EU member states and stakeholders should expect 'soon' Commission's guidance on Article 17

By Emmanuel Legrand

The  European Commission is expected to deliver "soon" its guidelines on Article 17 of the Copyright Directive, taking into account the objections raised by stakeholders to the original draft circulated by the Commission, following a thorough dialogue with all parties.

  The issue was addressed by the Commission in a 15-page paper titled 'Making the most of the EU’s innovative potential — An intellectual property action plan to support the EU’s recovery and resilience." In the area of copyright, the Commission said in the report it is "focusing on supporting the timely and effective transposition and implementation of the two newly adopted directives on the modernisation of the EU's copyright framework."

  Key to this transposition is the fate of Article 17 of the Copyright Directive on the liability of internet service providers for the use of copyright-protected content by user-uploaded content sharing platforms. In the report, the Commission said it has "carried out an extensive stakeholder dialogue to gather the views of relevant stakeholders on the main topics related to this article's application" and will "soon" issue guidance to support Member States in implementing this provision.

Bring back balance in Article 17

  The stakeholder process has been criticised by a coalition of creative industries' organisation that have expressed concern that the initial intent of Article 17 was under threat by the Commission, which is understood to have contemplated more exceptions to the scope covered by Article 17 that were not in the initial legislation.

  The question of Article 17 was also raised during a hearing of the Commission by the European Parliament's Culture committee chaired by MEP Sabine  Verheyen. "How is the Commission going to bring back balance in Article 17 so that the culture sector can protect their works, which is the very reason of Article 17, and [ensure] that the obligations of the platforms are not watered down?" asked Polish MEP Tomasz Frankowski to Roberto Viola, Director General for Communications Networks, Content and Technology at DG CNECT during the hearing.

  Viola said the Commission was asked to facilitate the dialogue between stakeholders on Article 17, one of the most controversial provision in the Copyright Directive. "This is what we have done," he said. "Of course, you can imagine it is a complicated dialogue. It was a transparent dialogue so that everybody could express its point of view. This is very important because Article 17, it is a balance. It is a balance between the right of rights holders to protect their works but also for users to express their [right to] free speech and freedom, which are actually protected by the exceptions that are now being harmonised at European level. What the Commission is trying to do is ensure that this balance is correct. It is part of the dialogue and different views have been expressed."

Take into account negative comments

  Viola said that following the circulation of a draft proposal among stakeholders, "some reactions have not been positive to this draft and we will take that into account, of course." The comment from Viola was an acknowledgment that the draft probably skewed towards more exceptions and would be revised. Viola said that the Commission has "a duty to listen to everyone, the civil society, interest groups, whoever has a point of view," but he also added that "for sure the scope of the Directive is to support the creative sector in the digital environment so this is a very important element. The creative sector should be listened to."

  Meanwhile, the Commission report on IP is calling for "the capacity of law enforcement authorities ... to be substantially strengthened" in order to fight IP infringement and piracy. "Counterfeiting and piracy must become a higher priority," said the Commission in the document drafted to the attention of the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions.

Tackle new forms of infringement

  Most of the report deals with patent and trademarks, but on the copyright field, the report suggests that "new forms of IP infringements have arisen on the internet, such as cyber theft of trade secrets (accounting for an estimated €60 billion of losses in the EU), illegal internet protocol television (IPTV) and other forms of illegal (live) streaming." 

  For the Commission, these new forms "raise particular challenges for manufacturing, the creative and cultural industries as well as the sports sector."

  The Commission said that before the end of the year, it will provide new rules to "clarify and upgrade the responsibilities of online platforms and remove disincentives for their voluntary actions to address illegal content (goods or services) they intermediate."

  It will also use the forthcoming proposal for the Digital Services Act package to "harmonise a set of specific, binding and proportionate obligations for digital services, enforced by a strengthened supervisory framework."


> In related news, the Music Industry Forum — which represents labels, publishers and the live music sector in Germany — has come in support of a group of 650 artists who have criticised the proposals by the Federal Ministry of Justice (BMJV) to transpose the European Copyright Directive, in particular Article 17. In an open letter to policy-makers, titled "Don't play copyright against us!", the artists are claiming that the proposed draft from the BMJV will result in a watered down Directive and the "devaluation" of artistic works if there are too many exceptions to copyright.

  The draft calls for exceptions for the use of up to 1,000 characters of text, a picture under 250k, or 20 seconds of music, which German artists object to. "Music up to twenty seconds, remixes, mash-ups, samples and so on — everything should be usable for free, without a license," reads the letter (translated from German). "Instead of securing our rights, we get legal uncertainty; instead of a harmonised European market for licenses, we get a German self-service shop in which our works are given away to anyone who says 'pastiche'."

Unacceptable draft

  The Music Industry Forum has lent its full support to the artists' claims. The Forum regroups the Federal Association of the Music Industry (BVMI), the Association of Independent Music Entrepreneurs (VUT), the  German Music Publishers Association(DMV), the Federal Association of the Concert and Event Industry (BDKV), the Association of Music Venues in Germany (LiveKomm), and the Society of Music Merchants (SOMM).

  For Florian Drücke (pictured, below), Chief Executive of BVMI, the issue at stake here is the responsibility of online platforms. "The platforms' obligation to acquire licenses for copyrighted content is explicitly provided for in the European Directive," he explained, but the drafts from the Ministry of Justice "ignore it in an unacceptable manner." Drücke called for the "correct implementation" of the Directive.

 

 The sentiment is echoed by Mark Chung, Chairman of the Board of VUT. "We fully support the demands of the artists," said Chung, who added that the Directive relies on fair license agreements and on a balance between the interests of all parties involved. However, the German proposal does not achieve this goal, he said. "The fact that the Justice Minister is sacrificing the rights of artists and the creative industries in order to ultimately strengthen the interests of Google and Facebook is a declaration of war on us all," reacted Chung.

Expropriating authors

  Götz von Eine, a board member of the DMV, said the letter was a reaction to the "fait accompli" from the Ministry of Justice, which he said is "almost tantamount to expropriating the authors." He added: "A business model like TikTok, that rights holders have only just licensed, becomes license-free in one swoop."

  However, TechDirt reported that a group of 48 German artists using social media, and who together have around 88 million followers on YouTube, Instagram, Twitter, Twitch and TikTok, took a very different view and supported the proposal from the Ministry of Justice. "This so-called 'legalisation of memes' shows that the politics of [the German government] is close to how reality operates. What defines our culture is always evolving, also through digitisation. Memes have been part of our culture for many years and are finally recognised by this ministerial draft."

  For TechDirt, the artists "who wish to deny an Internet user the right to draw on copyright material for memes, parodies, mash-ups etc. forget that they too draw constantly on the works of others as they create — sometimes explicitly, sometimes more subtly. To cast themselves as some kind of creative priesthood that should be granted special privileges not available to everyone else is not just unfair, but insulting and short-sighted."