Tag Archives: Article 17

EU Academics Publish Recommendations to Limit Negative Impact of Article 17 on Users

Post Syndicated from Andy original https://torrentfreak.com/eu-academics-publish-recommendations-to-limit-negative-impact-of-article-17-191113/

Despite some of the most intense opposition seen in recent years, on March 26, 2019, the EU Parliament adopted the Copyright Directive.

The main controversy surrounded Article 17 (previously known as Article 13), which places greater restrictions on user-generated content platforms like YouTube.

Rightsholders, from the music industry in particular, welcomed the new reality. Without official licensing arrangements in place or strong efforts to obtain licensing alongside best efforts to take down infringing content and keep it down, sites like YouTube (Online Content Sharing Service Providers – OCSSP) can potentially be held liable for infringing content.

This uncertainty led many to fear for the future of fair use, with the specter of content upload platforms deploying strict automated filters that err on the side of caution in order to avoid negative legal consequences under the new law.

While the legislation has been passed at the EU level, it still has to be written into Member States’ local law. With that in mind, more than 50 EU Academics have published a set of recommendations that they believe have the potential to limit restrictions on user freedoms as a result of the new legislation.

A key recommendation is that national implementations should “fully explore” legal mechanisms for broad licensing of copyrighted content. The academics are calling for this to ensure that the preventative obligations of OCSSPs are limited in application wherever possible.

The academics hope that broad licensing can avoid situations where to avoid liability, OCSSPs would otherwise have to prove they have made “best efforts” to ensure works specified by rightsholders are rendered inaccessible or show that they have “acted expeditiously” to remove content and prevent its reupload following a request from a rightsholder.

“Otherwise, the freedom of EU citizens to participate in democratic online content creation and distribution will be encroached upon and freedom of expression and information in the online environment would be curtailed,” the academics warn.

The academics’ recommendations are focused on ensuring that non-infringing works don’t become collateral damage as OCSSPs scramble to cover their own backs and avoid liability.

For example, the preventative obligations listed above should generally not come into play when content is used for quotation, criticism, or review, or for the purpose of caricature, parody or pastiche. If content is removed or filtered incorrectly, however, Member States must ensure that online content-sharing service providers put in place an “effective and expeditious” complaint and redress system.

The prospect of automatic filtering at the point of upload was a hugely controversial matter before Article 17 passed but the academics believe they have identified ways to ensure that freedom of expression and access to information can be better protected.

“[W]e recommend that where preventive measures [as detailed above] are applied, especially where they lead to the filtering and blocking of uploaded content before it is made available to the public, Member States should, to the extent possible, limit their application to cases of prima facie [upon first impression] copyright infringement,” the academics write.

“In this context, a prima facie copyright infringement means the upload of protected material that is identical or equivalent to the ‘relevant and necessary information’ previously provided by the rightholders to OCSSPs, including information previously considered infringing. The concept of equivalent information should be interpreted strictly.”

The academics say that if content is removed on the basis of prima facie infringement, users are entitled to activate the complaint and redress procedure. If there is no prima facie infringement, content should not be removed until its legal status is determined.

In cases where user-uploaded content does not meet the prima facie standard but matches “relevant and necessary information” (fingerprints etc) supplied by rightsholders, OCSSPs must grant users the ability to declare that content is not infringing due to fair use-type exceptions.

“The means to provide such declaration should be concise, transparent, intelligible, and be presented to the user in an easily accessible form, using clear and plain language (e.g. a standard statement clarifying the status of the uploaded content, such as ‘This is a permissible quotation’ or ‘This is a permissible parody’),” the recommendations read.

If users don’t provide a declaration within a “reasonable” time following upload, the OCSSP (YouTube etc) should be “allowed” to remove the content, with users granted permission to activate the complaint and redress procedure.

Rightsholders who still maintain that content was removed correctly must then justify the deletion, detailing why it is a prima facie case of infringement and not covered by a fair use-type exemption, particularly the one cited by the user.

A human review should then be conducted at the OCSSP, which should not be held liable for infringement under Article 17 until the process is complete and legality determined.

Given that Article 17 has passed, there appears to be limited room to maneuver and there is a long way to go before all Member States write its terms into local law.

However, even if the above safeguarding recommendations are implemented, it’s clear that substantial resources will have to be expended to ensure that everyone’s rights are protected. As a result, platforms lacking YouTube-sized budgets will undoubtedly feel the pinch.

Safeguarding User Freedoms in Implementing Article 17 of the Copyright in the Digital Single Market Directive: Recommendations from European Academics is available here.

 

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Italian Version of Article 17 Requires LEGAL Content to Be Filtered Out

Post Syndicated from Andy original https://torrentfreak.com/italian-version-of-article-17-requires-legal-content-to-be-filtered-out/

After years of work, on March 26, 2019 the new EU Copyright Directive was adopted, with 348 Members of Parliament in favor, 274 against, and 36 abstentions.

A little under a month later, the EU Council of Ministers waved the legislation through, despite opposition from Italy, Luxembourg, Netherlands, Poland, Finland, and Sweden. Belgium, Estonia, and Slovenia abstained.

EU member states were then granted two years to implement the law, which includes the controversial Article 17 (formerly 13). That requires platforms like YouTube to sign licensing agreements with creators. If that proves impossible, they will have to ensure that infringing content uploaded by users is taken down and not re-uploaded to their services.

Or, if one takes on face value a recently published official translation of the Directive, something much more outrageous.

As revealed by Eleonara Rosati over at IPKitten, someone has made a small but monumental mistake when transposing the Directive into Italian.

First, the relevant section in English;

7. The cooperation between online content-sharing service providers and rightholders 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, including where such works or other subject matter are covered by an exception or limitation.

Now, the same section in the Italian version (translated back to English);

7. Cooperation between online content sharing service providers and rights holders must prevent the availability of works or other materials uploaded by users that do not infringe copyright or related rights, even in cases where such works or other materials are subject to an exception or limitation.

So, according to this translation, sites like YouTube must work with rightsholders to ensure that non-infringing works are never made available on their platforms, even when the use of such works is allowed under relevant exceptions, presumably including…..erm….fair use. Or is that unfair use? Difficult to say.

Rosati suggests on Twitter that people might like to run through the now fully-published Directive on the Official Journal of the EU to see if there are any other errors in other countries’ translations.

Considering Italy didn’t want this law to pass, it’s lucky this error got spotted early or the much-heralded “meme ban” might’ve been just the tip of the iceberg.

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YouTube “Very Concerned” About Article 13, Mulls Copyright Claim Tweaks

Post Syndicated from Andy original https://torrentfreak.com/youtube-still-very-concerned-about-article-13-mulls-copyright-claim-tweaks-190501/

On March 26, the EU Parliament voted to pass the new Copyright Directive, including the controversial Article 13 (Article 17 in the final text).

The final step took place mid-April, when the Council of Ministers approved the legislation, despite opposition from Italy, Luxembourg, Netherlands, Poland, Finland, and Sweden.

YouTube was and remains one of the primary targets of the legislation. Copyright holders, those from the music industry in particular, want to prevent the platform from utilizing content without paying a fair market rate.

Whether that will be the actual real-world outcome remains unclear but in a new post on its Creator Blog, YouTube says that it still has deep reservations surrounding the legislation.

“[W]e are also still very concerned about Article 13 (now renamed Article 17) — a part of the Copyright Directive that recently passed in the E.U,” writes YouTube CEO Susan Wojcicki.

“While we support the rights of copyright holders—YouTube has deals with almost all the music companies and TV broadcasters today—we are concerned about the vague, untested requirements of the new directive.”

While it hardly needs repeating, the tacit requirement for some Internet platforms to install upload filters to prevent infringement in the absence of content licensing deals remains a big concern for many companies. While YouTube already has such systems in place, strict upload filters are a potential threat, Wojcicki suggests.

“[Article 17] could create serious limitations for what YouTube creators can upload. This risks lowering the revenue to traditional media and music companies from YouTube and potentially devastating the many European creators who have built their businesses on YouTube,” the company’s CEO adds.

Although Article 17 has passed on the EU level, member states will still have to write its provisions into local law, a process that’s likely to prove both complex and controversial. Wojcicki would like to see YouTube supporters, many of whom are Article 17 opponents, continue the fight, to ensure the best possible outcome.

“While the Directive has passed, there is still time to affect the final implementation to avoid some of the worst unintended consequences. Each E.U. member state now has two years to introduce national laws that are in line with the new rules, which means that the powerful collective voice of creators can still make a major impact,” she writes.

“We must continue to stand up and speak out for open creativity. Your actions have already led to the most popular Change.org petition in history and encouraged people to reach across borders. This is not the end of our movement but only the beginning.”

Finally, Wojcicki says that the company has been listening to key YouTube content creators who have expressed frustration over what they feel is an abuse of the copyright claims process on the platform.

Some users are receiving copyright claims following the use of small excerpts of copyrighted content lasting ten seconds or shorter, sometimes in an inadvertent context. It appears that the platform may be prepared to tackle this issue in the future.

“We also heard firsthand that our Manual Claiming system was increasingly being used to claim very short (in some cases one second) content or incidental content like when a creator walks past a store playing a few seconds of music,” Wojcicki notes.

“We were already looking into this issue but hearing this directly from creators was vital. We are exploring improvements in striking the right balance between copyright owners and creators.”

These types of claims, that are often filed without considering fair use implications, are decried by creators as a major irritant when attempting to review and critique third-party content, or film in public places. How YouTube will tackle this problem remains unclear but addressing it effectively could be a real boost to those who use copyrighted content within the confines of the law.

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