Ongoing discussions on art. 17 EU Copyright Directive

In February, the sixth meeting of interested parties was held to decide on the application of the new Copyright Directive and above all to standardize the rules relating to the disputed art. 17, the former “infamous” art. 13.

Let’s take a step back: DIRECTIVE (EU) 2019/790 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 17 April 2019, on copyright and related rights in the digital single market (amending Directives 96/9 / EC and 2001/29 / EC), in the second chapter, provides in Article 17 paragraph 4, the following: «Where no authorisation is granted, online content sharing service providers shall be liable for unauthorised acts of communication to the public, including making available to the public, of works and other subject-matter protected by copyright, unless they can prove that they have done so:
a) they have made every effort to obtain an authorisation, and
b) have made every effort, in accordance with high standards of professional diligence, to ensure that no specific works and other materials for which they have received the relevant and necessary information from rightholders are available; and in any event,
c) have acted promptly, after receiving a sufficiently reasoned notice from the rightholders, to disable access to or remove the reported works or other materials from their websites and have made every effort to prevent future uploading in accordance with point (b)
».

The meeting took place precisely on the theme of the responsibility of platforms for online content uploaded by users: the problem, which still divides the intervention groups, concerns the technology used for automated filters, which do not have a purely “human” ability to assess the legality of works protected by copyright. It is therefore necessary to find a fair balance between creators and holders of the various rights and their interests, on the one hand, and the interests of users, on the other.

Unfortunately, the discussion did not even mark a step in the right direction, as the entertainment industry majors are basically asking users to “trust” them and their choices, beyond the operation of the automated blockade! The platforms would become “arbiter” of their choices, not holding back, according to their statements, neither freedom of speech nor other legitimate uses.

The Commission did not accept this “hegemony” of platforms, since it considered it right to distinguish which contents could be automatically blocked (whole films on the net or whole music albums), which instead need a more “pondered” evaluation, perhaps by activating a counter, on which the user can upload documentation proving the “legitimacy” of the upload; ex post, if the declaration is valid, nulla quaestio, but if it were not “correct” or “legitimate”, the blocking of the content would be activated.

There are two types of circumstances:

  • correct declaration and no objection by any right holder, and therefore “uploaded”,
  • correct statement but challenge of the rightful owner and then it will be the responsibility of the platform to decide whether to upload the content or not.

This is the proposal put forward by Communia, which was promptly joined by Studio 71, which, while maintaining the operation of automated filters, to “govern” the amount of online content, creates a system of further control, to the benefit of freedom of expression and creativity of users. A French statistical report reported that, of the 33% of those who uploaded material on the platforms, 13% had at least one upload blocked; among them, 58% of those to whom an upload was blocked contested the last blocking decision, with a favorable decision (i.e. for unblocking) equal to 56%. This brings out an objective “inability” of evaluation, of automated filters!

The meeting ended with a de facto nullity, and it is expected to be postponed to a further discussion that can evaluate concretely and de facto, an objective and fair operation, which does not rely solely on automated technology or self-determination of the platforms.

All Rights Reserved

Raffaella Aghemo, Lawyer

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Innovative Lawyer and consultant for AI and blockchain, IP, copyright, communication, likes movies and books, writes legal features and books reviews

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Raffaella Aghemo

Raffaella Aghemo

Innovative Lawyer and consultant for AI and blockchain, IP, copyright, communication, likes movies and books, writes legal features and books reviews

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