As of January 2020 there are two Member States that have published legislative proposals for the implementation of Article 17 CDSM. In July the Netherlands published a proposal for an implementation law for public consultation that implemented all provisions of the CDSM directive. Then, in early December, France published the proposal for a project for a law on audiovisual communication and cultural sovereignty in the digital era that implements some of the CDSM directive provisions, including Article 17 (see a first analysis of the French proposal by Felix Reda here).
These first implementation proposals are coming from a main proponent of Article 17 (France) and one of the most vocal opponents (Netherlands), and allow us to get a first impression of how Member States across the EU are likely going to deal with this controversial article. Irrespective of the different positions by France and the Netherlands during the directive negotiations, the implementation proposed by both Member States do not diverge much from each other.
Both the laws stay very close to the text of the directive: The French implementation largely follows the order of the different sections of the directive via two nearly identical articles, one dealing with copyright (L137) and the other dealing with related rights (L219). The Dutch implementation law follows its own structure and introduces 3 articles (29c, 29d and 29e) that deal with copyright and one article (19b) that declares these articles to also apply to neighbouring rights.
The general approach chosen by both legislators is to transpose the text of Article 17 (paragraphs 1-6 and 8 and the definition of online content-sharing service providers (OCSSP) from article 2(6)) as closely as possible into their national law.
Neither of the legislators transposes paragraph 17(7) (that introduces crucial safeguards protecting uses under exceptions and limitations) and both only transpose parts of paragraph 17(9) (that imposes an obligation on OCSSPs to operate a complaint and redress mechanisms for users in the event of disputes over the takedown and staydown procedures). None of the legislators provide any further guidance on how platforms are supposed to meet the requirement to make “best efforts to obtain authorisation” from rightholders.
There are also a small number of notable deviations from the text of the Article in the Directive:
- The Dutch law includes a clause that allows the legislator to impose additional rules for implementing the article, via an administrative order. This provision seems designed to take into account the outcome of the EU-level stakeholder dialogue and means that it is difficult to fully assess the Dutch implementation at this stage.
- The Dutch law does not transpose the first sentence of paragraph 8 (the provision dealing with general monitoring) while the French law contains a clause that states that OCSSPs “shall act only on the basis of relevant, necessary information or notifications received from rightholders”.
- The French law explicitly includes “indirect commercial advantage” in the definition of OCSSPs (in the directive “indirect” is only mentioned in a recital).
- The French law provides that the Conseil d’Etat can issue a decree on the modalities for defining “large amount of works” in the definition of OCSSPs.
- The French law includes language that implies that OCSSPs also need to obtain authorisation for acts of exploitation other than acts of communication/making available to the public (this would result in a substantial expansion of the scope of the Article).
As noted above both proposed implementation laws only implement parts of the user rights safeguards contained in paragraphs 17(7) and 17(9) of the directive.
With regards to paragraph 17(7), both proposed laws ignore the first part with states that the collaboration of OCSSPs and rightholders, in line with paragraph 17(4), shall not lead to the prevention of the availability of content that does not infringe copyright. As a result, neither of these laws introduces any requirements on OCSSPs and/or platforms to ensure that non-infringing works are not blocked by overly aggressive upload filters.
None of the implementation laws contain any provisions based on the second part of Art 17(7), which requires that users “are able to rely on” quotation and parody exceptions. While both France and the Netherlands have existing quotation and parody exceptions in their copyright acts, it seems questionable if this also means that platform users can effectively rely on them in all circumstances, since both countries copyright laws allow technological and contractual override of these exceptions.
Both legislators selectively implement elements of Article 17(9). Most notably neither of them transposes the first part of the penultimate paragraph (“This Directive shall in no way affect legitimate uses, such as uses under exceptions or limitations provided for in Union law”) and stick to mechanically implementing the elements of the complaint and redress mechanism contained in the first two paragraphs of 17(9). However, both of them limit the requirement for human review of decisions to disable access to or remove uploaded content to decisions that are challenged by users.
There are also a few relatively small differences between the two implementation laws:
- The Dutch implementation law does not transpose the requirement that rightholders need to “duly justify” their requests (they only have to be heard by the OCSSP). The French implementation law only partially transposes this requirement, since it does not cover initial requests but only subsequent requests to block/remove after a user complaint.
- The French implementation law designates ARCOM (HADOPI successor) as the entity providing the out of court redress mechanism required by paragraph 17(9). The Dutch implementation law requires OCSSPs to make sure that users and rightholders have access to an impartial out of court redress mechanism without specifying an entity.
It is worth noting that this selective approach to implementing the user rights provisions contained in Article 17 has already been rejected by the European Commission. In its answer to a parliamentary question by MEP Marcel Kolaja, the Commission has made it clear that Member States need to impose on OCCSPs the user rights safeguards contained in the directive as part of their national implementations. The current French and Dutch proposals fail to do this.
Assessing the proposed implementations against COMMUNIA objectives
In October 2019 we formulated five objectives for minimising the harm caused by Article 17. These are:
- A targeted definition of OCSSPs.
- Ensuring wide availability of licenses.
- Removal requests via a centralised public database.
- Broad spectrum of exceptions and limitations.
- Strong default protection of user rights.
Both proposed implementations fail to meet most of these objectives:
- Neither the French or the Dutch definitions of OCSSP further narrow down the type of services that will need to comply with Article 17 of the Directive. Notably they do not make use of the additional criteria contained in recital 62, which clarifies that the aim of the Directive is to target ad-supported engagement-driven service providers that play an important role in the online content market by competing with other services for the same audiences.
- Neither of the proposed implementation laws include any provisions on the modalities of licensing OCSSPs for the use of works uploaded by their users. In the absence of such provisions, direct licensing and voluntary collective licensing are the only possible options.
- Neither of the proposed implementation laws include any provisions regarding the modalities that rightholders have to follow for communicating the relevant and necessary information about works that they want to be blocked/filtered to OCSSPs.
- Both France and the Netherlands already have quotation and parody exceptions in their national acts as required by paragraph 17(7). While the Dutch copyright act also has an incidental inclusion exception, the French act does not have such an exception. In addition both laws likely do not meet the requirements that platform users can effectively rely on these exception in all circumstances as both copyright acts allow technological and contractual override of these exceptions
- Neither of the proposed implementation laws impose any requirements on OCSSPs to ensure that user rights (uses under exceptions) are not impacted by any preventive measures implemented in line with paragraph 17(4). Neither of the proposed implementation laws afford default protection to uses that are potentially covered by an exception or limitation.
In the case of the Netherlands the above analysis is not final since the ability to provide additional rules via administrative order means that some of the missing aspects could be introduced by the legislator after the implementation law has been adopted.
The Dutch and French implementation law proposals show that national legislators cannot be trusted to implement Article 17 in a balanced way that includes the hard-fought user rights safeguards that are part of the final compromise that was found between the EU legislators after more than two years of bitter discussions.
Under pressure from rightholders, national legislators are focusing their attention on those parts of the Article that require rightholders and platforms to cooperate with each other to either license or filter. Without the user rights safeguards in the latter part of Article 17, such cooperation will undermine users freedom of creative expression. Not implementing the user rights safeguards is a glaring act of disregard of the outcome of the EU legislative process, and will need to be challenged once these legislative proposal reach the national parliaments.