Users’ Rights Cannot be Collateral Damage: IFLA Submits Comments on European Commission Guidance on Upload Filter Provisions of Copyright Directive
16 September 2020
IFLA has submitted a response to a consultation by the European Commission on guidance to Member States on how to implement the controversial new provisions on internet platforms introduced by the 2019 Copyright Directive.
In the face of efforts by rightholder organisations to wish away the protections offered for user rights – including the enjoyment of exceptions and limitations to copyright – IFLA has joined other groups working to safeguard these guarantees as part of a balanced overall regime.
General background of article 17
In 2000, the European Directive on e-Commerce decreed that Online Content-Sharing Service Providers (OCSSPs) are fundamental to enable citizens to exercise their fundamental rights such as freedom of expression and freedom of access to information.
In order to deliver this, the Directive established that OCSSPs were not a priori responsible for content posted by third parties within their platforms that they did not know about.
In 2015, the French High Council for Literary and Artistic Property (CSPLA) established a report to the French Ministry of Culture to develop a new liability regime for such platforms – known as Online Content-Sharing Service Platforms (OCSSPs) – regarding hosted content.
This raised the question of whether there needed to be reflection on the articulation to be achieved between the European directives on e-commerce and on copyright of 2001 at the European level.
It was in this context that in 2019, The EU Directive on the Digital Single Market was passed, including an Article addressing this subject – Article 17.
The content of article 17
Article 17 aims to prevent unauthorized access to works subject to copyright on platforms (such as YouTube or Facebook) hosting content uploaded by users.
The goal as set out was to force such platforms to take additional steps to prevent such uploads, or to ensure that they pay licence fees in order to host this material. However, this pressure risks upsetting the balance found in 2001, and putting pressure on platforms to remove content which is legal, including that using in-copyright material under an exception or limitation.
Already in the text of the Directive, there are some helpful provisions. First of all, not-for-profit scientific and educational repositories are clearly excluded from its scope, protecting scientific and open educational resources repositories.
Furthermore, the Directive makes clear that non-infringing content should not be taken down, and that fundamental rights – including those relying on limitations and exceptions to copyright – need to be protected.
The Stakeholder Dialogue
The complexity of the provisions means that in the Directive itself, there was an engagement to continue the discussion in order to define guidelines for implementation. For example, how to distinguish content subject to copyright on platforms receiving thousands of videos every day?
Tools such as upload filters have been suggested as means to carry out this mass work of identifying content subject to copyright and which, without the agreement of the legitimate rights holders, constitutes a violation of copyright. However, the Directive also underlines that there should be no obligation on platforms to monitor uploads.
Moreover, while these tools can analyse content subject to copyright, they are not able to identify context, which can be key in working out whether an exception or limitation to copyright is in play. If we rely only on filters to do the job, all content identified as corresponding to a copyrighted work could potentially be removed from the platform.
What then happens to content subject to copyright but benefiting from an exception or limitation to copyright to allow freedom of expression, for example journalistic information, reviews, parodies and pastiches?
To address these issues, the European Commission has been bringing together different actors since October 2019 in order to prepare guidance for EU Member States on how to facilitate a fair and balanced implementation between all the actors. IFLA has represented the library field in these discussions.
While the COVID19 crisis has meant that discussions could not be completed, a set of ideas were shared with stakeholders in the form of a consultation.
The Commission’s document makes promising steps here, although leaves a number of open questions, notably around how to define situations where there is a high chance of an uploaded work being infringing, and what to do in situations of disagreement.
IFLA’s input to the Consultation
In its response, IFLA calls on the Commission to put in place a technical and legal framework respecting freedom of expression, notably including that drawing on exceptions and limitations of copyright.
IFLA also supported calls by partner organisations to encourage the development of public databases containing all works, authorisations and claims made on the platform to promote transparency in the process of exchanging data between platforms, rights holders and users.