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CJEU Advocate General Øe – The risks at EU level of a ‘This can only mean’ approach or the disconnect between the law and national reality

Brussels, BELGIUM – Today, 15 July 2021, Advocate General (AG) Saugmandsgaard Øe from the Court of Justice of the European Union (CJEU) delivered his Opinion in the case initiated in 2019 by the Polish government seeking the annulment of Article 17(4)(b) and (4)(c) of the Directive on Copyright in the Digital Single Market (DCDSM) (Case C-401/19).

The following statement can be attributed to Ms Caroline De Cock, Copyright for Creativity (C4C) coordinator:

“Whilst the first reaction is disappointment, a more detailed reading of the Opinion shows that the Advocate General bases his assessment of legality on the need to frame Article 17 with a multitude of safeguards protecting users against overblocking. It also strikes down the ‘earmarking of content’ approach proposed in the European Commission’s Article 17 Guidance, a clear signal that should also be taken into account in the ongoing DSA discussions: economic interests do not prevail over users’ fundamental rights. Manifest illegality, no mandatory filtering, preserving user exceptions are all conditions that the Advocate General considers sufficient to counter the negative effects of Article 17, yet most of these conditions are not met in the national implementations conducted or proposed by Member States so far. A ‘this can only mean’ approach at EU level has not proven sufficient so far at national level.’

AG Øe’s Opinion, which was initially expected on 22 April, argues that Article 17 is legal and hence the case brought by Poland should be rejected. The reasoning however for that legality to be established comprises a series of conditions that ensure limitations to users’ fundamental rights are kept within bounds. 

C4C is a broad-based coalition that seeks an informed debate on how copyright can more effectively promote innovation, access, and creativity. We bring together libraries, scientific and research institutions, digital rights groups, technology businesses, and educational and cultural heritage institutions that share a common view on copyright.

For press inquiries on this please contact Ms De Cock at secretariat@copyright4creativity.eu or +32 474 84 05 15.

[Note: We are still analysing the Opinion and reserve the right to update.]

Other relevant resources:

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CJEU safeguards users’ freedom of expression by upholding an adequate standard for platforms’ knowledge

Brussels, BELGIUM – Today, 22 June 2021, the Court of Justice of the European Union (CJEU) issued its highly anticipated ruling (CJEU press release) in the joint cases revolving around YouTube and Uploaded (Frank Peterson v Google / Elsevier v Cyando – C-682/18C-683/18).

The following statement can be attributed to Ms Caroline De Cock, Copyright for Creativity (C4C) coordinator:

“At a time where many stakeholders are pushing for any type of enhancement to the user experience by online platforms to be deemed the mark of an active role, it is reassuring to see that the CJEU upholds an adequate standard for what constitutes knowledge. Such a standard is the only way to avoid over-blocking and ensure that freedom of expression of millions of users remains a reality.”

Upholding a knowledge standard based on realistic expectations of online platforms is the only way to avoid over-blocking and ensure that freedom of expression of millions of users remains a reality, an approach that the upcoming Digital Services Act should respect.

C4C applauds the fact that the Court followed Advocate General (AG) Øe’s opinion that neither YouTube or Cyando were directly performing acts of communication to the public. The judgement is obviously limited to the case at hand, and does not consider the role of the Article 17 regime of the Directive on Copyright in the Digital Single Market. Nevertheless, it pushes back against rightholders’ claims that user-generated content (UGC) platforms, such as video-sharing platforms and file-hosting and -sharing platforms, are always playing an active role and should hence be automatically held liable.

C4C is a broad-based coalition that seeks an informed debate on how copyright can more effectively promote innovation, access, and creativity. We bring together libraries, scientific and research institutions, digital rights groups, technology businesses, and educational and cultural heritage institutions that share a common view on copyright.

For press inquiries on this please contact Ms De Cock at secretariat@copyright4creativity.eu or +32 474 84 05 15.

[Note: We are still analysing the judgment and reserve the right to update.]

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The EC Article 17 guidance: Lobby pressure and making do with a poorly drafted piece of legislation?

Brussels, BELGIUM – Today, 4 June the European Commission adopted its long-awaited guidance to support the Member States in their adoption of Article 17 of the Copyright Directive. The outcome flows out of six stakeholder dialogues held before the pandemic hit and a (restricted) consultation effort mid-2020 on the Commission’s initial thinking.

The following statements can be attributed to Ms Caroline De Cock, Copyright for Creativity (C4C) coordinator:

  • “Considering the many translation errors surrounding the ‘best efforts’ concept, we welcome that this guidance sets in stone that the only accurate terminology is indeed ‘best’ as the standard for the efforts to be deployed, and mandate that ‘it should be transposed by the Member States in accordance with this guidance.”
  • “The final guidance could have been better, as the Commission decided to make do with a bad legislative text, and clearly gave in to the hefty lobbying by rightholders by carving out a specific regime for content ‘earmarked’ by them.”

The Commission’s adoption process for this guidance has been desperately slow. It is at least reassuring that the Commission acknowledges that platforms must meet a best effort standard in their action taking into account a need for proportionality. Considering the many translation errors surrounding the ‘best efforts’ concept, we welcome that this guidance set in stone that the only accurate terminology is indeed ‘best’ as the standard for the efforts to be deployed, and mandate that ‘it should be transposed by the Member States in accordance with this guidance and interpreted in light of the aim and the objectives of Article 17 and the text of the entire Article’. 

Furthermore, the guidance mirrors to a certain extent the analysis given by the Commission’s legal services at the CJEU hearing on the Polish Article 17 case: preserving users’ rights is an obligation of result, whilst combatting copyright infringing uses of content is an obligation of means, that should never impede recklessly on the freedoms of our citizens. 

But the final guidance could have been better, as the Commission decided to make do with a bad legislative text, and clearly gave in to the hefty lobbying by rightholders by carving out a specific regime for content ‘earmarked’ by them.

See COMMUNIA’s flowchart interpreting the regulatory framework flowing out of Article 17 based on the EC’s guidance (‘earmarking’ mechanism highlighted in red):

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Other relevant views:

 

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C4C’s Comments to Canada’s Copyright Term Extension Consultation

The Canadian Government is consultingextended deadline: 31 March 2021, 11:59 pm local time – on implementing its commitment under the Canada-US-Mexico Agreement (CUSMA) to extend its general copyright protection term  from 50 to 70 years after the life of the author by the end of 2022.

Professor Michael Geist (Ottawa University) highlighted “the timidity of the recommendations”, a view C4C shares. He notably pointed out the Government’s reluctance to follow recommendations by the Canadian Industry Committee to mandate registration for the additional 20 years protection.

Copyright for Creativity (C4C) responded to the consultation to make it clear that the best way forward is no term extension, but if the government goes ahead, at the very least, damage control measures are required. See also Creative Commons’ submission focussing on how extending copyright’s term harms the public domain.

Our recommendations

At a principle level, we believe  there should be no extension of the term of protection of copyright beyond 50 years for two main reasons:

  1. The lack of sound legal and economic arguments for a term extension.
Did you know that: The economist Rufus Pollock demonstrated in a 2009 paper titled ‘Forever Minus a Day? Calculating Optimal Copyright Term,’ that the optimal copyright term is actually only 15 years.
  1. The current protection terms are already too long.
Did you know that: Lengthy protection terms lead to outcomes such as the so called ‘20th century black hole’ when it comes to online availability of copyrighted works. This black hole notably means that there are significantly fewer works from the mid to late 20th century available on europeana.eu than works from the centuries before (many of which are clearly in the public domain) or from the 21st century (many of which are still available commercially and whose rightholders can generally be contacted quite easily).

However, it is our understanding that due to ill thought commitments in a trade agreement, the Canadian government may not be in a situation where it can avoid such an extension.  Whilst we regret the fact that such a commitment was made, C4C considers the Canadian government must now focus on mitigating the negative effects stemming from it.

  1. At a minimum, such an extension should not be retro-active.
Our view: Refraining from retro-actively extending protection terms also ensures that the current status-quo of the public domain is safeguarded, whilst recognising its function as a stimulus for creativity. From a user/creator perspective, public domain works are a key foundation on which both old and new forms of expression (such as remix) can flourish thanks to the lack of copyright restrictions. The longer the copyright term, the less public domain works are available for distribution, use and re-use.
  1. An active act of registration by a rightholder to benefit from such an extension after 50 years (or for that matter even earlier) should be required.
Our view: We agree with the 2019 recommendation issued during the copyright review process led by the Canadian Industry Committee that states: “The Committee believes that requiring rights-holders to register their copyright to enjoy its benefits after a period equal to the life of the author plus 50 years would mitigate some of the disadvantages of term extension, promote copyright registration, and thus increase the overall transparency of the copyright system.”
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CJEU Does Not Follow Advocate General on Linking: Latest Copyright Ruling Preserves “Traditional” Linking but Opens the Door to Technical Protection Measures

Brussels, BELGIUM – Today, 9 March 2021, the Court of Justice of the European Union (CJEU) issued after almost two years its long awaited ruling in the VG Bild-Kunst case (C-392/19). The judgement is obviously limited to the case at hand and constrained by the questions put forward in the request for a preliminary ruling by the German Federal Court of Justice (Bundesgerichtshof – BGH).

The following statement can be attributed to Ms Caroline De Cock, Copyright for Creativity (C4C) coordinator:

“The CJEU’s reasoning builds on previous cases such as Svensson (C-466/12) and GS Media (C-160/15), that all recognize the importance of allowing mainstream linking to continue on the Internet. The impact of this decision does not affect plain vanilla linking and embedding done by millions of users every day, without any copyright related implications.

“The Court does not close the door to hotlinking infringing copyright, but only if rightholders use specific ‘technical protection measures.’ It seems to reject the AG’s dangerous interpretations that (i) copyright owners cannot be asked to ‘opt-out’ but must ‘opt-in’ to allow this type of links (ii) ‘non-clickable’ links are always an infringement.”

As is often the case, the CJEU has responded to a specific set of questions related to a very narrow situation of hotlinking and circumvention of protection measures against framing, confirming that a licensee needed to do more to protect images that were licensed to it when putting them online. The dispute concerned the need for technical protection measures to be implemented by a licensee of VG Bild-Kunst, who considered the licence requirement imposed by the latter to be unreasonable. In the case at hand, VG Bild-Kunst had asked its licensee to ensure that the images could only be viewed on the original website, a condition which the licensee failed to meet.

The CJEU ruled that “where the copyright holder has adopted or imposed measures to restrict framing, the embedding of a work in a website page of a 3rd party, by means of that technique, constitutes making available that work to a new public, which must therefore be authorised,” hence following the reasoning set out in Advocate General Szpunar’s opinion

As regards linking, the case related to a very specific and narrow type of linking, namely “hotlinking” or “inline linking,” whereby a webpage contains graphics or audio-visual elements as embedded files that display automatically but without the user of a page seeing the original link or webpage at the source. This practice is extremely rare online and is fundamentally different from more mainstream linking such as embedding or framing of for example an Instagram post or a Scribd document on a webpage, where the link to the original website is apparent to the user and can be reached by clicking on it.

C4C is a broad-based coalition that seeks an informed debate on how copyright can more effectively promote innovation, access, and creativity. We bring together libraries, scientific and research institutions, digital rights groups, technology businesses, and educational and cultural heritage institutions that share a common view on copyright.

For press inquiries on this please contact Ms De Cock at secretariat@copyright4creativity.eu or +32 474 84 05 15.

[Note: We are still analysing and reserve the right to update based on full ruling.]

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C4C Welcomes the SHARE Foundation

C4C is proud to announce that the SHARE Foundation signed on to our Declaration which promotes a copyright framework that fosters creativity, innovation, education, competitiveness and access to culture.

The SHARE Foundation is a non-profit organization representing online media, citizen journalists and bloggers, human rights defenders, members of the internet community and all other netizens engaged in battles to keep the Web open, decentralised and free. It was established in 2012 to advance human rights and freedoms online and promote positive values of an open and decentralised Web, as well as free access to information, knowledge, and technology. The SHARE Foundation’s primary areas of activities are freedom of speech online, data privacy, digital security, and open access to knowledge and information.

Danilo Krivokapic, Director of the SHARE Foundation, explains why they are joining C4C at this crucial moment in the copyright reform: “Upload filters would seriously hamper our right to freely receive and impart information on the internet and would effectively make private online platforms the arbiters of speech”.

C4C welcomes the SHARE Foundation and looks forward to a strong collaboration at the European and national level. For more information, please do not hesitate to contact Caroline De Cock, Coordinator of the Copyright for Creativity Coalition, at +32 (474) 840515, or Bojan Perkov, Policy Researcher at the SHARE Foundation.

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C4C Welcomes SPARC Europe

C4C is proud to announce that SPARC Europe, the Scholarly Publishing and Academic Resources Coalition, signed on to our Declaration which promotes a copyright framework that fosters creativity, innovation, education, competitiveness and access to culture.

SPARC Europe, founded in 2004, is a non-profit, member organisation comprised among others of a diverse body of academic institutions, library consortia, funding bodies, research institutes and some publishers, who are all committed to delivering on the promise of Open Access and Open Science. In recent years, SPARC Europe has also widened its focus to encompass Open Data and Open Education Resources. In their view, more openness in research will lead to an accelerated rate of discovery in academia and in the private sector, and of learning at every strata of education.

C4C welcomes SPARC Europe and looks forward to a strong collaboration at the European and national level. For more information, please do not hesitate to contact Caroline De Cock, Coordinator of the Copyright for Creativity Coalition, at +32 (474) 840515, or Vanessa Proudman, SPARC Europe’s Director, or Angela Walseng, SPARC Europe’s Communication Adviser.

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IMCO Vote on Copyright in the DSM: crying tears of…?

Today, 8 June, the Internal Market and Consumer Protection (IMCO) Committee voted on Copyright in the Digital Single Market [2016/0280(COD)]. IMCO was the 1st Committee to vote on the file, and is setting the direction for the other votes in the next weeks in the Culture and Education (CULT – 21 June), Civil Liberties, Justice and Home Affairs (LIBE – 29 June) and Industry, Research and Energy (ITRE – 11 July) Committees. The vote in the lead Legal Affairs (JURI) Committee will only take place after the summer break, and is currently scheduled for 28 September.

The IMCO Committee adopted its Opinion with 19 votes for, 7 against and 6 abstentions. It seems that the Members of the GUE/NGL and EFDD Groups failed to show up for the vote, whilst half of the ECR Group MEPs were also missing, as many of them are probably caught up in the UK elections vote taking place today. This resulted in a lot of the progressive and good amendments being rejected with tight votes. Luckily, the extremely harmful ‘alternative’ EPP Group compromise amendments that MEP Pascal Arimont (Belgium) tried to force down everyone’s throat did not make it in the end, as some common sense did creep into the debate.

So what’s the outcome?

The press publisher’s right (Article 11) is lava

The current trend on the Internet is a revival of the kid’s game ‘The floor is lava’, whereby if someone shouts that sentence at you, you have 5 seconds to get your feet off the ground in order not to get burnt. The result on Article 11 feels like a lot of MEPs  thought today was a good day to introduce the game in European Parliament votes as the end result of all the pulling and shoving between the Rapporteur’s proposal to delete Article 11, supported by every political group except the EPP Group, and the alternatives put forward by EPP Shadow Rapporteur MEP Arimont to put Article 11 on steroids resulted in … no amendments getting voted through, which means that the IMCO Committee decided to stick to the European Commission’s initial text, which is flawed as explained in our infographic.

However, some amendments were adopted to the Recitals linked to this provision, with mitigated results.

On the positive side:

  1. One of the major flaws of this provision was corrected, as the IMCO Committee decided to delete the retroactive application of this new neighbouring right as they adopted the Compromise Amendment on Article 18.
  2. EPP MEPs Eva Maydell (Bulgaria) and Antanas Guoga (Lithuania) their proposal to protect referencing systems, such as hyperlinks, from the scope of Article 11 were adopted.

The bad news: The IMCO Committee adopted recitals which heavily criticise digital platforms, such as news aggregators and search engines’ impact on press publishers, instead of recognising their added value to a pluralistic media sector. An amendment suggesting the extension of this right to ‘print’ publications also slipped through the cracks, as well as the addition of a reference to the obscure Rental and Lending Directive.

Text and Data Mining (Article 3): one step forward, two steps backwards

On the text and data mining (TDM) provision, a minimal extension to the scope of beneficiaries was agreed, but this small step forward is overshadowed by restricting the content that can be mined to only legally acquired content, which raises the question of freely accessible content. But then again, IMCO did not put much focus on this area so the job of fixing this very unambitious provision will need to be done in the other Committees.

The censorship filter (Article 13): putting checks and balances to the benefit of consumers…and the Internet

On the filtering of user uploaded content (a.k.a. the ‘censorship filter‘) the different political groups reached a sensible compromise by putting to vote the proposals for Article 13 and its Recitals that were proposed  by rapporteur Michal Boni in the Committee on Civil Liberties, Justice and Home Affairs (LIBE). MEP Boni’s proposal whilst not perfect, clearly tries to ensure that the provisions of Article 13 do not disrupt the existing legal framework and established CJEU case law, whilst taking a technologically neutral approach and making sure users are not forgotten in this equation (see our full analysis here).

The adoption of these amendments give a clear signal from the IMCO Committee, which is an associated Committee on Article 13, to the lead Legal Affairs (JURI) Committee on which direction to take and also provides clarity on the EPP Group’s position.

Other good news: user-generated content and freedom of panorama exceptions

Remembering that it says ‘consumers’ in its denomination, the IMCO Committee managed to agree to include an exception for user generated content (UGC) in its Opinion, as well as a fully fledged freedom of panorama exception!

Conclusion

Rapporteur MEP Catherine Stihler (S&D, UK) must be commended for the excellent job she did under difficult circumstances (including having male colleagues shout at her at the end of a vote, which is not exactly a display of good manners in our book), as well as MEP Boni for delivering a sound compromise position on the censorship filter. But a lot of work still needs to be done and every MEP in this dossier will need to take her/his responsibility and vote for the outcome to truly reflect all views. Not showing up is simply not an option when more than half of the good amendments get rejected due to tied votes!

[Ed. Note: This blog post first appeared on CopyBuzz.com]


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LIBE Opinion on Copyright in the Digital Single Market: Trying to put boundaries on the Censorship Filter

Following the CULT and IMCO Opinions (see our blog posts respectively here and here) and the Report by the lead Committee of the EP on this matter, namely the Legal Affairs (JURI) Committee (see our blog post here), the last Opinion of the EP has now been published, namely the one by rapporteur Michal Boni of the Committee on Civil Liberties, Justice and Home Affairs (LIBE).

As often happens when a report is published last, it builds on all the views that are out there and, in the case of MEP Boni, tries to offer a pragmatic middle ground. In this case, the LIBE Rapporteur has limited himself to examining Article 13, aka the Censorship filter, as he considers this is a provision that needs to be looked at in light of its impact on the fundamental rights of users.

A lot of positive thoughts…though deletion would have been the best option

 

The Opinion clearly tries to ensure that the provisions of Article 13 do not disrupt the existing legal framework and established CJEU case law, whilst taking a technologically neutral approach and making sure users are not forgotten in this equation:

  • The reference to specific technologies such as’content recognition technologies’ is removed (AM9).
  • The upholding of the principles of the E-commerce Directive (and especially of Art 15 ECD which prohibits general monitoring obligations) and the need for measures adopted by companies to respect the fundamental rights of users is clearly set out (AM3 & 9). 
  • The need for Member States to ensure users have access to a court or another competent authority (AM12), combined with the responsibility of rightholders in case of counter claims is also explicitly stated (AM4). After all, if they are the one claiming rights over content, they are the only ones capable of responding to such a counter claim, not the guy in the middle.
  • The involvement of user representatives in the definition of best practices to implement this provision is also welcome, as it counter balances the industrial interests of the rightholders and online platforms (AM13).

Room for improvement…especially considering deletion would have been the best option

 

But as always in the legal drafting arena, the devil is in the detail:

  • The scope of application of the censorship filter, whilst more limited than in many other proposals, still comprises an incoherency in its drafting:
    • Indeed, Article 13 is now set to apply to the situation ‘Where information society service providers offer users content storage services and provide the public with access to content’. There is however no link established between the storage of content and the content to which access is provided.
    • This is however easily remedied by adding one small word, namely: ‘Where information society service providers offer users content storage services and provide the public with access to such content
  • Whilst reminders of the respect of fundamental rights of users never hurt, it must be noted however that the Charter of Fundamental Rights imposes obligations on Member States, not on private entities such as online platforms. As these voluntary agreements fall in the private space, the ‘respecting fundamental rights’ element could prove to be wishful thinking or a carrot with no stick.

Conclusion: Hell is paved with Good intentions

 

Whilst it is clear that MEP Boni has, in the same vein as his colleague MEP Comodini Cachia, tried to bring back some common sense in this debate, it is a bit disappointing that the one Committee of the EP tasked with protecting the fundamental rights of users has not taken the only stance that makes sense from a principles point of view, which is to request the deletion of this ill-thought provision.

In our May 2017 open letter [PDF] to the Council and the European Parliament, C4C and 63 signatories reiterated this fact: ‘Article 13 should be removed from the copyright negotiations and dealt with in appropriate contexts. We strenuously oppose such ill thought through experimentation with intermediary liability, which will hinder innovation and competition and will reduce the opportunities available to all European businesses and citizens.’

But at least the intentions of MEP Boni are laudable, as are his efforts to remove the most toxic aspects of what the European Commission had put on the table. So for that, our thanks!


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COMMUNIA – Last EP Committee opinion on copyright reform balances civil liberties with political reality

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Open Letter on the EU copyright reform

Open Letter on the EU copyright reform

Over 60 civil society & trade associations urge European lawmakers to put the EU copyright reform back on track

On 29 May 2017, over 60 civil society and trade associations – representing publishers, journalists, libraries, scientific and research institutions, consumers, digital rights groups, start-ups, technology businesses, educational institutions and creator representatives – sent this open letter [PDF] to the Ministers attending the Competitiveness Council and European Parliament Rapporteur MEP Therese Comodini Cachia and her colleagues, asking them to put the EU copyright reform back on track.

The letter points out that the draft proposal issued by the European Commission not only lacks ambition, but also comprises various provisions that represent major pitfalls.

The signatories ask ‘European lawmakers to oppose the most damaging aspects of the proposal, but also to embrace a more ambitious agenda for positive reform’, highlighting three key messages:

  • Article 13 (‘censorship filter’): Do not impose private censorship on EU citizens by filtering user uploaded content. Article 13 should be removed from the copyright negotiations and dealt with in appropriate contexts.
  • Article 11 (press publishers’ right): Do not create new copyrights. Remove any creation of additional rights such as the press publishers’ right in Article 11.
  • Articles 3-9: Put Europe on the map by enabling innovation, research and education. European lawmakers can do so by taking positive steps in revisiting Articles 3 to 9 which cover areas such as innovation, research and education, to ensure that these provisions are applied broadly and uniformly across the EU, without being overridden by contractual terms or technological protection measures, and that the proposed text and data mining exception benefits all persons with legal access to content.

The letter concludes by calling upon the European lawmakers “to deliver a reform that is fit for purpose in the digital environment and that upholds and strengthens fundamental principles such as the rights of citizens to freedom of communication and access to knowledge”.

Press inquiries:

Ms Caroline De Cock, Coordinator Copyright for Creativity (C4C), +32 (0)474 84 05 15