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.
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.
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.
Netherlands found European rules harmful
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”.
European to Dutch rules
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.
more ambitious proposal is desperately needed
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
This research could be carried out by academics with expertise in the
field of copyright.
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.
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.
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).
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).
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!
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
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.
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.
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!
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.
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).
On 26 February 2019, European Digital Rights and partner organisations from across Europe are re-launching the campaign SaveYourInternet.eu – with new items in the “toolbox”. Today, we add to our website the action prepared by our Austrian member epicenter.works: Pledge2019.eu. The campaign, managed by the EDRi network, has become the main platform for concerned citizens who want to contact EU policy makers about the proposed implementation of upload filters in the European Union.
Pledge2019.eu allows voters from all EU Member States to call their representatives free of charge and convince them to pledge to reject the upload filters included in the Article 13 of the controversial proposal for the EU Copyright Directive. Citizens are encouraged to consider parliamentarians’ stance on Article 13 when voting for the European Parliament election in May 2019.
The final vote in the European Parliament may take place as early as March, with the exact date yet to be announced. The (as of today) 751 representatives from all Member States will then have the option to reject upload filters in the copyright Directive.
However, misinformation fuelled by private interests tried to depict these concerned citizens as ‘bots’.
We are very close to getting rid of upload filters and obtaining a more balanced copyright Directive. Citizens need to raise their voice for the last time and use the EU elections in May to build the democratic echo around the #SaveYourInternet chorus.
The behind-closed-doors discussions between the European Parliament negotiating team, EU Member States and the European Commission on the copyright Directive finalised last night with an agreement. The text, prepared by France and Germany, will be put to a vote between March and April in the European Parliament and could become law soon afterwards. The copyright Directive, originally aimed at “modernising” the copyright framework, has fallen short of those expectations. Instead, it forces the implementation of upload filters and brings only minor improvements in other areas. The proposal could lead to unlawful restrictions on freedom of speech and reduce access to knowledge.
The secret discussions have ended with the worst version of the “Censorship machine” we have seen so far. Citizens need to react, once again, to prevent these upload filters that threaten our freedom of expression from becoming reality.
– said Diego Naranjo, Senior Policy Advisor at European Digital Rights
If the unofficial text available is confirmed, it is in essence a transposition of the bilateral Franco-German deal reached last week. In its current version, Article 13 will bring direct liability for hosting providers.
Internet hosting services would be automatically considered to be performing a “communication to the public” when copyrighted material (or “other subject matter”) is hosted by them, regardless of whether it was uploaded by the company itself or by a user. The internet services shall then make “best efforts” to conclude licensing agreements with the rightsholders on any piece of copyrighted material (potentially every article, image, audio file and video uploaded to the internet). It is unclear how that will work in practice. Nevertheless, the elimination of the intermediate liability exception will likely leave companies no choice than to monitor every piece of content that is shared and uploaded on their platforms.
The only services to be exempted from liability, as introduced in the final deal, would be the few platforms that would fulfil the accumulative criteria that the online platform is: (a) less than three years old (b) making less than 10 million Euro annual turnover and (c) visited by less than 5 million unique visitors a month.
One MEP and two big member states have turned music investors into legislators, despite input from academics, the inventor of the World Wide Web, civil society and even the UN Special Rapporteur on Freedom of Expression. It is now up to people across EU to set the record straight and make their voice heard.
– added Diego Naranjo (EDRi).
This proposal has worsened many better versions that were discussed before in the European Parliament. It further ignores the main critique against Article13 – upload filters empower (mostly US-based) Big Tech companies to decide on restrictions on freedom of speech in the EU.
The vote on the final text will likely be cast in the EP plenary in late March or early April. We will continue to push for a substantial reform of the flawed provisions in the run-up to the vote. EDRi calls on everyone committed to a free and uncensored internet to raise their voice and contact MEP’s through the #SaveYourInternet campaign.