“User rights must be protected already at upload!” European Commission on Art 17 DSM Directive
At the end of July European Commission published a Targeted consultation addressed to the participants to the stakeholder dialogue on Article 17 of the CDSM Directive (as previously reported at IPI). Therein, the Commission presented its understanding of Article 17 and put forth guidance for its implementation, underlining the importance of user rights protection already at the time of upload.
In the consultation document the Commission, alongside 18 questions aimed at stakeholders who participated in 6 dialogues between October 2019 and February 2020, presented important clarifications in regards to Article 17. Regarding the nature of the right, introduced with Article 17, the Commission explained that it is a special (sui generis) right with respect to the communication to the public right contained in Article 3 of the InfoSoc Directive. This will have significant implications on Article 17 implementation, as it will lead to member states having more freedom in deciding how online content-sharing service providers (OCSSPs) can obtain rightsholders’ authorisation for communication to the public.
Commission’s most important clarification concerns a safeguard in Paragraph 7 of Article 17, which states that the use of any automatic content filters “shall not result in the prevention of the availability of works or other subject matter uploaded by users, which do not infringe copyright and related rights.” The Commission emphasised that this safeguard must be respected already at the time of upload and that it is not enough to just provide a complaint mechanism that would enable only ex post content restoration. By doing so, the Commission made it clear that any unsophisticated content filters that are unable to identify whether uploads are compatible with any of copyright and related rights exceptions (such as parody exception) are not compatible with Article 17 demands.
Consultation documents also contains the Commission’s proposed mechanism for users rights protection, where automated blocking would only be allowed for “uploads likely to be infringing” whereas other uploads would remain on the platforms’ servers and could be taken down only upon rightsholders’ express demand, and only when the platform itself deemed the specific upload to be infringing. A clear problem with such a mechanism lies with the Commission’s failure to elaborate on conditions for uploads to be considered as “likely to be infringing”. This means that such conditions are to be defined by each member state. These conditions will be crucial in determining whether automated content filters are de facto overblocking content or not.
Despite certain drawbacks, the consultation document is certainly a step in the right direction, especially, because it confirms that Article 17’s purpose is to provide sufficient users rights protection and not just to prevent content from being uploaded to online platforms.
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