26 Feb 2020

Copyright stakeholder dialogues: Compromise, frustration, dead end?

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)

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18 Oct 2019

EU copyright dialogues: The next battleground to prevent upload filters

By Ella Jakubowska

On 15 October, the European Commission held the first of the stakeholder dialogues, mandated by Article 17 of the EU copyright Directive, inviting 65 organisations to help map current practices, and opening the door for deeper collaboration in the future.

Organisations from all sides of the debate were able to present their positions. While the first meeting focused on music, software and gaming, the next one will focus on audiovisual, visual, sports and text. These live-streamed dialogues are probably the last window of opportunity at the EU level for those who campaigned against upload filters in the copyright Directive to achieve the alleged goals of the Directive – harmonisation and modernisation of the copyright framework – without the collateral damage to citizens’ liberties. If the dialogues fail to achieve this, the battle will move to EU Member States.

The Copyright Directive was adopted as part of plans to unite Europe’s Digital Single Market in June 2019 – just over a year after the General Data Protection Regulation (GDPR) was adopted, and in the midst of an ongoing struggle over the proposed ePrivacy Regulation. The contentious Directive was welcomed by rightsholders who were keen to see online platforms take responsibility for copyright infringement; but it received criticism across civil society, academia, UN Special Rapporteur on Freedom of Expression David Kaye and even Edward Snowden, for enabling the removal of citizens’ legal content by automatic filters.

“Techno-solutionism” as a knee-jerk reaction

Techno-solutionism describes attempts to solve any and all problems with technology. The technologically-focused approach taken in the Directive and advocated for by some rightsholders is the wrong solution for the alleged problem (lack of negotiating power between rightsholders and streaming services). The upload filters deriving from Article 17 are severely error-prone (from cat purring being mistaken for copyrighted music, to evidence of war crimes being lost) and do not understand the full range of nuanced human expression, for example caricature, parody or pastiche. This situation empowers tech giants, harms small and medium enterprises, and fails to adequately protect authors. Furthermore, Article 17(7) of the Directive offers only limited mandatory exceptions for the use of content for quotation, parody or pastiche. Member States still have the opportunity to go beyond these exceptions and make all exceptions and limitations mandatory. However, the proposed automated filters will not be able to deal with the analysis of most of them. A more nuanced approach towards copyrighted content will be needed, including human supervision.

Violations and harms in the current situation

More than just theoretically flawed, the application of the copyright Directive could lead to violation of freedoms. So-called “copyright trolling” is a phenomenon used to either extort or censor individual users. When implementing the Directive, Member States should enable systems that penalise such abuses. Furthermore, the use of automated filters may collide with Article 22 of the GDPR which gives the right to data subjects not to be subject to a decision based solely on automated processing if that decision significantly affects them. How this will be dealt with in practice is to be seen.

Fundamental incompatibility with the human right to redress

The right to redress is a fundamental principle for this Directive to avoid collateral damages. The current redress mechanism has already been shown to be inadequate, as platforms are likely to turn to their Terms of Service as the excuse to delete content rather than going through the hassle of deciding if this or that exception or limitation in the Directive protects their right to use copyrighted content. We hope that the non-judicial redress mechanisms mentioned in Article 17(9) are easily and freely available to anyone needing them.

Reframing the debate to prevent violations of free expression

If the goal is indeed to target services that unfairly benefit from authors’ work, then the definition of Online Content Sharing Service Providers (OCSSPs) must be made more specific; it has to better reflect the few services that specifically profit from infringing copyright at large scale to the extent that they become alternatives to paid streaming services and that do not adequately remunerate rightsholders. Another possible solution is to reverse the burden of proof so that disputed content is not immediately removed. In essence, silence cannot play to the disadvantage of citizens: if platforms ask rightsholders for a licence, and the rightsholder does not react, this should mean that the “best efforts” threshold to obtain license has been met by the platform. If a rightsholder asks to block the content of a user and the user claims that they were within their right, the silence of the rightsholder should imply that the disputed content stays or is reinstated as soon as possible. In the case of disagreement in the dispute, human intervention would be appropriate.

The next stakeholder meeting will be held on 5 November.

First meeting of the Stakeholder Dialogue on Art 17 of the Directive on Copyright in the Digital Single Market (15.10.2019)
https://ec.europa.eu/digital-single-market/en/news/first-meeting-stakeholder-dialogue-art-17-directive-copyright-digital-single-market

Organisation of a stakeholder dialogue on the application of Article 17 of Directive on Copyright in the Digital Single Market (28.08.2019)
https://ec.europa.eu/digital-single-market/en/news/organisation-stakeholder-dialogue-application-article-17-directive-copyright-digital-single

All you need to know about copyright and EDRi (15.03.2019)
https://edri.org/all-you-need-to-know-about-copyright-and-edri/

Copyfails: time to #fixcopyright! (23.05.2016)
https://edri.org/copyfails/

Article 17 Stakeholder Dialogue: We’ll Continue to Advocate for Safeguarding User Rights (08.10.2019)
https://www.communia-association.org/2019/10/08/article-17-stakeholder-dialogue-well-continue-advocate-safeguarding-user-rights/

(Contribution by Ella Jakubowska, EDRi intern)

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11 Sep 2019

Poland challenges copyright upload filters before the CJEU

By Centrum Cyfrowe Foundation

On 24 May 2019, Poland initiated a legal challenge (C-401/19) before the Court of Justice of the European Union (CJEU) against Article 17 of the Directive on copyright in the Digital Single Market. EDRi member Centrum Cyfrowe Foundation has previously tried to get access to the complaint using freedom of information (FOI) requests, without success. Now, the CJEU has finally published the application for this legal challenge.

Bringing the Directive to the Court of Justice is a positive step that can help clear controversies concerning its Article 17. An independent court will assess issues that in the policy debate preceding the adoption of the Directive were typically dismissed by representatives of rights holders as fear-mongering or disinformation.

The Republic of Poland seeks the annulment of Article 17(4)(b) and Article 17(4)(c) of the copyright Directive.Alternatively, should the Court find that the contested provisions cannot be deleted from Article 17 of Directive without substantively changing the rules contained in the remaining provisions of that article, Poland claims that the Court should annul Article 17 of Directive in its entirety.

Poland claims that the Directive infringes the right to freedom of expression and information guaranteed by Article 11 of the Charter of Fundamental Rights of the European Union. The legal challenge mentions as particularly problematic the imposition on online content-sharing service providers to “make best efforts to ensure the unavailability of specific works and other subject matter for which the rights holders have provided the service providers with the relevant and necessary information” and to “make best efforts to prevent the future uploads of protected works or other subject-matter for which the rights holders have lodged a sufficiently substantiated notice make it necessary for the service providers — in order to avoid liability — to carry out prior automatic verification (filtering) of content uploaded online by users, and therefore make it necessary to introduce preventive control mechanisms”. In other words, obliging online platforms to filter all uploads by their users.

Unfortunately, the political context of the challenge has raised some questions. The complaint was submitted just two days before the elections of the European Parliament and Poland’s ruling Law and Justice party (PiS) has been brandishing its opposition to upload filters against the biggest opposition party, Civic Platform.

The EU Member States (and Iceland, Liechtenstein and Norway) have until 2 October 2019 to submit an application to the CJEU to intervene in this case, as defined by Chapter 4 of the CJEU’s Rules of Procedure (RoP). Member States can intervene to support, in whole or in part, either Poland’s position on Article 17 or the Council and Parliament’s position on Article 17.

Centrum Cyfrowe Foundation
https://centrumcyfrowe.pl/en/

The Copyright Directive challenged in the CJEU by Polish government (01.06.2019)
https://www.communia-association.org/2019/06/01/copyright-directive-challenged-cjeu-polish-government/

CJEU Case C-401/19 – Poland v Parliament and Council
http://curia.europa.eu/juris/liste.jsf?language=en&num=C-401/19

Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market, Article 17
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32019L0790#017

(Contribution by Natalia Mileszyk, EDRi member Centrum Cyfrowe Foundation, Poland)

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11 Sep 2019

The Netherlands, aim for a more ambitious copyright implementation!

By Bits of Freedom

All EU Member States are obliged to implement the newly adopted EU Copyright Directive, including its controversial Article 17. But how to interpret it, is up to them. In the Netherlands, there is currently a draft bill, which is unfortunately very disappointing. The government really needs to try much harder to protect the interests of internet users.

What was that again, Article 17 (or 13)?

Article 17 (formerly Article 13) includes a provision that makes platforms directly responsible for the copyright infringement from content that users upload to those services. It does not solve the problem it’s supposed to solve, but it does limit the freedom of internet users tremendously. It will oblige online companies such as Google and SoundCloud to scan and approve everything their users upload. This will likely lead to those companies, in order to avoid legal liability, to refuse many uploads in advance.

The Netherlands found European rules harmful

The Dutch government was crystal clear in the debate that took place at the European level prior to the adoption of the Directive: these rules do more harm than good. In 2017, the Netherlands asked the lawyers of the European Commission critical questions about the legal sustainability of the proposal for the Directive. Much later in the process, the Netherlands voted against the text that was to serve as a basis start of the negotiations of the Member States with the Commission and Parliament. Later again, the Dutch permanent representation stated that the adopted proposal “does not strike the right balance between the protection of right holders and the interests of EU citizens and companies”.

From European to Dutch rules

Since this is a Directive, all Member States must incorporate the rules into national legislation. Now that the Directive has been adopted, and introducing chances at the European level is no more possible, transposition to national laws is the place to limit the damage. In other words: with a minimal transposition the rights of the internet user are protected to the maximum extent. If the Netherlands was so critical of the Directive, you would expect it to also do its utmost to try to limit as much as possible the damage it will cause in the transposition into national legislation. But, unfortunately…

On 2 July 2019, the Dutch Ministry of Justice and Security published a draft bill for this transposition. That proposal is disappointing in its lack of ambition to protect the interests of the internet users It does not limit the harm by providing an adequate limited implementation of Article 17, as it could, and it does not force that the guarantees for users provided in the Directive are properly explained.

A more ambitious proposal is desperately needed

EDRi member Bits of Freedom strongly urges the Dutch government to come up with a more ambitious bill. A transposition in which the damage of the Directive is limited as much as possible and the rights of the internet users are protected as much as possible. Because this is a particularly complex legal matter, Bits of Freedom also recommends that, prior to the drafting of the bill, an investigation be carried out into the scope that a Member State has to limit the damage of the Directive. This research could be carried out by academics with expertise in the field of copyright.

The Netherlands must do better

In short, the Netherlands must do better. The fact that the Directive has been adopted does not mean that the battle is lost. There’s still a lot that can be done to limit its potential negative impacts. Here, too, hard work pays off: you reap what you sow.

Bits of Freedom
https://www.bitsoffreedom.nl/

Come on government, stand up for us! (only in Dutch, 29.08.2019)
https://www.bitsoffreedom.nl/2019/08/29/kom-op-kabinet-kom-op-voor-ons/

Come on government, stand up for us! (11.09.2019)
https://www.bitsoffreedom.nl/2019/09/11/come-on-government-stand-up-for-us/

Bits of Freedom’s advice to the Dutch government (only in Dutch, 26.08.2019)
https://www.bitsoffreedom.nl/wp-content/uploads/2019/08/20190826-inbreng-bitsoffreedom-consultatie-implementatie-auteursrechtrichtlijn.pdf

Does #article13 protect users against unjustified content blockages? (only in Dutch, 25.03.2019)
https://www.bitsoffreedom.nl/2019/03/25/beschermt-artikel13-gebruikers-tegen-onterechte-content-blokkades/

Bill of Implementation Directive Copyright in the Digital Single Market (only in Dutch)
https://www.internetconsultatie.nl/auteursrecht

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

(Contribution by Rejo Zenger, EDRi member Bits of Freedom; translation from Dutch to English by Bits of Freedom volunteers Celeste Vervoort and Martin van Veen)

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11 Sep 2019

CJEU: Public documents could be censored because of copyright

By Diego Naranjo

On 29 July 2019, the Court of Justice of the European Union (CJEU) delivered a judgment that could have serious impact on freedom of expression. The case (C‑469/17) concerns Funke Medien NRW GmbH, the editor of the German daily newspaper Westdeutsche Allgemeine Zeitung, and Bundesrepublik Deutschland (Federal Republic of Germany). It follows a request in the proceedings between those two parties concerning the publication of classified documents (with the lowest degree of confidentiality) called “Parliament briefings”, or “UdPs”, by the German publisher.

Copyright or freedom of the press?

The UdPs in question are military status reports regularly sent to Federal ministries about the deployment of the German military abroad. Funke Medien tried initially to obtain a series of documents via a freedom of information request, which was denied. Later on, the publisher obtained the documents via an unknown source and published them as part of the “Afghanistan papers”. The German government took the view that Funke Medien had infringed the copyrights by publishing the UdPs. The Regional Court in which the dispute was being settled referred the case to the CJEU for a preliminary ruling regarding the exception to use copyrighted work for journalistic reasons (Article 5(3) of Directive 2001/29, the “Infosoc Directive”) and the limits of freedom of information and freedom of the media in relation to copyrighted works. Exceptions and limitations allow to use copyrighted works without specific authorisation from the rights holder (the author or the entity owning the rights of reproduction).

CJEU replies: Copyright is king. Or freedom of the press. It depends.

In the preliminary ruling, the Court stated that military reports can be protected by copyright “only if those reports are an intellectual creation of their author which reflect the author’s personality and are expressed by free and creative choices”. Whether military reports (or any other piece of public information) is protected by copyright must be, according to the CJEU, defined case by case by national member states courts. This national interpretation also applies to exceptions in Article 5(3) of the Infosoc Directive, in this case for reproduction rights for journalistic purposes. The CJEU said that it is also up for the Member States to decide how copyright exceptions and limitations apply on a case by case basis, but that, when implementing EU law, States need to “ensure that they rely on an interpretation of the directive which allows a fair balance to be struck between the various fundamental rights protected by the European Union legal order”.

The Court said that even if the UDPs were considered works protected by copyright, Funke Medien had the right to use the work for journalistic purposes under the copyright exception, and that therefore the publication of the papers was legal. However, this does not set a precedent for similar piece of content in other Member States (or even in Germany), since it’s up to the national courts to decide how to balance fundamental rights at stake (protection of “Intellectual Property” versus freedom of expression and freedom of information, for example).

Towards nationally implemented upload filters?

This judgment does not act in vacuum. It’s only a few months since the EU copyright Directive was adopted. From the very beginning of the discussion EDRi and other civil society groups raised the alarm on the risks of Article 13, and we published thorough analysis of Article 17 (then Article 13). One of the main risks of the adopted text is that, in order to ensure that they make their “best efforts to ensure the unavailability of specific works”, platforms will be obliged to use upload filters and scan each text, video, image (yes, including memes!) and audio uploaded to their services to avoid being sued by rights holders. Despite the widely extended claims that the copyright Directive would not lead to upload filters, it became pretty clear pretty quickly that it was all about implementing upload filters.

National parliaments are deciding how to implement the copyright Directive, and the way this happens could lead to upload filters taking care of how even documents from public authorities with a public relevance become part of the public discourse. The EU-approved censorship machines could decide to block this content to avoid judicial disputes over “copyrighted” content with a public relevance, such as the ones at stake in this court case.

Get in touch with your national EDRi members, Wikimedia chapter or consumer organisation, and make sure upload filters are not going to be mandatory in your country!

CJEU judgment Funke Medien NRW GmbH vs Bundesrepublik Deutschland, Case C‑469/17 (29.07.2019)
http://curia.europa.eu/juris/document/document.jsf?text=&docid=216545&pageIndex=0&doclang=en

Press Release: Censorship machine takes over EU’s internet (26.03.2019)
https://edri.org/censorship-machine-takes-over-eu-internet/

Re-Deconstructing upload filters proposal in the copyright Directive (28.06.2018)
https://edri.org/redeconstructing-article13/

(Contribution by Diego Naranjo, EDRi)

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20 May 2019

NGOs call to ensure fundamental rights in copyright implementation

By EDRi

Today, on 20 May 2019, EDRi and 41 other organisations sent an open letter to the European Commission. The letter is calling for the inclusion of civil society in the implementation process of the newly adopted Copyright Directive through the upcoming stakeholder dialogue.

The stakeholder dialogue is a consultation process mandated by the Copyright Directive. It will serve as an opportunity for relevant stakeholders to discuss the transposition and implementation of the infamous Article 13 (Article 17 in the final text) of the Copyright Directive.

The signatories of the letter have on numerous occasions throughout the legislative debate on the copyright reform expressed their explicit concerns about the fundamental rights questions that will arise during the implementation of the Directive.

The letter highlights that the participation of organisations representing internet users in the consultation process is crucial for ensuring that fundamental rights are properly considered, especially in cases where the Directive requires internet platforms to disable access to or remove user-uploaded content. A diverse working group can ensure that the fears around automated upload filters are not realised. It can assist in creating guidelines under which both content-sharing service providers and rightsholders respect the Charter of Fundamental Rights of the European Union.

You can read the letter below, or download it here (pdf).


20 May 2019

Dear President Juncker,
Dear First Vice-President Timmermans,
Dear Vice-President Ansip,
Dear Commissioner Gabriel,
Dear Director General Roberto Viola,

The undersigned stakeholders represent fundamental rights organizations, the knowledge community (in particular libraries), free and open source software developers, and communities from across the European Union.

The new Directive on Copyright in the Digital Single Market has been adopted and, as soon as it is published in the Official Journal, Member States will have two years to implement the new rules. Article 17, on ‘certain uses of protected content by online services’, foresees that the European Commission will issue guidance on the application of this Article.

The undersigned organisations have, on numerous occasions throughout the legislative debate on the copyright reform, expressed their very explicit concerns (1) about the fundamental and human rights questions that will appear in the implementation of the obligations laid down on online content-sharing service providers by Article 17. These concerns have also been shared by a wide variety of other stakeholders, the broad academic community of intellectual property scholars, as well as Members of the European Parliament and individual Member States. (2)

We consider that, in order to mitigate these concerns, it is of utmost importance that the European Commission and Member States engage in a constructive transposition and implementation to ensure that the fears around automated upload filters are not realized.

We believe that the stakeholder dialogues and consultation process foreseen in Article 17(10) to provide input on the drafting of guidance around the implementation of this Article should be as inclusive as possible. The undersigned organisations represent consumers and work to enshrine fundamental rights into EU law and national-level legislation.

These organisations are stakeholders in this process, and we call upon the European Commission to ensure the participation of human rights and digital rights organisations, as well as the knowledge community (in particular libraries), free and open source software developers, and communities in all of its efforts around the transposition and implementation of Article 17. This would include the planned Working Group, as well as other stakeholder dialogues, or any other initiatives at consultation level and beyond.

Such broad and inclusive participation is crucial for ensuring that the national implementations of Article 17 and the day-to-day cooperation between online content-sharing service providers and rightholders respects the Charter of Fundamental Rights by safeguarding citizens’ and creators’ freedom of expression and information, whilst also protecting their privacy. These should be the guiding principles for a harmonized implementation of Article 17 throughout the Digital Single Market.

Yours sincerely,
Balázs Dénes
Executive Director
Civil Liberties Union for Europe (Liberties)

Association for Progressive Communications
APADOR-CH
ApTi Romania
Article 19
Associação D3 – Defesa dos Direitos Digitais
Associação Nacional para o Software Livre – Portugal
Bits of Freedom
BlueLink Foundation
Center for Media & Democracy
Centrum Cyfrowe Foundation
Civil Liberties Union for Europe
Coalizione Italiana Libertà e Diritti civili
COMMUNIA association for the Public Domain
Creative Commons
Digitalcourage
Digitale Gesellschaft e. V.
Electronic Frontier Finland
Electronic Frontiers Foundation
Elektronisk Forpost Norge
epicenter.works
European Digital Rights (EDRi)
Fitug e.v.
Hermes Center
Hivos
Homo Digitalis
Human Rights Monitoring Institute
Hungarian Civil Liberties Union
Index on Censorship
International Federation of Library Associations and Institutions (IFLA)
Irish Council for Civil Liberties
IT-Pol Denmark
La Quadrature du Net
Metamorphosis Foundation
Nederlands Juristen Comité voor de Mensenrechten (NJCM)
Open Rights Group
Peace Institute
Privacy First
Rights International Spain
Vrijschrift
Wikimedia Deutschland e. V.
Wikimedia Foundation
Xnet

1 Human rights and digital rights organisations: https://www.liberties.eu/en/news/delete-article-thirteen-open-letter/13194
2 Academics from the leading European research centres: https://www.create.ac.uk/blog/2019/03/24/the-copyright-directive-articles-11-and-13-must-go-statement-from-european-academics-in-advance-of-the-plenary-vote-on-26-march-2019/
Max Plank Institute: https://www.ip.mpg.de/fileadmin/ipmpg/content/stellungnahmen/Answers_Article_13_2017_Hilty_Mosconrev-18_9.pdf
Universities: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3054967
Researchers: https://www.southampton.ac.uk/assets/imported/transforms/content-lock/UsefulDownloads_Download/A6F51035708E4D9EA3582EE9A5CC4C36/Open%20Letter.pdf
UN special rapporteur on the promotion and protection of the right to freedom of opinion and expression: https://www.ohchr.org/Documents/Issues/Opinion/Legislation/OL-OTH-41-2018.pdf

Background

After two and a half years of inter-institutional negotiations, the European Parliament adopted the Directive on Copyright in the Digital Single Market on 26 March 2018. Rules bind the European Commission to hold stakeholder dialogues and the consultation process after the Directive is published in the Official Journal of the European Union. Member states will then have two years to implement the regulation. Regarding Article 17, a guidance on the application will be issued by the European Commission in order to help national implementation processes.

Read more

Open letter on the Copyright Directive stakeholder dialogue (20.05.2019)
https://edri.org/files/copyright/20190517-EDRI_copyright_open_letter.pdf

EU Member States give green light for copyright censorship (15.04.2019)
https://edri.org/eu-member-states-give-green-light-for-copyright-censorship/

Filters Incorporated (19.04.2019)
https://edri.org/filters-inc/

Censorship machine takes over internet (26.03.2019)
https://edri.org/censorship-machine-takes-over-eu-internet/

Copyright reform: Document pool
https://edri.org/copyright-reform-document-pool/

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26 Mar 2019

Press Release: Censorship machine takes over EU’s internet

By EDRi

Today, on 26 March, the European Parliament voted in favour of adopting controversial upload filters (Article 13/17) as part of the copyright Directive. This vote comes after what was an intense campaign for human rights activists, with millions of signatures, calls, tweets and emails from concerned individuals, as well as Europe-wide protests.

Despite the mobilisation, 348 Members of the European Parliament (MEPs) gave their support to the proposed text which includes concerning restriction to freedom of expression. Noticeably, 274 stood up with citizens and voted to reject upload filters. The proposal to open the text for amendments was rejected by five votes difference. The amendments proposing the deletion of Article 13 were not even subject to a vote.

Article 13 of the copyright Directive contains a change of internet hosting services’ responsibility that will necessarily lead to the implementation of upload filters on a vast number of internet platforms. With dangerous potential for automatised censorship mechanisms, online content filtering could be the end of the internet as we know it.

Disappointingly, the newly adopted Directive does not benefit small independent authors, but instead, it empowers tech giants. More alarmingly, Article 13 of the Directive sets a dangerous precedent for internet filters and automatised censorship mechanisms – in the EU and across the globe.


said Diego Naranjo, Senior Policy Advisor at EDRi

European Digital Rights (EDRi) has long advocated for a copyright reform that would update the current EU copyright regime to be fit for the digital era, and make sure artists receive remuneration for their work and creativity. This Directive delivers none of those.


EU Member States will now have to transpose the Directive into their national laws and decide how strictly they will implement upload filters. People need to pay special attention to the national-level implementation of the Directive in order to ensure that the voted text does not enable censorship tools that restrict our fundamental rights.

Ahead of the next European Parliament elections, this vote comes as another important reminder of the impact that EU law-making can have on human rights online and offline. EDRi ensures the voice of civil society is represented in the EU democratic process and would like to thank all those involved in the battle against upload filters for their inspiring dedication towards the defence of fundamental rights and freedoms.

Copyright reform: Document pool
https://edri.org/copyright-reform-document-pool/

All you need to know about copyright and EDRi (15.03.2019)
https://edri.org/all-you-need-to-know-about-copyright-and-edri/

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13 Mar 2019

What will happen to our memes?

By Bits of Freedom

In Europe, new rules concerning copyright are being created that could change the internet fundamentally. The consequences that the upload filters included in the EU copyright Directive proposal will have for our creativity online raise concerns. Will everything we want to post to the internet have to pass through “censorship machines”? If the proposed Directive is adopted and implemented, what will happen to your memes, for example?

The proposal that will shortly be voted on by the European Parliament contain new rules regarding copyright enforcement. Websites would have to check every upload that is made by their users for possible breaches of copyright, and must block this content when in doubt. Even though memes are often extracted from a movie, well-known photo or video clip, advocates of the legislation repeat time and again that this doesn’t mean memes will disappear − they reason that exceptions will be made for that. In practice, however, such an exception does not seem workable and impairs the speed and thus the essence of memes. It will be impossible for an automated filter to capture the memes’ context.

Step 1: You upload a meme

Imagine that you’re watching a series and you see an image that you would like to share with your friends − it could be something funny or recognisable to a large group of people. Or that you use an existing meme to illustrate a post on social media. Maybe you adjust the meme with the names of your friends or the topic that concerns you at that moment. Then you upload it on Youtube, Twitter or another online platform.

Step 2: Your upload is being filtered

If the new Directive – as currently proposed – is implemented, the platform will be obliged to avoid any copyrighted material from appearing online. In order to abide the legislation, they will install automated filters that compare all material imported into the platform with all the copyrighted material. In case there is a match, the upload will subsequently be blocked. This will also be the case with the meme you intended to share online, because it originates from the television series, video clip or movie. You get the message: “Sorry, we are not allowed to publish this.”

Step 3: It’s your turn

What!? What about the exception that was supposed to be there for memes? Of course the exception is still there, but in practice it’s impossible to train filters to know the context of every image. How does a filter know what is a meme and what isn’t? How do these filters keep learning about new memes that appear every day? There are already many examples of filters that fail. Hence, you’ll need to get to work. Just like you can appeal against the online platforms’ decision when it has wrongfully blocked a picture for depicting “nudity” or “violence”, you will be able to appeal when your meme couldn’t pass the filter. That probably means that you’ll need to fill in a form in which you explain that it’s just a meme and explain why you think it should be allowed to be uploaded.

Step 4: Patience, please

After the form is filled in and you click “send”, all you can do is wait. Just like already is the case with filters of Youtube and Facebook: the incorrectly filtered posts need to be checked by real human beings, people that can assess the context and hopefully come to the conclusion that your image really is a meme. But that process can take a while… It’s a pity, because your meme was responding perfectly to current events. Swiftness, creativity and familiarity are three key elements of a meme. With upload filters, to keep the familiarity, you lose the swiftness.

Step 5: Your meme will still be posted online − or not?

At a certain moment in time, you receive a message. Either your upload has been finally accepted, or there still might be enough reasons to refuse it from being uploaded. And then what? Will you try again at another platform? That might take some days as well. The fun and power of memes is often the speed in which someone responds to a proposal of a politician, or an answer in a game show. Therefore you shouldn’t let Article 13 destroy your creativity!

#SaveYourInternet as we know it! Call a Member of the European Parlement (for free) through pledge2019.eu!

Bits of Freedom
https://www.bitsoffreedom.nl/

What will happen to our memes? (11.03.2019) https://www.bitsoffreedom.nl/2019/03/11/what-will-happen-to-our-memes/

What will happen to our memes? (only in Dutch, 11.03.2019) https://www.bitsoffreedom.nl/2019/03/04/wat-gebeurt-er-straks-met-onze-memes/

Pledge2019.eu
https://pledge2019.eu/en

Save Your Internet
https://saveyourinternet.eu/

(Contribution by Esther Crabbendam, EDRi member Bits of Freedom, the Netherlands; translation by Winnie van Nunen)

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13 Mar 2019

Record number of calls to the EU Parliament against upload filters

By Epicenter.works

With just two weeks to go until the final vote on upload filters in the European Parliament, one hundred MEPs have pledged to vote against Article 13 of the proposed Copyright Directive. Many citizens feel like their legitimate fears about the future of the internet are not taken seriously as lawmakers insult them as being “bots” or simply “a mob”. Public protests demanding the removal of Article 13 have been announced in 23 European cities.

Thousands of EU citizens have taken part in the pledge2019.eu campaign, picking up their phone and calling their representatives. Since the campaign was launched at the end of February, citizens have called their elected representatives more than 1200 times, and spent over 72 hours on the phone with them. This unprecedented number of phone calls to politicians demonstrates just how much people care about an open, uncensored internet. It also shows that citizens are interested in engaging in European political issues, if you let them. After previous attempts of citizens to reach out to policy makers via social media or e-mail have been discredited as originating from bots or being part of a mob, citizens are now going the extra mile and voice their concern directly to their elected representative.

The damage done to Europe’s democracy by claiming that citizens voicing their concerns are a manufactured campaign is immense. A whole generation of internet users learn that their legitimate fears about the consequences of the proposal on modern everyday cultural expression and media habits are being ignored and ridiculed. In reaction, the protest movement against Article 13 gave itself the slogan “We are no bots”.

Upload filters are quickly becoming a major issue in the upcoming EU elections as demonstrators are joined by a host of experts against Article 13: UN Special Rapporteur on freedom of expression David Kaye warns against the threat for our freedom of expression online, academics specialising in intellectual property law call the proposal “misguided”, the founder of the world wide web Sir Tim Berners-Lee together with other internet emincence warns about the imminent threat to the open internet, and the International Federation of Journalists calls on policy makers to rethink this unbalanced copyright Directive.

On 23 March 2019 several rallies and demonstrations will be organised against Article 13 all around Europe. Concerned citizens still have two weeks left to visit www.pledge2019.eu and make their voices heard.

Epicenter.works
https://epicenter.works/

Save Your Internet
https://saveyourinternet.eu/

Pledge2019.eu
https://pledge2019.eu/en

Save Your Internet – Call for a Pan-European Day of Protests on 23 March!
https://savetheinternet.info/demos

(Contribution by Thomas Lohninger, EDRi member Epicenter.works, Austria)

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07 Mar 2019

Join us in the European Parliament to #SaveYourInternet!

By Diego Naranjo

After more than 3 years of debates, the decisive moment to ensure that upload filters are not imposed in the European Union (EU) has arrived. In the following weeks (date to be confirmed), the European Parliament (EP) will be voting on the copyright Directive. In its current form, article 13 of the copyright Directive would lead to the imposition of upload filters on the majority of online services you use. Despite wide criticism from all parts of society, the resulting text on Article 13 is the worst we have read so far and EU citizens will need to speak up to stop it by asking to reject upload filters in the copyright Directive.

This is why we are launching a travel grant for activists willing to travel, meet with Members of the European Parliament (MEPs) and ask them to vote against upload filters.

What would the grant cover?

* The grant would cover travel costs of up to 350€ (including local transport in Strasbourg/Brussels) plus accommodation costs of up to 50€ per night (max. two nights).

* The grants will be given on a first come, first served basis. However, we will select applicants based on their advocacy experience, civil society background and knowledge of the issues at stake.

* If you don’t have the capacity to pay in advance, we could arrange buying the ticket and book the rooms for you (exceptionally).

Who is eligible for the grants?

Any individual or organisation representing civil society/human rights interests with ideally (but not necessary) some experience meeting with policy makers and with extensive knowledge of what Article 13 implies for human rights online.

Will I get advice on how to conduct the meetings and whom to meet?

Yes. We will organise a workshop the day before for those with less experience in advocacy at the EU level.

I’m ready to help! How can I request a grant?

Submit an email before 15 March to diego.naranjo [at] edri.org with “SYI-grants” in the subject line indicating:

  • Your organisation (if any) and your advocacy experience on digital rights from a civil society perspective
  • A short (max. 300 words) statement on why you want to join us in Strasbourg and what are the key problems with Article 13 of the copyright Directive
  • How many people will come from your organisation would like to be covered by the grant (max. two persons per submission)

You will be notified as soon as possible of the success of your application so you can arrange your trips and accommodation. Once this is done, we will arrange a mandatory get-together in Strasbourg/Brussels with all the activists to prepare the meetings with MEPs (exceptions can be made for participants with proven extensive advocacy experience).

Read more:

Press Release: SaveYourInternet.eu – Citizens set to prevent upload filters in the EU
https://edri.org/saveyourinternet-eu-citizens-set-prevent-upload-filters-eu//

Pledge 2019 Campaign Website
https://pledge2019.eu/en

EDRi member epicenter.works
https://epicenter.works/

Upload Filters: history and next steps [20.02.2019]
https://edri.org/upload-filters-status-of-the-copyright-discussions-and-next-steps

All you need to know about copyright and EDRi [15.03.2019]
https://edri.org/all-you-need-to-know-about-copyright-and-edri

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