Off

CJEU Dismisses Polish Action Against Article 17 DCDSM But Stresses Importance of User Safeguards

Brussels, BELGIUM – Today, 26 April, the Court of Justice of the European Union (CJEU) issued its highly anticipated ruling (CJEU press releasejudgement) 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, Coalition for Creativity (C4C) coordinator:

“It is reassuring to see the attention the Court has given to the many safeguards put in place by the EU legislators in Article 17 in order to ensure the respect of the right to freedom of expression and information of users of platforms qualified as OCSSPs. This emphasis, as well as the reiteration of the general monitoring prohibition, must now be reflected in the national transpositions of Member States, which must deliver the fair balance between fundamental rights that the Court considers crucial for Article 17 to be deemed legal.”

C4C is a broad-based coalition that seeks an informed debate on how copyright can more effectively promote innovation, access, and creativity. C4C brings 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@coalition4creativity.org or +32 474 84 05 15.

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


The CJEU ruling summarised in one image

Other relevant resources:

Off

C4C Statement on the Political Agreement on the EU Digital Services Act (DSA)

Following the political agreement reached between the EU institutions during the 5th and final trilogue negotiations on the Digital Services Act (DSA) on 22-23 April, the Coalition for Creativity (C4C) would like to express its initial disappointment about potential pitfalls in this regulation.

Ms Caroline De Cock, C4C Coordinator, said:

“The DSA political agreement lacks user safeguards and continues to push vague concepts open to dangerous misinterpretations. The pursuit of a quick deal under the French Council Presidency, ahead of the 2nd round of the Presidential elections, at the expense of upholding fundamental rights is questionable at best and counterproductive at worst.

Last minute attempts by certain stakeholders to transform search engines in dangerous censorship tools were thankfully deflected, even though one has to wonder how these repeated jabs at freedom of speech are even allowed to pop up.

Once again, users have been left out and sidelined in a debate on important concepts, such a preserving their freedom of expression and access to information online. One can only hope that the DSA will not end up empowering less democratic regimes to exercise control over the speech of citizens outside of their Member State borders.

The EU has once more failed in truly stepping up to the plate in its role as a global actor and a guardian of fundamental rights. One can only fear the ripple effects the DSA will have on the policy agendas of other geographies, as has been notably evidenced following the adoption of the Directive on Copyright in the Digital Single Market and national legislation, such as the German NetzDG.

This is notably the case with the introduction of a crisis mechanism that could potentially be easily misused.

The expected compliance burden will be so high that the DSA risks consolidating Big Tech’s position to the detriment of smaller players, annihilating any positive market effects stemming from the DMA.

It remains to be seen if the SME exemption recognizes the need to recognizes the need to handle not-for-profit players, such as educational and scientific repositories, digital archives and libraries, differently, or merely creates a gaping loophole to the sole benefit of commercial entities.

Finally, C4C believes that in fine-tuning and applying the rules in practice, the European Commission and national regulators will need to ask and listen to the input of civil society, especially as it pertains to key fundamental rights such as freedom of speech and access to information.”

Off

C4C-Liberties Joint Op-Ed ‘Ukraine: The DSA cannot let filters blind us to war crimes’

On 19 April, Eva Simon, senior advocacy officer at the Civil Liberties Union for Europe (Liberties), and Caroline De Cock, C4C Coordinator, co-wrote an op-ed published on EURACTIV on the problems surrounding filtering ahead of the crucial and determining 5th trilogue on the Digital Services Act (DSA) on 22 April 2022. The op-ed has also been translated in German by EURACTIV. Highlighted quotes below.

Liberties (@LibertiesEU) is a European network of independent non-governmental organisations which aims to safeguard the human rights of everyone in the European Union. 

The Coalition for Creativity (@_C4C_) brings together libraries, scientific and research institutions, digital rights groups, technology businesses, and educational and cultural heritage institutions that share a common view on copyright. 


Ukraine: The DSA cannot let filters blind us to war crimes

The Digital Services Act (DSA) must protect our rights by including meaningful safeguards to uphold the fundamental rights of internet users, especially for those engaged in the indispensable work of documenting war crimes. 

Caroline De Cock & Eva Simon – ‘Ukraine: The DSA cannot let filters blind us to war crimes‘ (EURACTIV, 19 April 2022)

In the case of the Syrian Archive, inaccurate automated tools removed the videos because these lacked understanding of linguistic or cultural nuances, and could not differentiate between journalistic resources and war propaganda. That contextual blindness still exists in today’s automated content moderation tools, and they still lead to situations where completely legitimate content is wrongfully made inaccessible.

We must learn from these mistakes, and ensure that journalists, activists, or anyone else can share their opinions or (video) evidence without the threat of it disappearing, simply because online platforms are coerced into implementing poorly working automation tools.

Caroline De Cock & Eva Simon – ‘Ukraine: The DSA cannot let filters blind us to war crimes‘ (EURACTIV, 19 April 2022)

The DSA requires Big Tech companies to introduce risk analysis to predict and mitigate the negative effects on the exercise of fundamental rights, such as privacy, free speech, the prohibition of discrimination or the rights of minors. This should not be interpreted as requiring the mandatory use of automation.

Similarly, under no circumstances should co-regulatory measures such as the Code of Practice on disinformation impose pressure on online platforms to remove content so swiftly that it would necessitate the intensified deployment of automated tools.  

Caroline De Cock & Eva Simon – ‘Ukraine: The DSA cannot let filters blind us to war crimes‘ (EURACTIV, 19 April 2022)

The DSA must protect our rights by including meaningful safeguards to uphold the fundamental rights of internet users. It must also maintain the prohibition of general monitoring obligations, let that be automated or non-automated. Also, it should certainly not impose, either directly or implicitly, the use of mandatory upload filters or other content moderation automation.​​

Caroline De Cock & Eva Simon – ‘Ukraine: The DSA cannot let filters blind us to war crimes‘ (EURACTIV, 19 April 2022)

The DSA must preserve users’ privacy online and the continued prohibition against general monitoring by online platforms is an essential element thereof. In parallel, the ability to use the internet anonymously and through encrypted services offers crucial safeguards against monitoring. Such safeguards are in the text proposed by the European Parliament but now need to be embraced by the Council too. 

Caroline De Cock & Eva Simon – ‘Ukraine: The DSA cannot let filters blind us to war crimes‘ (EURACTIV, 19 April 2022)

The DSA is going through the final stages of the trilogue negotiations. As the European Parliament rightfully recognizes in its mandate, it is crucial to prohibit the mandatory use of upload filters. Such prohibition is the only way to avoid disproportionate limitations on access to information, freedom of expression and personal data protection.

Caroline De Cock & Eva Simon – ‘Ukraine: The DSA cannot let filters blind us to war crimes‘ (EURACTIV, 19 April 2022)
Off

C4C’s Comments on the UK-NZ Free Trade Agreement

In March 2022, C4C contributed to the International treaty examination of the UK-NZ Free Trade Agreement (FTA).

Our key message: Extending copyright protection with 20 years, going from life plus 50 years to life plus 70 years, blatantly neglects evidence demonstrating the lasting and irreversible negative direct and indirect effects of such an extension.

Off

C4C’s Comments on the U.S. Copyright Office Consultation on Technical Measures

In February 2022, C4C responded to the the consultation by the U.S. Copyright Office on technical measures to identify or protect copyrighted works online.

Our overall recommendation is simple: the uptake of technical measures to identify or protect copyrighted works online should not be mandated, nor should filtering become the de facto modus operandi online through ‘voluntary’ agreements.

The evidence outlined in our submission shows the negative effects faced by users, citizens and creators. These detrimental effects are reinforced when users are confronted with algorithmic failure combined with 3-strikes policies on platforms.

Moreover, growing calls from the copyright industry for stay-down ignore the fact that a piece of content can be used in multiple ways and that the copyright status of content has an expiry date, all contextual elements which algorithms cannot comprehend.

Off

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, 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@coalition4creativity.org or +32 474 84 05 15.

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

Other relevant resources:

Off

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, 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@coalition4creativity.org or +32 474 84 05 15.

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

Other relevant resources:

Off

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, 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):

Image

Other relevant views:

 

Off

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.

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.”
Off

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, 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@coalition4creativity.org or +32 474 84 05 15.

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