When the Austrian government published its implementation proposal for Article 17 in December 2020 we called it “the most realistic implementation proposal yet“. On the 3rd of September the Austrian Ministry of Justice published a draft version of the implementation law covering all provisions of the CDSM directive, which includes revised provisions for implementing Article 17. And while this revised proposal maintains much of the approach contained in the previous draft, it contains some unfortunate regressions that undermine the user rights protections contained in the original draft.
Earlier this week, together with epicenter.works, Gesellschaft für Freiheitsrechte, Wikimedia Austria, Creative Commons Austria and the Cultural Broadcasting Archive we have submitted extensive comments in response to the new implementation draft (PDF, in German) which we summarise below.
Article 17: A combination of the German implementation and the worst ideas from the Commission guidance
One of the strongest elements of the original implementation proposal was that it combined some of the approaches to safeguarding user rights and to preventing overblocking first put forward by the German Ministry of Justice in its implementation proposals with an attempt to stick as closely as possible to the text of the directive. Where the German implementation proposal (which in the meantime has become law) introduced the provisions implementing Article 17 in an entirely new act, the Austrian proposal includes them into the existing copyright act. The new proposal both maintains this approach and continues to follow the lead of the German legislator when it comes to the user rights safeguards. Unfortunately it combines this approach with introducing some of the worst elements of the Article 17 implementation guidance issued by the Commission earlier this year, the so-called “earmarking” provisions for commercially valuable works that allow right-holders to opt-out of most user rights protections.
For the most part the Austrian proposal follows the lead of the German legislator. The minimum threshold for the use of fully automated filters contained in the proposal is the same as the one contained in the German implementation law: 15 seconds for audio and video, 160 characters for text and 250Kb for images. These thresholds are lower than what was included in the previous proposal, which is not unexpected since the Austrian legislator seems to have clearly decided to adopt the de-facto standard set by the German implementation. Seen in this light it is disappointing to see that the Austrian legislator has not fully followed the German approach here. Where the German law excerpts single images from the rule that uploads should be considered legitimate only if they do not use more than half of an original copyright work, the Austrian daft misses such a clarification. This would mean that memes and other forms of transformative content based on visual works are not protected against overblocking. It remains unclear how the requirement not to use more than half of a work can ever be meaningfully fulfilled in the case of an image.
Other elements where the Austrian draft falls behind the standard set by the German legislator are the protection of legacy content from automated retroactive removal, provisions protecting openly licensed and works in the public domain from wrongful blocking and the failure to include a collective redress right for users’ organizations to file cases against platform operators that systematically fail to meet their obligations to protect legitimate uses, which was included in the first draft of the Austrian proposal and has disappeared since. Like the German legislator, the Austrian Ministry of Justice regrettably continues to insist on including the new neighbouring right for press publishers within the scope of Article 17, even though the directive is clear that it is in fact out of scope.
A new exception for parody, pastiche and caricature that only applies to uses on large platforms
Maybe the most problematic aspect of the new Austrian proposal is how it would implement the exception for caricature, parody and pastiche. Unlike many other EU member states, the Austrian copyright act currently does not contain such an exception based on the optional exception contained in article 5.3(k) of the InfoSoc directive. Since Article 17(7) of the DSM directive makes this exception mandatory, the new draft now proposes to implement such an exception, but only for uses of works that are made available via the types of platforms covered by Article 17. This approach which would result in a situation where using a work for parody on YouTube would be legal, while the same use of the same work on a non-commercial platform or a private website would be illegal, defies belief. The DSM directive itself makes it explicit that the provision in Article 17(7) is there because these exceptions safeguard users’ fundamental rights, and it is hard to understand how the Ministry of Justice can come to the conclusion that fundamental rights deserve protection only on commercial platforms.
This is why back in 2019 more than 60 eminent copyright scholars remarked that “a rational national lawmaker implementing the E&Ls in Article 17(7)[…] should take this opportunity to fully harmonize the respective national E&Ls beyond uses concerning [online platforms]”. In other words, limiting the scope of the new exception to uses on online platforms makes no sense and should be fixed before the draft becomes law.
Other bits and pieces
The implementation proposal contains a number of other shortcomings that need to be fixed to bring it in line with the requirements of the directive. This includes an attempt to subject the new press publishers’ right to compulsory collective management. This is problematic as it would effectively prevent press publishers from granting licenses (including open licenses) for free if this aligns with their chosen business model.
A final problematic element of the new implementation proposal is the fact that it requires remuneration for the use of out-of-commerce works (OOCWs) under the new fallback exception that allows cultural heritage institutions to make OOCWs in their collections available when there is no representative collective management organisation that could issue a license. Making such uses subject to remuneration goes against the logic of the out-of-commerce-works provisions introduced by the directive. By definition, any remuneration paid for the use of the fall-back exception would have to go to a collective management organisation that is not representative of the authors of the OOCWs in question. Consequently, it would be unable to pay the remuneration to the right category of authors. The remuneration requirement would make the use of the fall-back exception more difficult, while failing to compensate the actual authors of those works. It is therefore an unnecessary and unjustified barrier to the use of out-of-commerce works.
It is generally expected that the Ministry of Justice will introduce a revised draft (that will hopefully contain a number of the fixes that we have proposed in our submission) into parliament later this year.