On Thursday we held the second COMMUNIA Salon in 2021. This time we discussed the German governments’ proposal for implementing the controversial Article 17 of the CDSM Directive. Taking place less than three months before the implementation deadline for the directive, this edition zoomed in on one of the most advanced legislative efforts to implement the directive (the Netherlands, which adopted their implementation law at the end of last year is the only Member State that is further along in the legislative process). The discussion was kicked off by a presentation by Dr Thomas Ewert and Dr Martin Bittner from the German Federal Ministry for Justice and Consumer Protection, who have been responsible for drafting the legislation. Their introduction presentation, focusing on the legislative history of the draft and its core mechanism, can be found between 02:30 and 28:50 in the video recording:
One highlight of the presentation was the revelation that the Ministry has also filed an amendment to its own proposal, that expands the transparency provisions contained in the proposal. The proposed amendment would allow access to “data on the use of procedures for the automated and non-automated recognition and blocking of content to authorised parties” for scientific research purposes. In the light of our repeated calls for more transparency when it comes to the use of automated content recognition, this is a small but significant improvement of the proposal.
The initial presentation was followed by perspectives from Marco Pancini (YouTube), Xavier Blanc (AEPO-ARTIS) and Felix Reda (GFF) who highlighted different aspects of the legislative proposal. Speaking from the perspective of large pan European platforms Marco Pancini expressed concerns about the variation of legislative approaches in the Member States with Germany marking one end of the spectrum. According to him this will lead to fragmentation of the digital single market and create substantial compliance burdens for all types of platforms.
Speaking from the perspective of performers, a group of rightholders that has an interest to see as much use of their works on as many platforms as possible (and does not necessarily benefit from being able to selectively control use of their works), Xavier Blanc called the German proposal “impressive in its ambition” and lauded it as an effort to find a balance between the diverging interests involved in the implementation discussion. He also expressed concerns regarding the practical application of the minor use thresholds contained in the directive.
Finally, Felix Reda pointed out some of the key shortcomings of the proposal that has been sent to parliament. These include the ridiculously short threshold of 160 characters for minor uses of textual works (the fact that “spaces are not included” according to the Ministry officials does not make this any better, as sometimes the mere title of a work will pass that threshold) and the requirement that uses must consist of less than 50% of an original work to be protected from automated filtering. In the same vein, he pointed out that the proposal in its current form does not offer any possibility to flag contractually allowed uses (such as uses authorised by a Creative Commons license) as legitimate. Felix Reda also pointed out that while the proposal contains sanctions against abuse, it is missing the ability for users to obtain structural remedies. Such remedies are being proposed by the Austrian Government.
The presentation and discussion once more underlined that, while flawed in some aspects, the German implementation proposal gets many things right. As observed by multiple speakers, the key characteristic of the proposal is that it actually tries to identify mechanisms for reconciling the conflicting obligations contained in Article 17 of the directive. As such it sets out a path for how Article 17 should be applied in practice, where other proposals don’t go any further than re-stating the conflicting objectives contained in the directive. As observed by Felix Reda, the proposals also make it clear that, contrary to earlier promises by the German government, upload filters are a fact that users will have to deal with.
That being said, the questions if the use of automated upload filters is in compliance with fundamental rights will need to be answered by the CJEU, a decision that is expected only after the German proposal is likely to be adopted (late May).