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C4C Statement on the European Media Freedom Act (EMFA)

Following the presentation of the European Media Freedom Act by the European Commission on 13 September, the Coalition for Creativity (C4C) would like to express its concerns about a ‘media exemption’ popping-up again and the lack of proper transparency rules for the media industry.

Come-Back of the ‘Media Exemption’ (Article 17)

We believe that the treatment of media content by online platforms is a complex and sensitive issue that merits a proper debate and a thorough evaluation. Despite the clear rejection of the strong calls for a media exemption during the DSA and DMA debates, this demand is making its come-back through the EMFA, an instrument that clearly identifies media capture as a problem the EU is not spared  of. This risks having a detrimental impact on access to information and media pluralism, while possibly jeopardising the EU’s efforts against disinformation.

Ms Caroline De Cock, C4C Coordinator, said:

“Attributing new privileges to media organisations without awaiting the implementation and impact of the DSA provisions, would at the very best be premature and ill-thought, and at the very worst could open Pandora’s box of issues related to the identification of which media outlets would benefit from it as well as possible claims from other actors to benefit from similar privileges. One would hope all users can benefit from due process in content moderation.”

Missing Element: Strong Transparency

The proposal appears to be very light in terms of ensuring media ownership transparency, despite this being one of the crucial elements that civil society stakeholders have been calling for.

Ms Caroline De Cock, C4C Coordinator, said:

“Brussels has been big on transparency, so the failure to put forward a strong framework to unravel the financial streams in the media industry is disappointing. EU policymakers need to urgently facilitate the public scrutiny of these money flow seeing the media’s role as watchdog of democracy and in shaping the public opinion.”

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C4C Joins Opposition Against Revised US Journalism Competition and Preservation Act

On 2 September, C4C joined over 20 organisations in opposing the revised US Journalism Competition and Preservation Act (JCPA) and warning the US Congress against adopting this Act. The battles fought over issues such as the ‘link tax’ during the negotiations on the EU Directive on Copyright in the Digital Single Market (DCDSM) are popping up again in the context of the JCPA in the US. Just as during the DCDSM discussions we strongly oppose any attempts to curtail freedom of expression and access to information, and continue to believe that these misguided approaches fail to benefit and support smaller media outlets. See EFF’s campaign again the US link tax.

The full text of the letter can be found here and below.

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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

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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.”

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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)
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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.

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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.

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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, 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.]

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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, 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.]

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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, 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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