetings, the Commission had released a remarkably balanced consultation draft of the guidance in July of last year. The Commission then used the principles outlined in the draft to defend the legality of Article 17 before the CJEU, only to agree on a final version that substantially undermines these principles, behind closed doors and without further consultation of the stakeholders involved in the process. 

This conduct abuses the stakeholder process that the Commission was legally required to hold as part of the hard fought-political compromise embodied in Article 17. Where the Commission initially lived up to its role as a neutral steward of the legislative compromise, it has abandoned this role unilaterally, changing the final result based on massive political pressure from rightholders.

This abuse of the stakeholder process could ultimately lead the CJEU to conclude that Article 17 cannot be reconciled with the Charter of Fundamental Rights. It should not go unnoticed that the Commission has clearly failed to live up to its pledge to issue guidance that would effectively safeguards users’ fundamental rights. The CJEU should take note of this reversal of position and take the opportunity to establish effective user rights safeguards for the application of Article 17 (or to yield the Polish request to annul Article 17 altogether). 

We will get a first indication of how the Court perceives the Commission’s last minute reversal of course when the Advocate General issues his opinion in the case on the 15th of July. In any case it is now clear that the AG had very good reasons to postpone his opinion to be able to take the final version of the guidance into account. 

Until this happens, the majority of the EU Member States who have not yet implemented the Directive will likely continue to pause their implementation processes. 

Member States must implement ex-ante safeguards

The guidance, while not legally binding on Member States, nevertheless sets out a number of substantive requirements for Member States to comply with the protection of legitimate uses contained in Article 17(7) of the Directive. 

At the core of the Commission’s guidance is the principle that Member States must ensure that automated blocking of user uploads by platforms will be limited to cases in which the uploads are “manifestly infringing”. Uploads that are not manifestly infringing can only be removed after a human review of the upload by the platforms has taken place. The guidance makes it clear that to comply with this principle Member States cannot rely on an ex-post complaint and redress mechanism only. The guidance states that “it would not be enough for the transposition and application of Article 17(7) to restore legitimate content ex post under Article 17(9), once it has been removed or disabled.” 

Schematic overview of the mechanism proposed in the guidance, with the new earmarking mechanism highlighted in red.

The question if the ex-post complaint and redress mechanism contained in Article 17(9) is sufficient to safeguard users’ rights has been at the core of the implementation discussion. France and other Member States have argued that it is sufficient, while Germany and others maintain that it is not and have added ex-ante safeguards. With the final guidance, the Commission throws its support behind the latter interpretation. To comply with the guidance, those Member States that have implemented the Directive without explicit ex-ante safeguards should now add them. While the Netherlands has included the possibility to include additional safeguards in its implementation legislation, France and Hungary have not foreseen this scenario. The guidance also means that those Member States that have not adopted implementation legislation would be ill advised to limit themselves to restating the provisions of the Directive in their national laws without adding ex-ante safeguards. 

While this clear positioning with regards to the question of ex-ante protections is very much welcome, the last minute addition of a mechanism that allows right-holders to overrule this process at will threatens to make it meaningless once put into practice. As the guidance currently stands, it requires Member States to both implement strong safeguards and to provide rightholders with the means to overrule those safeguards with regards to any content that they consider to be economically important (which can be every notified content, as there are no clear disincentives to abuse the system). The effect of this deeply flawed arrangement is that the responsibility for respecting users’ fundamental rights once more lies in the hands of rightholders. This is exactly the situation that the guidance was supposed to avoid (For a more detailed description of how the “earmarking” provision undermines the principles of the guidance here).

It remains to be hoped that the Commission’s transparent attempt to have it both ways will not pass muster with the CJEU now that it can finally take a closer look at the guidance.

The post Article 17 implementation guidance: Strong user rights safeguards with a giant loophole appeared first on COMMUNIA Association.

In the final guidance, the Commission maintains that it is “not enough for the transposition and application of Article 17(7) to restore legitimate content ex post under Article 17(9), once it has been removed or disabled” and argues that only manifestly infringing content should be blocked automatically, but these “principles” are included in name only. By introducing the ability for rightholders to “earmark” any content that has the potential to ”cause significant economic harm”, the guidance allows rightholders to easily override these principles, whenever they see fit, and to force platforms to automatically block user uploads even if they are not manifestly infringing.

In the remainder of this post we will examine these last minute changes to the guidance in more detail. Before we do that, we will briefly recall the key problem that the guidance was supposed to resolve and the principles that underpinned previous versions of the guidance.

The key problem that the guidance tries to resolve:

To comply with Article 17(4) platforms will need to use automated content recognition technology to filter out uploads containing works that rightholders identified for blocking. To comply with Article 17(7) of the directive platforms have to ensure that uses of works that do not infringe copyright must not be prevented as a result of the cooperation between rightholders and platforms. Automated content recognition technology can reliably tell when a work identified by rightholders is contained in an upload (which makes it very well suited to comply with the requirements contained in 17(4)), but it cannot tell if the individual use is legitimate or not (which makes it unsuited to comply with the requirements of Article 17(7)). 

This means that any use of automated content recognition technology to comply with Article 17(4) will result in overblocking of legitimate uploads, which in turn will result in an infringement of fundamental rights protected by the EU Charter of Fundamental Rights. (This is why the Polish case challenge against Article 17 alleges that the article violates fundamental rights). This mechanism is amplified by the fact that platforms face liability for copyright infringement if they do not comply with their requirements under 17(4), while they do not face comparable risks when they do not comply with their requirements under Article 17(7). For the platforms this results in an incentive to err on the side of removal which results in the blocking of legitimate uploads.

Article 17(10) of the Directive required the Commission to organize a stakeholder dialogues “and taking into account the results of the stakeholder dialogues, issue guidance on the application of this Article, in particular regarding the cooperation referred to in paragraph 4. When discussing best practices, special account shall be taken, among other things, of the need to balance fundamental rights and of the use of exceptions and limitations.” 

Principles for the application of automated content recognition technologies in implementations of article 17

The stakeholder dialogue took place between October 2019 and February 2020. Based on the input received during the stakeholder dialogue, the Commission held a public consultation in the Summer of 2020, where it presented principles that should be addressed by the guidance. These principles showed that the Commission had clearly understood the issues at stake and that it was willing to issue guidance that contained protections for users’ fundamental rights. More specifically the Commission proposed that the guidance should state that: 

• Member States should transpose into their national legislation the mandatory exceptions for quotation, criticism, review and uses for the purpose of caricature, parody or pastiche from the second part of Article 17(7);
• Member States should explicitly transpose into their national legislations the first part of Article 17(7) and that the objective of national implementations “should be to ensure that legitimate content is not blocked when technologies are applied by online content-sharing service providers under Article 17(4) letter (b) and the second part of letter (c)“;
• Therefore it “is is not enough for the transposition and application of Article 17 (7) to only restore legitimate content ex post, once it has been blocked” and that when “service providers apply automated content recognition technologies under Article 17(4) [..] legitimate uses should also be considered at the upload of content“;
• To achieve this objective “in practice, automated blocking of content identified by the rightholders should be limited to likely infringing uploads, whereas content, which is likely to be legitimate, should not be subjected to automated blocking and should be available.“
• When a platform does block likely infringing uploads “users should still be able to contest the blocking under the redress mechanism provided for in Article 17(9)“;
• When a platform matches uploads that are not likely infringing with a work identified by rightholders to be blocked, the platform has to notify the uploader and must give them the ability to contest the infringing nature of the upload. If the uploader contents the infringing nature, the “service providers should submit the upload to human review for a rapid decision as to whether the content should be blocked or be available. Such content should remain online during the human review“.

Taken together, these principles would have constituted a relatively strong set of safeguards against overblocking as a result of the use of automated content recognition. The key element here is the limit of the scope of fully automated blocking to cases of “likely infringing” uploads and to require some form of human intervention in all other cases where use of third party works does not meet the likely infringing threshold. In this aspect, the Commission’s proposal from Summer 2020 echoed the approach that had been proposed by a large group of academics during the initial phases of the stakeholder dialogue in November 2019, which argued for limiting the scope of fully automated filtering to cases of prima facie copyright infringement.

In November 2019, the Commission applied those principles to defend the legality of Article 17 before the CJEU in Case C-401/19 (the Polish government’s challenge to Article 17). Together with the Parliament and the Council, the Commission defended Article 17 against the claim made by the Polish Government that its application would limit users’ fundamental right to freedom of expression and should therefore be annulled. 

In its oral intervention before the CJEU, the Commission argued that Article 17 is compliant with fundamental rights because the requirement not to prevent the availability of non-infringing uploads contained in Article 17(7) is an “obligation of result” and, therefore, takes precedence over the “obligation of best effort” to prevent the availability of works identified by right-holders contained in Article 17(4). The Commission further argued that the upcoming guidance would ensure that this hierarchy of obligations would work in practice. To achieve this, national transpositions would need to limit fully automated blocking to “manifestly infringing” uploads only and would be required to contain ex-ante safeguards for all uploads that do not meet the “manifestly infringing” threshold. 

Undermining the principles by “earmarking” content that “could cause significant economic harm”

Since the CJEU hearing in November of last year, the Commission has been largely silent on the guidance. The release of the document, which had initially been expected to be issued at the beginning of 2021, was successively postponed. The final version that has been published today shows that, during this period, the Commission’s thinking on the guidance has undergone a significant shift. This shift does not only weaken the relatively strong user rights safeguards that the Commission had originally proposed, it also undermines key aspects of the arguments that the Commission had made in front of the CJEU.

The idea of allowing rightholders to earmark “specific content which is protected by copyright and related rights, the unauthorised online availability of which could cause significant economic harm to them” is a new addition to the Commission’s guidance, which as far as we know was only introduced in the final months of the private discussions of the document at the political level, supposedly to address specific challenges posed by so called “high value content”.

Schematic overview of the mechanism proposed in the guidance, with the new earmarking mechanism highlighted in red.

While the final version of the guidance seemingly preserves the idea that “automated blocking, i.e. preventing the upload by the use of technology, should in principle be limited to manifestly infringing uploads”, it introduces a mechanism that allows rightholders to easily circumvent this principle. They can do so by “earmarking” content as content the “unauthorised online availability of which could cause significant economic harm to them” as part of the process of providing platforms with the “necessary and relevant information” for the application of the upload filtering mechanisms imposed by Articles 17(4)(b) and (c). 

The guidance does not establish any qualitative or quantitative requirements or criteria for right-holders to earmark their content. The relevant passage in Section V.2 simply states that they “may choose” to do so (emphasis ours): 

When providing the relevant and necessary information to the service providers, rightholders may choose to identify specific content which is protected by copyright and related rights, the unauthorised online availability of which could cause significant economic harm to them. The prior earmarking by rightholders of such content may be a factor to be taken into account when assessing whether online content-sharing service providers have made their best efforts to ensure the unavailability of this specific content and whether they have done so in compliance with the safeguards for legitimate uses under Article 17(7), as explained in part VI below.

The lack of criteria under which rightholders may earmark their content, coupled with undefined concepts like “significant economic harm” that merely need to be possible (“could cause”), effectively allows rightholders to earmark all of their content as content the “unauthorised online availability of which could cause significant economic harm to them”. This creates a loophole so large that the “principle” that automated blocking should be limited to manifestly infringing uploads only, can hardly be considered a principle anymore. 

As outlined above, this shift in position seems particularly important in the context of the pending CJEU case, as the European Commission’s defense of the fundamental rights compliance of Article 17(4) was centred on this very “principle”. 

The final version of the guidance further states that content that has been earmarked by rightholders must be subject to “particular care and diligence”, when it comes to the application of Article 17(4) in compliance with Article 17(7) and (9). Section VI of the guidance notes that:

In particular, service providers should exercise particular care and diligence in application of their best efforts obligations before uploading content, which could cause significant economic harm to rightholders (see section V.2 above). This may include, when proportionate and where possible, practicable, a rapid ex ante human review by online content-sharing service providers of the uploads containing such earmarked content identified by an automated content recognition tool. This would apply for content, which is particularly time sensitive (e.g. pre-released music or films or highlights of recent broadcasts of sports events) [footnote: Other types of content may also be time-sensitive]. (….) There should be no need for ex ante human review for content, which is no longer time sensitive [footnote: For example, in case of a football match the sensitivity may be a matter of days]. Service providers who decide to include rapid ex ante human review as part of their compliance mechanism should include mechanisms to mitigate the risks of misuse. 

These paragraphs exemplify how service providers can comply with the requirement to “exercise particular care and diligence” with regards to earmarked content: service providers may decide to apply a “rapid ex ante human review” (more precisely: service providers may decide to automatically block uploads of earmarked content until a human review process has been concluded, which should happen rapidly). When it is not “proportionate” nor “possible, practicable” to conduct a “rapid ex ante human review process”, service providers are still required to “exercise particular care and diligence”, but the guidance does not offer further examples on how that heightened care could be exercised in those cases.

At first sight, these sections also seem to establish additional criteria for qualifying content that “could cause significant economic harm”. Upon closer inspection these passages merely establish for which types of earmarked content it would be appropriate for service providers to apply “a rapid ex-ante human review”: “particularly time-sensitive” content (while the guidance gives examples of content for which such special treatment might be justifiable, the footnote makes this attempt to narrow down the category rather meaningless).

The subsequent passage of the guidance tries to limit the requirement for service providers to take “heightened care” to “cases of high risks of significant economic harm, which ought to be properly justified by rightholders”. But in doing so it fails to further define what constitutes “high risk”, leaving service providers with the difficult task of conducting an assessment of what constitutes “high risk”, based solely on the justification provided by rightholders : 

In order to ensure the right balance between the different fundamental rights at stake, namely the users freedom of expression, the rightholders intellectual property right and the providers right to conduct a business, this heightened care for earmarked content should be limited to cases of high risks of significant economic harm, which ought to be properly justified by rightholders. This mechanism should not lead to a disproportionate burden on service providers nor to a general monitoring obligation.

A last passage makes it clear that service providers are “deemed not to have complied, until proven otherwise, with their best effort obligations” and can “be held liable for copyright infringement” if they disregard “information on earmarked content as mentioned in section V.2 above”: 

Online content-sharing service providers should be deemed to have complied, until proven otherwise, with their best efforts obligations under Article 17(4)(b) and (c) in light of Article 17 (7) if they have acted diligently as regards content which is not manifestly infringing following the approach outlined in this guidance, taking into account the relevant information from rightholders. By contrast, they should be deemed not to have complied, until proven otherwise, with their best effort obligations in light of Article 17 (7) and be held liable for copyright infringement if they have made available uploaded content disregarding the information provided by rightholders, including – as regards content that is not manifestly infringing content – the information on earmarked content as mentioned in section V.2 above.  

In effect this means that service providers face the risk of losing the liability protections afforded to them by Article 17(4) unless they apply special treatment to all uploads earmarked by rightholders as merely having the potential to “cause significant economic harm”. Under these conditions rational service providers will have to revert to blocking all uploads containing earmarked content at upload. The scenario described in the guidance is therefore identical to an implementation with barely any safeguards: platforms have no other choice but to block every upload that contains parts of a work that rightholders have told them is highly valuable.

Conversely, the ability to earmark content as merely having the potential to “cause significant economic harm” provides rightholders with the ability to require the automated blocking of any uploads containing their content, regardless if these are manifestly infringing or not. In fact, if national lawmakers do not create incentives against the abuse of this system, namely via sanctions and transparency obligations (as the initial guidance proposal foresaw), it seems realistic to assume that rightholders will consider all content for which they provide relevant and necessary information to be economically important and will thus earmark all of the notified content.

By silently adding the mechanism during the extra time of the Article 17(10) process, the Commission has not only completely undermined the principle that the initial guidance was based on, it has also invalidated the position it has taken in the pending CJEU case on the fundamental rights compliance of Article 17. 

This reversal is especially stark since the Commission does not provide any justification or rationale why users’ fundamental rights do not apply in situations where rightholders claim that there is the potential for them to suffer significant economic harm. It seems hard to imagine that the CJEU will perceive the version of the guidance published today to provide meaningful protection for users’ rights when it has to determine the compliance of the Directive with fundamental rights. It seems that the Commission is acutely aware of this as well and so it has wisely included the following disclaimer in the introduction section of the guidance: 

The judgment of the Court of Justice of the European Union in the case C-401/192 will have implications for the implementation by the Member States of Article 17 and for the guidance. The guidance may need to be reviewed following that judgment.

In the end this may turn out to be the most meaningful sentence in the entire guidance.

The post A closer look at the final Commission guidance on the application of Article 17 appeared first on COMMUNIA Association.

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

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

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

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

How did we get here?

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

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

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

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

Calling the Commission’s bluff

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

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

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

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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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In order to achieve this objective, the German discussion draft published in June relies on the idea of “pre-flagging”: users would be allowed to flag uploads containing third party works as legitimate. Platforms would then be prevented from automatically blocking pre-flagged uploads unless they determine that the flag is incorrect because the upload is “obviously infringing”. 

By contrast, the Commission’s implementation guidance consultation proposes a “match-and-flag” mechanism: if upload filters detect the presence of a third party work in an upload and the use is not deemed to be “likely infringing”, then the uploader is notified and given the ability to state that the use is legitimate. If the user flags the upload as legitimate, the platform will have to initiate a human review of the upload, which remains available from the moment of upload until the review has been concluded. This type of mechanism was first suggested by a group of copyright academics in October of last year. It is also at the core of the proposal that we had presented during the last meeting of the stakeholder dialogue.

Both approaches provide a mechanism that limits the application of fully automated upload filters (while implicitly acknowledging the fact that many platforms will deploy upload filters). In the Commission’s proposal, filters are limited to making a pre-selection (“is the upload likely infringing?”); in the German proposal, they can only operate on unflagged content and to filter out “obviously incorrect” pre-flags.

Convergence on “match-and-flag”?

Both approaches have been criticised by rightholders, who claim that they undermine the “original objective of the directive” without providing alternative proposals on how automated filtering can be reconciled with the requirement not to block legitimate uploads. In addition, the German discussion proposal has also been criticised by platforms such as Google and Facebook. The platforms are arguing that giving users the ability to pre-flag every single upload would be impractical and would likely lead to substantial numbers of unnecessary (where the content in question is already licensed) or unjustified (users making excessive use of the pre-flagging tool) pre-flags, which would make such a system impractical to operate at scale. 

Netzpolitik.org has now published a leak of a new version (“Referentenentwurf”) of the German implementation law proposal. This version abandons the pre-flagging mechanism and replaces it with a “match-and-flag” approach similar to what the Commission has proposed (it also closely resembles a suggestion made by Google in its response to the German Consultation). However, there are also important differences between the two proposals, and based on a closer analysis it is clear that the new German proposal offers considerably less protection against unjustified blocking or removal of uploads than either the initial pre-flagging approach or the approach proposed by the Commission. To understand why we need to look at the details of the proposed mechanisms.

Both approaches clearly assume that platforms are able to identify matches between uploads and works that rightholder have requested to be blocked in (near) real time. Both the Commission’s proposal and Article § 8 of the German Referentenentwurf assume that users can be notified of a match during the upload process and thus can prevent legitimate uploads from being blocked at upload. While some technology vendors claim to have the ability to reliably match content during the upload, it is currently unclear if the ability to match in (near) real time is widely available to all platforms.

Given the uncertainty about the availability of real-time matching solutions for all types and sizes of platforms, it must be ensured that the use of automated filters is not imposed de facto by national legislators if this could be disproportionate for smaller platforms. The New German proposal does seem to require the use of real-time filters which would make it incompatible with the proportionality requirements in Art 17(5). 

The limits of “match-and-flag”

But even if we assume that platforms have the ability to match in real time during the upload, the approach still has limitations. The requirement to make best efforts to prevent the availability of works in Article 17(4)b does not apply only to new uploads: it also applies to uploads that are already on a platform. In situations where rightholders provide platforms with new blocking requests, the platforms will need to make best efforts to identify and remove them as well (this problem will be especially acute at the moment when the directive comes into force). Notifying the uploader of a match and giving her the possibility to flag the upload as legitimate does not offer the same protection here, because it cannot be assumed that the user has the ability to react immediately. This would mean that the upload in question would become unavailable until the uploader has had a chance to object. 

This problem is much more pronounced in the new German proposal. The Commission’s proposal makes it clear that platforms are only allowed to automatically remove uploads if a match is “likely infringing”. This means that already uploaded works that do not meet this requirement cannot be removed until either the user has had a chance to react to a notification or until the platform has concluded a human review of the upload in question. The German proposal does not contain such a safeguard, as it requires the automated removal of uploads unless these have been flagged as legitimate during the upload. 

This is regardless of whether the match is likely to be infringing or not. In situations where users cannot react to notifications right away, this will result in the removal of substantial amounts of legitimate uploads. Under the previous German pre-flagging mechanism this would not be an issue (with the exception of uploads already on the platform when the German implementation enters into force), because users would have had the ability to flag any legitimate upload as legitimate. The new German proposal only gives them the possibility to flag works as legitimate that are already on a blocklist at the moment of upload. 

Towards a combined approach?

As long as this blindspot persists, the new German proposal does not adequately implement the requirement in Article 17(7) that the availability of uploads that do not infringe copyright must not be prevented by measures deployed to implement Article 17(4)b. To fix this, the German legislator should add, to the mechanism provided in §8 of the new proposal, the ability to flag any upload as legitimate after it has been uploaded and that flagged upload cannot be automatically blocked. 

This combined approach would provide even stronger safeguards than the Commission’s proposal, which hinges on the idea that it is possible to automatically differentiate between likely infringing and likely legitimate content based on technical parameters.

As we have pointed out in our response to the Commission’s consultation, this approach, while viable in principle, is flawed as long as defining those technical parameters is left to platforms and rightholders without any involvement from users’ organisations. In addition, the proposed “likely infringing” standard does not set a high enough bar for preventing automated removal of potentially legitimate content. Instead, the “identical or equivalent” standard proposed in the academic statement that introduced the idea of “match-and-flag” should be a point of departure. In the case of time based media, this could be operationalised as matches that are at least 20 seconds long and where the match consists of at least 90% of the original work and at least 90% of the upload in question. In addition, matches of indivisible works (such as pictures) and short works (such as short poems) should never be assumed to be infringing, even when they correspond to 100% of an upload.

Meaningful protection for Public Domain and openly licensed works

A final advantage of such a combined approach is that it would also offer real protection from automated blocking for works that are in the public domain or available under open licenses. While such works are free to use for anybody, they are frequently blocked or removed as the result of wrongful ownership claims. In this situation it must be possible for anyone at any time to flag such works as being in the public domain or openly licensed. Given that this status will be the same across all (types of) platforms, such flags should not be recorded by individual platforms but in a public database that must be consulted by any system as part of assessing the status of an upload. 

While it may make sense for platforms to use their own private databases when it comes to matching uploads to reference files of works to be blocked, the effective protection of public domain and openly licensed works requires a fully transparent public database that reflects their status as public goods. This public database must be consulted by any system as part of assessing the status of an upload and should be maintained by an independent trusted entity that also offers a conflict resolution mechanism for resolving conflicting claims. 

Summary

At this stage, there seems to be some level of convergence towards “match-and-flag” mechanisms as a practical approach to reconciling 17(4) and 17(7). While still exhibiting shortcomings, such an approach would reflect the internal balance of Article 17 that the EU legislator arrived at. In how far a “match-and-flag” mechanism will be able to put this balance into practice depends on its practical implementation. As we have outlined above this means that: 

• There must be high thresholds to presume infringement and consequently permit fully automated blocking of uploads.
• These thresholds should be based on fully transparent criteria, which users can challenge in court.
• All matched uploads that do not meet these thresholds must be protected from blocking and flagged uploads must not be removed while under review by the platform.
• In addition there must be the ability for anyone to pre-flag works that are in the Public Domain or available under an open license via a decentralised public database that must be consulted by any (automated) measures used to comply with Article 17(4).
• National implementation must contain safeguards that ensure that already existing uploads cannot be blocked automatically.

Finally, it must also be ensured that the use of automated filters is not imposed by national legislators if this would be disproportionate for the platform in question.

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As we said in our initial analysis, we were very happy to note a clear commitment of the Commission to maintain the delicate legislative balance of Article 17 that reflected many of the constructive contributions that have been made by stakeholders across the spectrum during the dialogues. In general, we consider the Commission’s proposal a step in the right direction and this is reflected in our response to the consultation. Unsurprisingly, organisations representing rightholders have a completely different reaction to the proposal and have already started a campaign to convince the Commission into abandoning its approach.

Steps in the right direction

While we think that there is substantial room for improvement (as we have outlined in our responses to the individual questions), we are supportive of the key elements of the proposed guidance. From our perspective, these are:

• The clarification that Article 17 constitutes a “lex specialis” to the provisions of the InfoSoc Directive and that Member States should include the notion of ‘authorisation’ for the lex specialis ‘act of communication to the public’ in Article 17(1). This approach provides Member States with maximum flexibility to adapt their national legislation to the specificities of their national legal systems.
• The recognition that the guidance should recall that the objective of Article 17 is authorization. Given this objective, the guidance should explicitly endorse forms of authorization other than licenses, including remunerated exceptions.
• The clarification that the “uses under exceptions and limitations” that must not be affected by Article 17 not only cover the exceptions explicitly mentioned in Article 17(7) but also all other exceptions that Member States may have implemented under Article 5 of the InfoSoc directive. We also welcome the suggestion made by the Commission that member states should consider implementing additional exceptions (namely the incidental use exception), to ensure an as high as possible level of harmonisation of user rights.
• The clarification that Member States must not mandate the use of technology or impose any specific technological solutions on service providers to comply with their obligations under Article 17.
• The explicit recognition that the complaint and redress mechanism established by Article 17(9) is not a sufficient safeguard for user rights and that both 17(7) and 17(9) must be implemented into national laws to ensure that legitimate uses of content will be protected from deletion at the time of upload.
• The inclusion of a mechanism for the practical application of Article 17(4) in compliance with Article 17(7) that includes the requirement that uploads that are not “likely infringing” must remain online while the uploads are under review.

A crucial omission

This last element of the proposed guidelines is where it becomes problematic. From our perspective, it is unacceptable that the criteria for determining if the “likely infringing” standard is met should be agreed between rightholders and service providers, without representation of users, whose fundamental rights are at stake.

Defining the technical parameters must be a part of the dialogue and the Commission should propose initial parameters based on the input of all stakeholders. Furthermore it must be possible for users to act against platforms that repeatedly remove or block legitimate content, including the ability to challenge parameters that result in structural over-blocking.

Room for improvement

In addition, our response identifies a number of other issues where the proposed guidance needs to be improved:

• The mechanism for the practical application of Article 17(4) in compliance with Article 17(7) appears to focus on the development of criteria to try to identify legal uses of protected content under exceptions and limitations to copyright, but fails to propose safeguards to prevent the removal of legal uses of content for which the uploader has a license or which is in the public domain. This issue should be addressed through a combination of pre-flagging and public databases of public domain and openly licensed content.
• The guidance foresees that rightholders would need to file a takedown request pursuant to Article 17(4)c to challenge the outcome of the human review. The parties should not be able to challenge that decision by initiating another in-platform procedure. Instead, either party must be able to refer the outcome to the out-of-court dispute resolution mechanism or to the courts.
• We welcome the proposal that the guidance should include transparency requirements. However transparency requirements should apply more broadly to technical parameters, outcomes of complaints procedures as well as ownership claims. Robust transparency requirements will be essential for understanding the impact of Article 17 on users rights and on the policy objectives it is supposed to serve.
• Finally our response notes that the guidance should include more emphasis on the measures against abuse of the mechanisms introduced by Article 17 by bad-faith actors or parties that are structurally negligent. Without such measures, implementations of Article 17 will open the door for structural abuses of user rights.

It is now up to the Commission to analyse the feedback it has received and draw up the final version of the guidelines. It is clear that it is facing criticism from multiple fronts (in addition to the complaints from rightholders we have also seen critical responses from digital rights organisations such as EDRi and the EFF). It will be interesting to see in how far the Commission will be able to defend its overall approach (that would provide meaningful safeguards for user rights) against the mounting political pressure applied by the rightholder lobby.

As we have observed before, many of the same rightholders who are now crying foul-play are the very same organisations that have been trying to undermine the stakeholder dialogue from the start. After almost a year of largely constructive discussions in the stakeholder dialogue it would be devastating to the credibility of the Commission if rightholders would succeed with their destructive strategy.

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