By Laureline Lemoine

The second phase of the stakeholder dialogues on Article 17 of the Copyright Directive finished in December 2019. The two meetings of the third phase, focusing on the provisions of Article 17, were held on 16 January and 10 February 2020.

The concepts of authorisation and best efforts were discussed in the first meeting on 16 January. The second meeting on 10 February covered users’ safeguards and redress mechanisms.

Can we still fix Article 17?

On 10 February, for the first time, the dialogue gave the opportunity to discuss the central issue of Article 17 (former Article 13): the conflict between platforms’ obligations and users’ rights.

Article 17(4) requires platforms to make best efforts to avoid the availability of copyright protected content, which in practice forces the implementation of upload filters. On the other side, Article 17(7) ensures that the cooperation between rightsholders and platforms does not lead to the blocking or removal of legitimate content, such as copyright exceptions. It has been demonstrated, even during these dialogues, that filters cannot understand context and therefore cannot recognise when users make use of copyright exceptions such as criticisms or parody. Stakeholders discussed how this conflict could be addressed.

Users’ organisations presented concrete scenarios to avoid the automated blocking of content

How could this conflict be solved in practice? EDRi supports a scenario where the content flagged by filters would stay online during the whole process of review, from the moment when being uploaded, until human review, as seen in the image below.

Image: Communia

Communia, an NGO promoting policies that expand the public domain, presented a slightly different scenario, based on recommendations from academics. They differentiate between two types of copyright infringement flagged by filters:

  • First, a “prima facie” copyright infringement, an identical or equivalent match to a protected content, which would lead to the content being automatically blocked. However, users would still be able to complain and be entitled to the safeguards of Article 17(9). Because of the potential for abuse, the proposal also includes possible sanctions for rightsholders who repeatedly make wrongful ownership claims.
  • Second, in cases of partial matches to protected content, users would be able to make declarations of lawful use, allowing their content to stay up during the whole process, until the human review.

The European Consumer Organisation BEUC also suggested that users should be educated about copyright to allow them to fully make use of this declaration.

Proposed scenario by Communia, taken from their presentation during the stakeholders dialogue meeting of 10 February.

Surprisingly, Studio 71, a global media company owned by broadcasters, presented a similar model based on the same academics paper. The difference with Communia’s scenario is the introduction of a “red button” that rightsholders would be able to use to immediately block content, even after a user makes a declaration of lawful use. Studio 71’s proposal also includes sanctions for both users and rightsholders in case of repeated abuse. They even provided evidence of their own overblocking, saying that they allegedly once wrongfully blocked 50 000 pieces of content.

The European Commission showed interest and kept asking for more details especially regarding the concrete implementation of a prima facie rule. However, it quickly became clear that most rightsholders had no interest in joining such discussion, and instead insisted that their rights should prevail and that the complaint and redress mechanism was the only solution to overblocking.

This is not the first time that stakeholders refuse to meaningfully engage in the dialogue process. On 16 January, most of them refused to provide useful input to help define important concepts of Article 17. Rightsholders have not shown interest in guidelines that would limit their blocking capabilities, and big platforms already manage their own blocking tools.

European Commission to the rescue?

Faced with the rightholders’ attitude, the European Commission explained that their role in this dialogue was to ensure the effectiveness of the exceptions. They believe that the interpretation of Article 17 where the only remedy available for users is the redress mechanism might not ensure such effectiveness. They quoted the Court of Justice’s case law, saying that exceptions are particularly important for freedom of expression. They then strongly encouraged the rightsholders to suggest workable concrete solutions, instead of shutting down any attempt at compromise.

However, despite the Commission’s intervention, we are still in the dark regarding the content of the guidelines and whether they will actually be able to safeguard users’ rights against powerful commercial interests. Moreover, will the guidelines be followed by EU Member States when they implement the Directive? Some Member States already drafted their implementation laws, and users’ rights safeguards are missing. The Commission must actively ensure that national implementations of the Directive effectively protect users’ rights.

What’s next?

The European Commission said it will reflect on the input received during these six meetings with stakeholders, but wants to meet up again around 30 March. This final meeting would be the opportunity to present their initial view on the content of the guidelines. They will also to launch a written and targeted stakeholder consultation, details on which will be provided at the meeting in March.

We hope that this means the whole draft guidelines will be shared with us and that the purpose of this consultation will be to seek feedback on whether the document can be further improved to ensure compliance with the Charter of Fundamental Rights of the EU, as we requested in January 2020.

Article 17 stakeholder dialogue (day 6): Hitting a brick wall
https://www.communia-association.org/2020/02/13/article-17-stakeholder-dialogue-day-6-hitting-brick-wall/

Copyright stakeholder dialogues: Filters can’t understand context
https://edri.org/copyright-stakeholder-dialogues-filters-cant-understand-context/

EU copyright dialogues: The next battleground to prevent upload filters (18.10.2019)
https://edri.org/eu-copyright-dialogues-the-next-battleground-to-prevent-upload-filters/

NGOs call to ensure fundamental rights in copyright implementation (20.05.2019)
https://edri.org/ngos-call-to-ensure-fundamental-rights-in-copyright-implementation/

Copyright: Open letter asking for transparency in implementing guidelines (15.01.2020)
https://edri.org/copyright-open-letter-asking-for-transparency-in-implementing-guidelines

(Contribution by Laureline Lemoine, EDRi)