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Article 17 stakeholder dialogue (day 1): Same old, same old

Article 17(10) of the Copyright in the Digital Single Market directive requires the Commission to “organise stakeholder dialogues to discuss best practices for cooperation between online content-sharing service providers and rightholders”.  Last week Tuesday we took part in the first meeting of the stakeholder dialogue. The dialogue (which will consist of a series of meetings) is supposed to provide the Commission with input for producing guidelines can “balance fundamental rights and the use of exceptions and limitations” with the upload filtering obligations introduced by Article 17 of the directive.

The meeting, which was attended by 80 stakeholders (plus representatives from the 28 Member States), was supposed to focus on “current practices with regard to the cooperation between rightholders and online content sharing service providers” in the music, software and gaming sectors. The day  was kicked off by a short welcome address by Commissioner Maria Gabriel in which she praised the outcome of the copyright reform as an example of Europe taking the lead in developing rules for the digital environment (translation from the original French): 

The new Copyright Directive in the Digital Single Market demonstrates the ability of the European Union to collectively reflect on today’s challenges and to bring about just, innovative and concerted responses. It is another example of a Europe that opens the way and sets an example to the rest of the world.

[…] The new Directive, and in particular Article 17, opens a new era in the regulation of the relationship between copyright and digital services. And this, without touching the fundamentals. It does not challenge the traditional rules of copyright while introducing a new framework that provides essential guarantees to ensure a proper balance between fundamental rights, in the first place freedom of expression on the Internet.

[…] With the adoption of the Copyright Directive, the European Union is leading a global movement to develop a fairer economic model for the production, access and distribution of content in the digital environment. Europe is now a more attractive place to invest in creation and digital.

It should be evident that we do not share this positive assessment of the directive. If the directive was indeed such a balanced piece of legislation as the commissioner claims, then there would not be a need to organize stakeholder dialogue to patch up its worst inconsistencies.

In the second half of her opening remarks Gabriel indirectly concedes this by expressing the hope that the upcoming stakeholder dialogue will put aside “past divisions” to develop a new approach to the “relationship between copyright and digital”:

This new regulatory approach is really a new paradigm, a new way of working. It can be accompanied by a shift in the way stakeholders approach the relationship between copyright and digital. But for that, it will be necessary to learn to work together, beyond past divisions.

[…] The directive and Article 17, adopted after a debate that is as democratic as it is inclusive, is the answer to these 25 years of tension. […] I invite you to seize the opportunity offered by the new directive. I invite you to turn the page of 25 years of litigation and work together.

A first exchange of (old) positions

If the further proceedings during last weeks meeting are any indication of the future interactions during the stakeholder dialogue, then the Commissioner will most likely be disappointed. During the remainder of the morning session representatives of rightholders, collective management organisations, creators and online platforms presented their well known positions and grievances. Rightsholders highlighted a wide range of issues they face when trying to conclude licensing agreements with online platforms. On the other hand representatives of platforms highlighted the efforts platforms undertake to license works from rightholders and the efforts they undertake to remove content at the request of rightholders. All in all, the morning exchange did not produce any new insights (You can re-watch the proceedings via the archived live stream between 00:21:00 and 02:34:00)

After the lunch break it was time for the representatives of user groups and fundamental rights’ organisations to give our perspective on “the current practices of cooperation between rightholders and online platforms in relation to copyright protected content”. The key message of our statement (see the transcript below) as well as the representatives from EDRi, BEUC, Liberties, CDT, Save the Internet, Young Pirates Europe was that the filtering measures required by Article 17 are fundamentally incompatible with fundamental rights of users (especially freedom of speech and right to fair trial) and that the current voluntary uses of filtering technology (such as YouTube’s Content ID) are illustrative of their inability to safeguard user rights. To be fair, none of the arguments brought forward by our side were particularly new either (You can re-watch all of the statements from user rights organisations via the archives live stream between 03:45:00 and 04:27:00)

These presentations were followed up by a discussion that served no clear purpose other than to further illustrate the existing disagreements. We made the suggestion that at least for the music sector there was a relatively clear way forward in the form of compulsory collective licenses for online platforms, which lead to vehement opposition from the representatives from music industry rightsholders (music publishers and record companies), at which point the chair abruptly declared the meeting of the stakeholder dialogue closed.

If the Commission really believes that this stakeholder dialogue represents “a new paradigm” that allows stakeholders to leave “past divisions” behind and “learn to work together’, then’ the Commission will need to step up its game and provide more structure for the upcoming meetings. After a day wasted with self-serving statements from all sides it is time to shift to different mode of working that addresses the very real shortcomings (how to address the reliance on filtering technology that is not capable of respecting users rights?) and open questions (how to best facilitate licensing in a way that ensures that the revenues end up with creators instead of intermediaries of all sorts?) posed by Article 17. The next possibility to do so will be on the 5th of November.  

COMMUNIA statement at the first meeting of the Stakeholder Dialogue (transcript lightly edited): 

Ok. Thank you. So my name is Paul Keller I represent COMMUNIA which is an association of organizations which have as their aim the protection of the Public Domain. For us our conception of the public domain as a fairly wide one which includes the user rights created under exceptions and limitations. And so that’s been our focus during the legislative process and that’s also our core interest, together with BEUC and others in this discussion. 

So first of all thanks for giving us the opportunity to contribute to this discussion. 

I want to reflect briefly on what we heard this morning. So this morning sounded very much like a discussion between different industries who were mainly concerned about fairness in licensing and transparency seemed to be a very big issue for everybody involved. Basically almost everybody complained that they had incomplete information positions and couldn’t really judge if the offers they were making or getting were actually fair. And I think we might want to stress that aspect: the more we can solve with licensing the less we need to worry about the filtering part and the blocking part of this. 

It was also interesting that that specifically from the industry we heard a lot of speakers who presented these platforms as a way of accessing information and I think we need to make sure that this is not about users having access. Most of the platforms we talk about are not distribution channels for an industry to reach an audience. These are platforms where users interact with culture where they share culture where they co-create culture. 

And I think we also heard a couple of statements from some of the platforms which pointed to these difficulties where there is no clear lines between creators or rights users and rights holders and some people seem to argue to have it a little bit both ways: There were people basically saying we want very strict filters if it’s about our material and we want no over blocking if it’s about other people’s materials. 

And this is the reality of the situation that we’re dealing with this is not just about distributing protected works as efficiently as possible to users. This is a different world that we live in where people engage with this content and where use and reuse and creation and use of works flow into each other. And I think that’s important that we keep that in mind. 

With regards to your question about the current practices: Generally we have a feeling that the current practices don’t work very well. Both in that we see where filtering technology is used there are clear shortcomings in – and I think pretty much everybody pointed to that so far – in being able to make these context dependent determinations where it is about the use under exceptions. 

But we also know that there are a lot of problems with the rights information that goes into these filters and unjustified claims to to works and the inability of these platforms to actually look through these different levels of uses. Like the example that was given that if a song is used in a broadcast and then it’s taken down because the broadcaster claims it is infringing. We see these stacked claims a lot and we see that for example public domain material gets taken down, that freely licensed material gets taken down just because somebody has included these materials in something else and then makes unjustified claims based on that. 

Also the point made by the German consumer association that we need really good rights information that is brought together in a transparent way is a very important thing. So these things can be challenged because the quality of the information that we’re building these systems on is not very good at the moment. 

And then the last thing which I think we are we are very unsatisfied in many users unsatisfied and that was also hinted to is that at the moment these systems get employed, they are private ordering mechanisms where we at the moment do not have any regulation in Europe that provide clear guidance what rights users have in contesting this, how to interact with like unjustified takedowns. It was I think illustrative that we are here at at the European Commission and every speaker from the platforms when they described their  redress mechanisms referred to the Digital Millennium Copyright Act as the basis for this and not some European standard. And to that degree I think we’re actually very happy that Article 17, the latter or part of it, defines to some degree these standards, it defines redress mechanisms and that’s something that we are obviously interested in getting a clearer understanding how we can use this to provide reliable protections for users in the digital environment that these interactions between rights holders and platforms do not happen to the detriment of user rights, the freedom of expression in the political sense but also the freedom of creative expression which happens on these platforms.

I think one other thing which I haven’t really heard and this is maybe talking more to the second row over there to the member states: From our perspective as users it is also very very important that these are strong guidelines which lead to harmonization between the member states. The worst case scenario which we can imagine is that these measures implemented and then the redress mechanisms vary across member states. I would really hope that we, whatever we come up here, that is something that gets very very uniformly implemented across the member states because we’re talking about users rights and citizens of the European Union should not have different rights depending on where they access the Internet or where they are a citizen of the country. So that is that is clearly a big challenge but that’s something we should keep in mind. 

And then finally maybe a suggestion for something that could also be discussed. We heard a couple of people in this room worrying about if their sector was included in the definition or not. I didn’t really hear anybody saying that the definition of services is part of this discussion but it might help us to have at least a working definition for the purpose of this meeting to have an understanding like what we’re actually talking about because the directive recital 62 and then the parts they talk about startups send very conflicting statements. In the recitals it is this is basically only about big platforms and in the text of the article itself it suddenly talks about startups that don’t exist for three years. So we might want to have some clarity there as well.

Thank you.

King Charles II of England addresses members of the Estates General, 1660, Theodor Matham, after Jacob Toorenvliet, 1660
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