Businesses could help shape copyright filtering

Out-Law News | 04 Sep 2019 | 8:36 am | 1 min. read

Copyright holder and online platforms are to help shape new EU guidelines on how they should cooperate to prevent the unauthorised use of works of copyright by internet users.

Applications are now open for participation in the European Commission's "stakeholder dialogue" on the practical implementation of copyright rules finalised earlier this year.

Under Article 17 of the EU's directive on copyright and related rights in the Digital Single Market, content creators have been given rights to exercise greater control over where their copyrighted material appears online. Article 17 also requires online platforms to cooperate with rights holders to intervene to tackle unauthorised use of the material by users if they want to avoid being held liable for copyright infringement themselves.

Campaigners against the provisions previously warned that the proposals would result in the automated filtering of copyrighted content online, with the risk that some content permitted under copyright rules – such as that used in works of parody or under 'fair use' exemptions – are removed from platforms, including memes and remixes.

However, the provisions were subsequently to specifically reference certain exceptions to copyright that still apply, including where works protected by copyright are used for quotation, criticism or review, or for the purpose of caricature, parody or pastiche. Article 17 also explicitly states that its provisions "shall not lead to any general monitoring obligation".

It has, though, been unclear exactly how Article 17's provision will work in practice in a way that achieves a fair balance between the rights of copyright holders and the rights of online platforms and their users.

The European Commission has now taken the first steps towards addressing this with its stakeholder dialogue plans.

Under Article 17, the European Commission is obliged to "organise stakeholder dialogues to discuss best practices for cooperation between online content-sharing service providers and rightholders". The Commission is also obliged to consider the outcome from that dialogue and then issue guidance on the application of Article 17 in practice, including on how rights holders and online content-sharing service providers can cooperate.

The Commission said copyright holders, online content-sharing service providers, internet users and consumer rights groups are among those eligible to apply to participate in the Article 17 dialogue. The deadline for applications is 18 September. Meetings will begin in October and up to 80 people representing the various industry and consumer bodies will be selected by the Commission to attend.

"Article 17 has probably been the most debated provision in the entire directive," Dr. Nils Rauer of Pinsent Masons, the law firm behind Out-Law, said. "Many have warned that giving actual effect to the stipulation would inevitably lead to automated upload filtering which would jeopardise freedom of expression. With the directive being now enacted, several member states have stated that they are looking to avoid such filters through domestic implementation. The stakeholder dialogue is exactly the forum to discuss and develop alternatives."