“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.
On 23rd of November, 2021, the European Commission has published two reports in the field of copyright, as required by Directives 2014/26/EU (CRM Directive) and 2019/790 (DSM Directive). They are supported by two studies: Study on emerging issues on collective licensing management in the digital environment, and Study on selected issues relating to the application of the CRM Directive.
A new book “Law and Artificial Intelligence: Issues of Ethics, Human Rights and Social Harm” was published (Institute of Criminology at the Faculty of law in Ljubljana, 2021), the editors of which are prof. dr. Aleš Završnik and dr. Katja Simončič. The author of one of the articles is also dr. Maja Bogataj Jančič, LL.M., LL.M., who wrote an article on the topic of whether artificial intelligence can be an author of a copyright work.
Jožef Štefan Institute is organising GO-DIP workshop series, first of them coming on November 19th, 2021 is revolving around software IP and data agreements. The GO-DIP project aims to increase the competencies of knowledge generators and intermediaries. At 15.10 dr. Maja Bogataj Jančič, LL.M., LL.M. will be lecturing in the Workshop: Development of a checklist for model digital IP agreements. Welcome!
2nd GPAI Summit will occur from 11-12 November, 2021 in Paris, France. Leading international AI experts from civil society, academia, industry and governments, including ministerial-level delegates from GPAI’s Membership, will come together for GPAI’s annual event. This public-facing event will include reporting on the ten Working Groups’ study topics, including the reporting of Data Governance Working Group (DG WG). Public conferences will be broadcasted live on GPAI’s Youtube channel. Welcome!