Yesterday, we held the first 2021 edition of our COMMUNIA Salon. This virtual edition focused on the role of ex-ante user rights safeguards in implementing Article 17. This is certainly the most controversial question that has arisen during the national discussions of the implementation of Article 17, and one that will likely be discussed long after the deadline for implementing the new Copyright Directive is over. During the event we heard the Commission’s views on the topic, recollected the legislative history of Article 17(7), and learned about two implementation proposals that are currently being discussed in Germany and Finland. If you have missed the event you can watch a recording of the presentations and the subsequent discussion here:
The event was kicked off by Marco Giorello (Head of Copyright Unit, European Commission), who started by recalling that the main objective of Article 17 is to foster the conclusion of licensing agreements between rightholders and online platforms, and not to provide an enforcement tool to rightholders against illegal content. He then summarized the Commission’s views on the practical application of Article 17(7), clarifying that this provision requires online platforms to consider legitimate uses ex-ante and that it is not enough for Member States to give flesh to user rights by simply relying on ex-post redress and complaint mechanisms. He further acknowledged the struggles in finding a solution to implement Article 17 in a balanced way, pointing out that this is probably the first time that the EU lawmakers are trying to find a way to respect fundamental rights in a machine-to-machine environment.
In the following presentation, former MEP Felix Reda took us through the history of the discussions of Article 17 in the Parliament, highlighting that, although the Parliament had not put much thought into how Article 17(7) would be implemented in practice, definitely the intention of those who voted in favour of the Directive was to have ex-ante protections. He reminded the participants that a former version of the text, according to which the obligation to protect legal content was satisfied as long as there was a complaint and redress mechanism in place, was rejected by the Parliament. He stressed that it was this combination of Article 17(4) and (7) that was able to get an approval from the Parliament, and that there was no doubt that there was an expectation from MEPs that legitimate uses would not be blocked at upload.
Viveca Still (Senior Copyright Advisor, Ministry of Culture, Finland) presented the current government proposal to implement Article 17 in Finland. She pointed out that the Finish model, as it currently stands, mainly relies on ex-post corrective measures for wrongful blocking (such as compensation for the harm caused in case of unjustified blocking) to have an ex-ante (deterring) effect. Nevertheless, the proposal does foresee a solution to give some consideration to user rights at upload: it requires rightholders to assess whether the use of their content is covered by a copyright exception or limitation or whether the use is allowed under contract, before they can issue a blocking request.
In the final presentation, Tobias Holzmüller (General Counsel, GEMA), emphasized that licenses are the best way to protect user rights and that he expects that the issue of blocking will become less relevant in the next few years, as more licenses start emerging in the market. He also drew attention to the fact that the issue of potential overblocking only affects certain types of content (press publications and audiovisual content), where the business model of the producers of that content conflicts with the wide availability of such content on online platforms. He then presented the latest proposal that is being discussed in Germany, which importantly tries to be specific about what best efforts mean in an environment dominated by freedom of expression on one side and proprietary rights on the other. He explained that the proposal contains ex-ante protections for content that respects certain criteria, while exempting both the platforms and the users from liability until a human review takes place. He further stated that, according to the rumors, the government is also trying to find a mechanism to give owners of time-critical content (such as sports and news content) some type of control to bring their content down immediately, when they have proven not to abuse this mechanism in the past.
We would like to thank everyone who participated in our event and we are looking forward to organising another edition of the COMMUNIA salon in the near future.