The European Copyright Reform – what just happened, what’s next, and what does it mean for the Internet? – PL 06 2019
You are invited to become a member of the session Org Team! By joining an Org Team you agree to that your name and affiliation will be published at the respective wiki page of the session for transparency reasons. Please subscribe to the session mailing list and answer the email that will be send to you requesting your confirmation of subscription.
When we meet at EuroDIG 2019, the European Union's Directive on Copyright in the Digital Single Market will have been published, and the clock will be ticking on national implementation.
The Directive has been the subject of intense discussion, given the often complicated way that copyright interacts with how the internet and digital technologies more broadly have developed.
With the baton now passing to national governments, this session will provide a refresher on what is in the Directive, the arguments being made on each side, and how things may play out next.
We welcome both those who simply want to listen and learn, and those who want to know how they can get involved in next steps to join us for a lively and interactive session.
Until 30 April 2019.
This session will take a look back at the recently agreed Directive on Copyright in the Digital Single Market, and a look forward to its implementation.
Now the dust has settled at the European level, there is an opportunity to reflect on the debates that took place - often in parallel with those on internet governance, and what they can tell us both about business models, and human rights, online. What issues came to the fore, how much did they resonate, and what was forgotten?
The session will also explore the results of the Directive, and the discussions that will need to happen at the national level around the implementation of the rules. These will not only shape the way that the internet works - for businesses and users - within the EU, but also outside, as other countries follow the lead set down in Europe.
Can we expect to see further efforts to implement filtering internationally? What scope is there for explicit protections for rights online? Can exceptions to copyright work across borders outside of Europe?
Following an opening presentation of the Directive by Paul Keller, two pairs of panelists will look first at the impact on business, and on fundamental rights and freedoms, in order to draw out the key themes and ideas which will mark debates at national level, inside the EU and beyond.
Speakers Paul Keller Kristina Olausson, ETNO - European Telecommunications Network Operators' Association João Pedro Quintais, Institute for Information Law (IvIR), University of Amsterdam Walter van Holst, Vrijschrift
Until 30 April 2019.
Following an opening presentation of the directive, we will run two conversations looking at the business, and the human rights implications of the Directive.
Starting with guided conversation with the moderator, the discussion will then be opened to the floor for ideas, contributions and suggestions of how to ensure all relevant voices are heard at the national level as part of the implementation process.
Until 30 April 2019.
Links to relevant websites, declarations, books, documents. Please note we cannot offer web space, so only links to external resources are possible. Example for an external link: Website of EuroDIG
Until 15 May 2019.
Please provide name and institution for all people you list here.
- Stephen Wyber, International Federation of Library Association (IFLA)
- Berhard Hayden. epicenter.works – for digital rights
Organising Team (Org Team) List them here as they sign up.
- Amali De Silva-Mitchell
- Jan Dohnal
- Giacomo Mazzone, EBU-UER European Broadcasting Union
- Kristina Olausson, ETNO - European Telecommunications Network Operators' Association
- Eduardo Santos
- Paul Keller, publicspace.online
- Kristina Olausson, European Telecommunications Network Operators' Association
- João Pedro Quintais, Institute for Information Law (IvIR), University of Amsterdam
- Walter van Holst, Vrijschrift
Berhard Hayden, epicenter.works
Trained remote moderators will be assigned on the spot by the EuroDIG secretariat to each session.
- Cedric Amon, Geneva Internet Platform
The Reporter takes notes during the session and formulates 3 (max. 5) bullet points at the end of each session that:
- are summarised on a slide and presented to the audience at the end of each session
- relate to the particular session and to European Internet governance policy
- are forward looking and propose goals and activities that can be initiated after EuroDIG (recommendations)
- are in (rough) consensus with the audience
Current discussion, conference calls, schedules and minutes
See the discussion tab on the upper left side of this page. Please use this page to publish:
- dates for virtual meetings or coordination calls
- short summary of calls or email exchange
Please be as open and transparent as possible in order to allow others to get involved and contact you. Use the wiki not only as the place to publish results but also to summarize the discussion process.
- The debate surrounding the EU Copyright Directive is not over, despite its adoption, and many uncertainties remain. However, among others, the Directive has uncovered a very important debate on intermediary liability.
- It is up to the member states to mitigate some of the most critically viewed elements of the Directive (i.e. overblocking due to upload filters) by making use of the flexibility they have in implementing it. However, this will be challenging given that the member states have significant leeway in adapting the rules to their respective jurisdictions.
- The application of proportionality and the respect of exceptions to liability rules will play a crucial role in the successful implementation of the Directive.
Provided by: Caption First, Inc., P.O. Box 3066, Monument, CO 80132, Phone: +001-800-825-5234, www.captionfirst.com
This text, document, or file is based on live transcription. Communication Access Realtime Translation (CART), captioning, and/or live transcription are provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings. This text, document, or file is not to be distributed or used in any way that may violate copyright law.
>> MARJOLIJN BONTHUIS: Yes, good afternoon. This is my mantra for this afternoon. This is such a large auditorium. It's not nice for the panel it's nice that they can look forward and see everybody in the room. And even it looks like -- otherwise it feels so empty.
And especially don't sit in the back, because it's dark. And then, if everybody settled, thank you very much. It is so much more comfortable for the panel and nice because they did a lot of prework. Should we start, Berhard. Berhard Hayden from epicenter.works. It's a nice unusual name. I give the floor to you for a very nice next panel. Go ahead.
>> BERHARD HAYDEN: We have already started the defragmentation process. So everyone is as close as possible to us. I will start with, like, explaining shortly the structure of our session. We will start with a presentation about the -- the directive at hand that we'll be discussing over the rest of the panel, followed by a conversation between our experts on the stage, but also between you in the audience. So if at any point there's something you want to raise, please move to the microphones and we will try to interact with you as smoothly as possible. That also goes for the remote moderation. Feel free to comment online.
With that being said, I would like to briefly recap. I vividly remember two years ago, in Thailand we came together and we joined the debate on copyright. They asked for broad themes like ending territoriality and stopping geoblocking and also last year at the session, where we debated more concretely the directive that has now been passed, there were broad words like a quote from the minutes, content blocking presents high risks to human rights or excessive concentrations of press powers remain to be seen as effective to the directive. I would like to ask Paul Keller to come to the stage, and how this relates to the directive that we received now from the lawmaker.
>> PAUL KELLER: Okay. Thank you. Good afternoon. So I have been asked to give a 20-minute presentation that provides an overview of the copyright directive. Can I have my slides up here?
Okay. So my name is Paul Keller, I'm with Communia. We fight for the public domain. We think that the scope of copyright should be reduced and we have engaged this new copyright reform process pretty much from the beginning. What I want to do in the next 20 minutes, give you an overview, a history of the process and where this all started and give you a really, really high level of what's in the directive. Then do a little bit of this good, bad, and ugly exercise. And so give our assessment of where the directive is dangerous and where it falls short and where it does introduce good things. And then finally, I will end up with a few thoughts about what's going to happen next, because obviously, this being a directive, there's still an implementation phase and there's still some engagement on the Member States level but also on the European level to come.
So the last five years for me, felt like this, like being in this never ending fight about copyright on the European level. This is a -- five years is a pretty long time when you are in it. Five years for an EU legislative process is also on the long side, although EU legislative processes are usually not super fast either. And so this has been an ongoing policy fight that has in the end right on time, pretty much at the last possible moment before, like, the parliamentary elections and before the new commission comes in, resulted in the copyright in the digital single market directive that was adopted by the parliament end of March and that has been published in the official journal of the European Union in May. And will become fully law at the end -- in June around this time 2021.
To go back a little bit, all of this pretty much starts around 2013, 2014, when the European Commission, after a number of failed attempts to somehow come up with better copyright rules through a stakeholder dialogue that we shall not mention here issued a publish consultation on the review of the EU copyright rules. And if you can read this there, there are a number of questions that seem to address a wide gamut of issues related to copyright and that included a substantial amount of questions about a reform or update of essential exceptions and limitations to copyright. So this was something that from the way it was consulted, I think filled people on the civil society side with a lot of hope that actually a meaningful reform of copyright would be possible in the next mandate of the European commission.
But obviously, we are not the only ones. Like copyrights -- an update on the copyright rules that depends very much what you want to see from the perspective or on the perspective on which you want to come. The existing copyright rules which dated from the 2001 info SOC directive the issues that they had with the different copyright rules were widely diverging. This is a lot of simplification. So generally, right holders, publishers, entertainment industry, collective management agencies, other agencies representing creators were generally interested in measures that would allow them to better exercise their rights in the digital environment, and a particular focus was to improve their negotiation purpose towards online intermediaries primarily.
There was other stuff in there, smaller organizations representing creators and performers whist interested in other types of intermediaries but they wanted to be -- their main gripe was it was difficult for them to exercise their rights in a profitable way in the online environment.
Civil society user organizations mainly asked for a harmonization of the existing rules that govern user rights. So exceptions and limitations to copyright, which the INFOSOC, it left it up to Member States to grant whatever user rights they wanted to grant to users in their territory and it was mentioned already like, we wanted more harmonization of the online mace, when it comes to user rights and there was also a feeling that generally, like, user rights were underused in the digital environment, and it should be expanded.
And the technology industry was a little bit more silent at that stage. They were, I think, primarily interested at that stage in more copyright flexibility and one particular issue which played for a lot of tech companies were actual rules that would enable better use of data for computational analysis, so text and data mining, machine learning and this kind of stuff. People went into this discussion from very different -- oh, this is not completely ideal -- from a number of different positions.
And it's interesting, like digital analysis that I did at the time, this consultation was one of the consultations which up to this point which gathered a lot of feedback. A lot of that came from users. So almost 60% of these 11,000 responses that the European Union came from users, significantly less from rights holders and intermediaries, and some from other, which is mainly Member States. This analysis shows a little bit. This is the number ever responses versus the amount of text those responses got in the analysis of the European Commission. It was probably an indication at that stage that the commission was mainly listen to mainly to the rights holders concerns in this.
Based on this consultation, we got white papers that generally leaked and pointed out more and more direction that this was about to go. There was a communication at some stage and in this communication, which came out in 2015, for first time it became relatively clear that the commission was also intending to do something about the relationship -- or the role that online intermediaries play and how far that interacts with copyright.
So the key question there is: Should online intermediaries be responsible for acts of communication to the public, undertaken by anywhere users which was one of the key demands of the -- of the rights holder commissions? And so while this didn't necessarily come up in the consultation, it slowly swept in there. Then in 2016, which the commission presented its proposal for the copyright directive, it was one of the major parts of it. Actually, it was probably from first day that this was public, most controversial part of it that became Article 13, which in the end now is Article 17, which dealt with what we framed as upload filters, the rights holders' side framed that as the value gap and how to remedy the value gap that they perceived in that.
So here's an overview of the issues that the directive -- the proposed directive -- so the Commission's proposal from 2006, wanted to address. It introduced three mandatory exceptions. This was to some degree an answer to more harmonization on the user side space, which included an exception for text that would allow text and data mining for scientific research purposes. It introduces an online education exception that would allow certain users of protected materials for online educational users. And it introduced a mandatory preservation exception, which would allow cultural heritage institutions in the European Union make copies for preservation purposes.
Then it contains a number of provisions, three articles that dealt with access to out of commerce works held by cultural heritage institutions. It was not dealt through an exception but a licensing mechanism. And then audiovisual works on demand, that I think nobody was interested in. That was not previously discussed. And then the most controversial was a new neighboring right for press publishers on top of copyright.
And then Article 12 dealt with remedying a ruling. European court of justice that dealt with how royalties are collected and how it could be distributed between publishers and artists. And the upload provision that dealt with measures that online platforms that allow user uploads and then make them available to the public needed to take.
And then finally, Article 14 to 16 dealt with fair remuneration and contracts for authors and performers. This was mainly about transparency and contract adjustment mechanisms.
So all of this was presented in one big directive. Both Article 11 and Article 13 were by far the most controversial ones, like, to the casual observer, probably they looked like the discussion -- the discussion probably looked like it was a directive that only dealt with these two issues, which to some degree maybe was advantageous for some of the other issues because we managed to make progress on some of the other issues, maybe a little bit in the shadow of this big discussion, but this big discussion took on and was quite vicious in terms of the amount of lobbying effort that went in from all sides.
It was also highly problematic, because basically all the political actors were split in the middle. In the European parliament, almost all the groups, political groups couldn't agree on a position on this. So the fights were within the political groups, in the European parliament.
The Member States were extremely divided on their positions on these things. There were Member States that were rejecting both the publisher's right and the upload filters provisions. There were Member States who were backing the one. Like Germany was primarily in favor in this Article 11 press publisher's rights. The Article 13 was mainly backed by France and a couple of other countries. And so the entire mix of this made it a very, very long process that took its time for -- for people to align. It also seemed to be that it went -- the support for the proposed measures went back and forth in the European parliament. And so there were some elections in this or some votes in the summer of 2018 that actually were -- seemed to reject this proposal and the most controversial things that were then later reversed.
And also the final decision in the European parliament was relatively narrow margin. And it was adopted with what looked like a solid majority, there was one key vote before that was about if the discussion about individual articles should be opened and that was won by only three votes for the people who wanted to keep their entire directive closed so it could be adopted.
So this was hugely controversial. It led to massive amounts of protest, first in the online space, with -- with basically under precedented mobilizations of users, of civil society via online channels, emails, Twitters, and that type of stuff in the direction of the lawmakers. And in Germany and Austria, a number of other countries also transformed into real protests in the streets, like, with hundreds of thousands of people demonstrating against specifically the upload filters in Germany. And that actually in Germany, like, this turned into quite a -- a visible political debate, and some other Member States here in the Netherlands it was largely invisible.
So it's interesting to see where this played and where this didn't play.
Anyway, what did we get out of it? This is highly subjective. It's from the perspective of Communia, obviously, and so here's an attempt to divide this into the good, the bad and the ugly.
So of the good things, there is, like, very late in the process, suddenly a clause showed up that protects the public domain from -- in some Member States it's possible to basically reclaim rights of a public domains work by making a reproduction and say I own the rights in the reproduction. And so this Rembrandt, we have in Spain, we have museums claiming to be the copyright holder about -- on works of Rembrandt or at least about the reproductions of the works of Rembrandts. There have been cases around that. Wikipedia tries to make its entire domain available to all the users and the public at large. It has been sued by assumes for using works for which copyright has expired because the museums say now we are the copyright holders.
So we have an Article 14a, a public domain clause that should in two years basically end these type of practices.
Then another important thing is that the directive explicitly allows Member States to implement broader exceptions making full use of the legislative room provided by the INFOSOC directive, and the minimum exceptions, they can go and introduce more meaningful exceptions. If all Member States would do that at the same time, we would make a step closer to harmonization of user rights.
Then the provisions for access to out of commerce works has a fallback exception. This is a complicated subject matter which may mean the cultural heritage museums and the libraries, there's a path forward for them to clear works on a bigger scale, where, like the copyright status is unclear and where the copyright owners may not have a strong incentive to work with them and get these collectives online. This will probably lead over time to a much bigger availability of 20th century works on the websites of cultural heritage institutions.
The exceptions for text and data mining, so one exception in the proposal, we actually got two at the end and have been significantly broadened in scope. So the original exception was narrowly limited for scientific research purposes and could only benefit scientific researchers or people employed at research institutions and there's a second exception that basically opens up text and data mining to a much broader -- basically to almost everyone, unless the rights holders make an explicit reservation. And there's an appropriate remuneration for creators that have been added to Article 14 and 17, and dealing with transparency and within Article 17 -- to this Article 13, which was the upload filter thing became in the final stages, because -- and this is like normal procedure. The articles were renumbered because there were additional articles added at the lower numbers. So it shifted up. Article 17 is now the upload filters online platforms position. And there is actually a -- a -- that article makes it mandatory for Member States to have parity and quotation exceptions. If you go into detail, there's quite a lot more positive things about user rights in this article.
The article remains hugely problematic.
So the bad. And here's the first and the most important thing maybe is the upload filtering obligations established by Article 17. So Article 17 kind of now asks the impossible of operators of online platforms, because it establishes both a requirement to fully license everything which users may upload, which to their platforms, which under normal circumstances is pretty much impossible. And if not, to block works or prevent works from appearing on these platforms. That's one side of the thing. It's already problematic. It will be fully difficult to license this material.
On the other side, it requires Member States to ensure that users can make full use of the exceptions and limitations specifically the parity and the quotation exception. And would you going into full detail, but on a technical level, it's impossible to reconcile these two things. On the one hand they need to prevent the availability, but on the other hand, they need to fully respect these exceptions and limitations. Current technology can maybe recognize works but it cannot recognize the intent of the use of a work, which will mean that this second part -- like, if these technologies are employed to block uploads, they will not be able to -- to basically exclude from filtering legal users that fall under these exceptions and limitations.
So Article 17 is still a big mess. This' a stakeholder dialogue coming up, which should in theory clean up some of this mess but that's probably going to be just as difficult as getting something in the directive in the first place.
Another bad thing is that we now have a new neighboring right for press publishers. Against all evidence, against academic consensus that this wouldn't be a working that is not necessarily because there were less invasive forms of addressing the proposed problems this has been added and pushed through in the directive, and we have a further extension of copyright, if you will.
Another thing is, for example -- another thing that we consider highly problematic, freedom of panorama, the right to take images -- like, to take pictures of art work, copyright protected works, in some Member States like this one, you can take a picture on a public road and publish it on your website and in other Member States it's not possible at the moment. This is something which is absurd that this is not a right that has been harmonized across the entire EU that you basically need to check the copyright law if you can take picture of art works or not.
Then another bad thing is like this Article 12 didn't get a lot of attention, but, like, it reinstates a principle that the European court of justice ruled basically wrong. It reinstates the fact that for these reproductions, half of that can go to publishers where they thought this should all go to us, and it's our rights. So basically, the publishers got back what they had before.
Then the -- another bad thing I said like the TDM exception is a good thing that we have a TDM exception or we have two by now but one of the things it's overly complicated and it doesn't really follow that kind of, like, intuitive approach that what you can read legally, you should also be able to mine, and let your computer read legally.
And then the reproductive remains limited to preservation. Institutions asked to give them all other types of internal purposes. And the ugly. But here it is. So the ugly is mainly on -- I would argue on the overall impact of, like, this directive proposal on the EU copyright framework. So we see a new introduction to how copyright exceptions work. There's a license override, which is very dangerous.
So basically, exceptions given user rights but this exception in Article 5.2 now gives rights holders the ability to override this exception by offering suitable licenses. So there's a user right which is kind of like conditional on the offerings of rights holders, which is from the theory that users should be able to rely on something, extremely problematic. It's a new thing in copyright. We need to see what that brings.
Then the other ugly thing is instead of harmonizing and simplifying the EU copyright framework, they introduce further fragmentation and business model specific provisions. Instead of making copyright easier to understand, easier to comply with, and like the same across the entire European Union, what we have now are improvisations that will be implemented on the different levels and Article 17 is probably a good example and copyright has been, I would argue abused here, again to fix certain business models. Article 17 is the key example here. It's basically a demand of the music industry which is complied with by introducing a copyright provision, which applies much further than the music industry. So this will be problematic for sectors that have nothing to do with music, for example.
And then finally, it is introducing, like -- especially with regards to exceptions and limitations, what we had really argued, we need simplification. We need something where people understand it, it introduces additional complications and additional complexity. Previously we either had exceptions or we did them and if we had them, people under certain conditions could rely on them. We now have an exception that could be overridden by licensing. And we have an exception that could be overridden by making a machine readable reservation, and we have an exception that only applies -- there's something wrong on the slide, that only applies when no collective management organization exists in that sector and individual rights holders can opt out from it.
And then we have these strange exceptions or maybe the jury isn't really out on this last thing, which are partially mandatory. So the quotation and the parity exception, which seemed to be only mandatory as far as users on these specific online content sharing provider platforms are concerned.
So the big takeaway that instead of modernizing and making it easier to comply with and making it also ease err to understand, copyright is an incredibly complex matter, we basically introduced at least one complete order of magnitude or more of complexity into the entire system and we are relying that copyright is something that's different in all the 27 or 28 Member States and all of them can make their own little rules.
Southerly a couple of things. Looking back at the effectiveness of the work that we have done with Communia but the broader civil society sector. We tried -- we had this website which tried to analyze the effect of the provisions in the directive from a user rights' perspective, broadly speaking, and this was a tool that we used before the final vote. And we had this on balance negative assessment. And it was based on kind of like a very cursory summary of issues where we said, like, okay, there's a couple of issues where it's really going in the wrong direction. There's also a couple of things where it's going in the right direction. But on balance, it's -- it's still negative for us.
And this was our -- our analysis were based on an analysis based to a situation before the directive.
So, for example, if you look here, the -- the right -- the freedom of panorama that doesn't exist, the directive doesn't do anything about it. It's still bad. The education exception is -- like, this is an additional education exception, but we have this license override and that's slightly worse than the situation we had before, even though we got an exception.
So from this perspective, it looks like we by and large lost this battle. If we look, if we take a different baseline and take baseline of the Commission proposal, we would actually argue or one could argue -- and this was never a published website. This was more a thought exercise that actually from the moment the commission published its proposal, we managed -- and by we, meaning broadly civil society user rights groups, we managed to actually improve the directive on pretty much all of the things that were in the directive.
So the upload filter is still, there but the provisions that are in, there because of this heavy focus also on user rights are much better than what the commission had originally proposed. That goes on to the same thing.
So this also speaks to a certain degree to the effectiveness of civil society engaging in this policy fight in Brussels and actually, driving, like, at least minimizing harm but in some areas, also making a substantial amount of progress, versus what the commission had already proposed.
Now, obviously this means we have lost to some degree this fight in the face, not after the publication of the proposal, but in the period where we -- like, where the Commission and other interested stakeholders basically came up with what should be included in the proposal.
And this is, I think, for people interested in further working on better copyright rules, one of the important lessons to learn here is that it matters a lot how we actually work with the very long-term strategic input in trying to influence, like, initial positions taken because we are, if you look at this quite good, at limiting harm. We are not very good at strategically placing the issues that we want addressed in this kind of like, policy pipeline if you will.
I see people looking at me and I'm probably running over time. Here's my last slide and maybe that's also a bit of a segue into the next section. So what happens now is that Member States have a 24 months to transpose the directive to international law. Think of this was 24 mini copyright reforms in parallel. Each and every Member States will need to parse the directive, and see what that requires them to change in their copyright law, and then come with a legislative proposal to change domestic copyright law so it complies with the directive.
One of the -- and that's jumping to the third bullet point there. This also means, like, because this is to -- to the largest degree minimum harmonization that Member States can potentially do more than required of directive, right? Like the INFOSOC directive has a lot of optional exceptions. For example this freedom of panorama exception comes to mind. Some countries have, some don't. Nothing prevents the Member States who don't have a freedom of panorama exception of simply adding one. They need to open their copyright law up anyway. There's nothing that says that they have to make the changes that the directive requires them to make.
And one last point. Like, so last point, this also happens on the Member States level and civil society and public institutions need to be organized on the Member States level but nothing -- but the one exception to this is that on Article 17, the commission at the end to wrap up the thing also sort of kicked down the can road a -- kick the can down the road a little bit. In mandating some of the most problematic and tricky questions related to Article 17, namely the relationship between the requirement to protect user rights and the requirement to filter have been delegated to a stakeholder dialogue that the commission needs to organize in the upcoming months, that needs to come up with guidelines how to reconcile these two things and that's probably for civil society. It's important that civil society is strongly represented there and we can still do more work in order to further minimize the harm that is being done by Article 17.
And with that, I think my presentation comes to an end.
>> BERHARD HAYDEN: Well thank you very much, Paul, for the successful attempt to push an extreme amount of information into a very short amount of time. And with, that I would like to invite on stage our experts, including Joao Pedro Quintais, with institute of information law, University of Amsterdam and Kristina Olausson, European telecommunications network operators and Walter van Holst, venting Vrijschrift.
If we look into the future, like if we try to look into our magic ball and predict things, in ten years’ time, do you think that people will being look back on today on this directive as a turning point or more as a dead end? Will this lead to -- is this kind of a slippery slope that will be followed up upon or will we figure out, okay, this is a step in the wrong direction and we figure out new solutions?
>> WALTER VAN HOLST: I would say both. It's one that most people in Brussels don't want to touch anything to do with copyright. It will show that it will come at a high political price. It's also a turning point in the sense that it has engaged average European citizens, not even the software patent debate of 2005 reached this level of fervor.
In another way, it's a turning point in that the whole concept of intermediary liability that has been opened now. That's a very bad turning point. And at the same time, it's also complete dead end. I think in ten years’ time, we will realize that this was an incredibly stupid idea. This was the same selling of unicorns in bad faith the Brexit has been doing. This has been done with the copyright. The same magically thinking that you can have two mutually exclusive things at the same time.
>> KRISTINA OLAUSSON: So I will continue there. ETNO represents telecom operators in Europe. Basically, we have members such as Deutsche Telekom and Telefonica and in the sense of copyright and the copyright directive, we are both intermediaries and ISPs and cloud service providers and we are also rights holders.
You cannot read it in isolation. So for short, it was a kick starter, but it should be seen in a broader context as you mentioned about intermediary liability. So for us, we see it more as a kick starter of a discussion that also runs into the eCommerce directive and that will most likely continue in the next mandate of the Commission as well. It definitely opened up a broader discussion on intermediary liability and the responsibility of different actors in the ecosystem of the Internet.
>> JOAO PEDRO QUINTAIS: Well, first of all thank you very much for the invitation to be here. I don't disagree with what was said. It's a turning point for copyright in a way, in that it fundamentally, at least in Article 17 shifts the liability regime, and it started more explicitly with the effort to tackle illegal content online where we are trying to revisit the rules of intermediary liability. And we are going to a regime of intermediary responsibility and this is just one piece of puzzle. We have the content online regulation. You have laws on speech and you have this revision of the eCommerce directive that could be in the digital services act in Brussels.
I think what we are seeing here is one more piece of the puzzle towards where we are going which is a new regime for online intermediaries. As for specific cop ill right, I think it depends on who you ask if it was a mistake or not. If you compare it to the proposed aims of the directive, this will be a complete fail as it regards the press publishers right and the liability regimes for mat forms, but if you ask as I asked certain rights holders for them, this fundamentally changes their positions in association and power. I don't think that's a positive thing in those particular provisions. But for them, this was a success, and so in that sense, their lobbying power was greater.
>> PAUL KELLER: Do you want me to talk more? So, yeah, I think for me maybe where this -- where this is probably the last line of interventions is that the -- where it was difficult, like, really honestly difficult to achieve at something sensible. And like, I think there was more agreement about the problem at stake, that there is actually at the moment a disproportionate transfer of value from European creators and European culture industries towards large American intermediaries. So the big, dominant platforms.
So there was, I think, agreement to some degree, and that also shifted during those five years of discussion, right? Like, if you tried to remember how society at large looked at the big platforms five years ago, that was remarkably different from how we look at them, or how society as a whole seems to look at them these days.
The instrument that was then chosen to remedy, copyright, like, kind of like this is a reflex of the creative industries. There's something wrong in my business model and we need to fix it via copyright. That doesn't work. I tried to make that point in my presentation. Copyright applies to everything that everyone does on the Internet, because the Internet is essentially about copying. The music industry says we don't care about the collateral damage. Change the copyright so it changes our negotiation position, small sector of Internet versus big dominant things and we don't care about the rest. I think this is where it failed and this is where it will demonstrate lots of problems down the road.
And I wouldn't be surprised if in the reforms or the attempts to update copyright law, to come, that we will learn from this and be more cautious not to use copyright to fix specific business models. It's not a prediction but more an expression of hope.
>> WALTER VAN HOLST: I would like to add that the whole failure gap infuriates me. Most of the creative industries don't really have the problems that they claim to. Have in the past decade, the music industry has been outpacing the global economy in terms of growth and revenue and profit.
So do not come to me claiming that they are in deep trouble if you have been outpacing. Yes, the happy days of everyone replacing their vinyl records with CDs in the late '90s -- in the past, that's one of the things. By and large, the amount of money, especially and the amount of money that the consumer spends through streaming services, music, games, books, et cetera has only expanded. So if the creative industries are nothing to do with loss. It has to do with failing business models and so forth.
The bits are that in trouble, the news publishers have mostly themselves to blame. They have allowed their relationship with their audience to be transferred to the advertisement platforms. So the solution is to fix the advertisement ecosystem, which is mostly privacy issue, and in the bit of legislation that tries to address that, the publishers have been fighting tooth and nail against that bit which is actually to their advantage. The creative industries don't know their self-interest actually lies.
So that bit really annoys me that as much as I hate Google and Facebook, the way to attack them, like Paul rightly said, it's not copyrighted. It's stronger privacy protection. It is stronger competition law enforcement, and we should look at the way we harmonized our tax laws across Europe.
>> BERHARD HAYDEN: So Paul has mentioned collateral damage. What is the collateral damage that we are looking at? The German government, for example, in the process of agreeing to the directive in the Council added this statement to their decision to say, yes, that they will -- on a national level, make sure that there will be no upload filters. Is there a sensible way to actually do that for a Member States in the national implementation?
>> JOAO PEDRO QUINTAIS: I think the German statements, which are a series of statements, interesting. Half of them are wishful thinking, I have to say. For example, one of them comes out and says this applies only to YouTube and Facebook and mega platforms. Well, when you read the law, unfortunately, that's really not the case. And they do have some interesting ideas and I think along with those ideas are the fact -- a motion to try to prevent the plot filters by creating some sort of mechanism, that there's some sort of flagging and you trigger a human in the system and that would prevent the plot filtering but brings problems of its own.
There are a lot of knobs and levers that you can prove to make this notion of user rights more effective. Now, the main problem with this remains the same and Paul also mentioned it, which is from the moment that we have endorsement as a solution, under the paragraph 4 of this article, of upload filters if you want to call it, but preventative obligations to filler, whatever obligations you have to impose or to get grant user rights will not be effective because the technology simply does not recognize context specific dynamic exceptions. So the solution to this problem is to finding legal mechanisms that prevent at the first level that these types of measures become mandatory for all platforms and we can write as many users rights into the system and quite simply, they are not going to work.
>> PAUL KELLER: So I mean, you said it's a series of statements, right? One of the things that the Germans said in the last statement when they wrote, it they expect at that time stakeholder dialogue, which I mentioned would result in a scenario that doesn't require users and that would then lead to -- to harmonized implementation across the EU that all Member States would implement in line of that, which obviously is not only wishful thinking. Why should the Member States if they couldn't agree on anything in five years suddenly agree on something in a stakeholder dialogue where they invite a couple more people to talk with them, right?
It's wishful thinking. The biggest thing is that, like, we know that efforts to implement in the different Member States are already on their way. The French have a proposed implementation of Article 17 on the table. Like, the Dutch Ministry of Justice has sent out a text in consultation with the other ministries and so that means that it's probably imminent that that thing will be published for public consultation year. At the time, yet, the European Commission has not even invited for the stakeholder dialogue.
So, like, there is a paper -- like, what looks like take paper exercise in Brussels that tries to take away some of the edges of this thing, and the Member States with very different preferences and the Dutch didn't want Article 13 to be there at all, where the French were the proponents are both already working on their national implementation laws. So this is going to result in a big mess with probably lots of different national implementation which will make it more difficult for honestly, rights holders to operate on a pan-European scale, and operators and it will make user rights again fragmented depending on the country where you are in. So this is, like -- like this is almost unimaginable that this will not, like, go directly against this digital single market title of the directive and create a further mess of like 28 different digital markets or at least where it comes to online platforms.
>> KRISTINA OLAUSSON: Yes, so maybe just a comment on the upload filters. I think here we -- I mean, we raise concerns during the discussions as from our side, we did not see how this would be effectively possible to have 100% removal of infringing -- copyright infringing content. However, as our approach was more based on having -- finding the right proportionality and balance as well, the first we had a very broad scope proposed and also very far reaching measures. This was changed in the process. So we saw at least moving towards a better balance there with exceptions that add it to the scope.
However, now in the -- the in directive, there are certain exceptions to liability. If you act in a best effort and also due diligence. So I would say, we will have to see how that is implemented among the Member States and there's still open questions to be answered.
>> WALTER VAN HOLST: I think it's impossible to 100 prevent copyright violations through upload filters. It's only if you accept that there will be a massive over blocking and over removal and that's the core issue at hand. But what already the current mechanisms proved that these mechanisms would actually be harmful to freedom of expression. So this is bound to -- it's entertaining to see that they are scratching their head and wondering how the hell they can implement this in a what that makes any sense whatsoever.
That said, I want to look back to the multi-stakeholder bit in the directive. Regardless of what was already said, this is a Commission that in the runup to this directive published several consultations. One of those last consultations had about 50,000 responses, mostly from individual European citizens.
In Commission felt the need to conflate the vast majority of those 50,000 individual responses and to treat them as a single response because they were so much alike. If you consider that a multi-stakeholder consultation that is executed in good faith, yeah, maybe this multi-stakeholder model will work.
If you don't -- if you feel different about that -- and I do -- I don't think the Commission is any more credible facilitator for any multi-stakeholder dialogue anymore. If you repeatedly acted like the Commission has this process is dead from the beginning.
>> BERHARD HAYDEN: I mean, obviously the question to ask is if the political changes in the Commission would change that. I would like to stay with different implementations in the Member States. So from a business perspective, what would be the effective availability of content or platforms in different countries depending on how strictly they implement during obligations.
>> JOAO PEDRO QUINTAIS: I think he can start. We don't know at this stage. That's the honest answer. We would like to see how the implementation process would go. What is critical right now is the way the law works and without wanting to get very technical, the article says you as a platform, if you are covered by this regime, you have to license everything. If you can't license everything, we go to the other possibility, which is to not be liable, because what the provision says is that you are liable. To not be liable if you can't license everything, you have to go through this list of conditions. We have to comply with all of them.
First of them is you had best efforts to contain those licenses or authorizations that can be through CMOs. Now other than the online music sector, it will be very, very hard for other types of content, protected by copyright for you to be able to provide the licenses. So depending how you assess this Member States, if copyright is triggered in EU28 or 27, in all of these territories and I really only care about seven or eight of them, I'm incentivized not to over block but also to geoblock territories because I don't even want to go to the trouble of obtaining licenses for those territories. It's just too hard and I might not meet the obligation that's quite vague.
If that case, you have a different type of Internet, you have more NetFlix or a TV model. I think is something that has not been fully discussed before by policymakers and it's a real possible consequence of these type of provisions.
>> KRISTINA OLAUSSON: Thanks. Just a very quick reaction from our side. So our members are still assessing the outcome of the directive. So I cannot give a precise comment there, but maybe to clarify, as to a large degree, we were exempted from the directive, but they are also investing heavily in the content. So from that perspective, what we asked for in the directive was to have a balance between legal certainty, but also to award the responsibility in the -- to the content sharing service providers where it's relevant.
So I would say that we are not entirely unhappy with the result from that perspective. It was more to reach a balance between the scope and the measures, but we will have to see how it will be implemented by the Member States.
So I would say, it's it I will to come and we have both seen the Member States raising objection to it. I think Paul mentioned it earlier. So for sure, it's an ongoing process.
>> WALTER VAN HOLST: I would like to respond to Joao to a more common media model. I think that's the very purpose of this copyright directive. And the less discussed is the impact on minority languages and minority culture expressions. If you are interested in Frisian literature you are living in Croatia. You can't do that.
We have the new neighboring right for news. Anything that is done in a minority language in Europe will basically be made to disappear because of this directive, to other cultures, people from other bits of Europe.
>> BERHARD HAYDEN: Well, all of these look rather negative finalities are clustered here. Do you -- like, what is the best case scenario? Is there scenario where there actually does happen to be a successful multi-stakeholder approaches and we see that there is harmonization of positive roles?
>> PAUL KELLER: So the best case scenario. I think there are two best case scenarios. One, if we are talking about the entire directive, I think I made that point during my presentation, but like, there the best case scenario is that Member States take up the flexibility that they should have done or the European Commission should have done or the European legislature, the freedom of panorama. The Member States could still ensure that citizens in all of Europe have freedom of panorama and a number of other exceptions as well. That's the best case scenario. It's relatively unlikely. Why we didn't agree on everything, is because the Member States didn't agree on anything.
Still civil society and Member States can push their governments to do more than they need to do, and the more they do, the more they take use of these opportunities, the flexibilities offered especially by the INFOSOC directive, the better it will be.
Now coming back to Article 17, that we are discuss, it's extremely complicated and I don't think, like, this best case scenario is likely, but there is -- if you take a very precise reading of what's there in specifically Article 17.9, which deals with -- in combination with 17.7, which deals with the user rights safeguards and so 17.7 says user -- Member States need to ensure that users can rely on the parity and on the quotation exception. If you take that seriously, they need to ensure that they can rely, that doesn't even only mean that they need to have such an exception on the books, but they need to be able that users can meaningfully make use of this right that they have.
Now how would that look like? That would look by saying we have certain de minimis rules. We say in the first instance, if somebody claims that they are making use of an exception, or if -- it could also be I different mechanism, the way it says, if it's like 50% of the work used. So, like, it seems like a quotation, like even if a rights holder object, like, we don't take it down. We don't block it. We first give the uploading user the right to contest that thing and if the user didn't do that, after a certain wile, we take it down.
So basically turn the burden of proof around. Like, that seems to be and I think there's still analysis to be done, but that seems to be a possible implementation of Article 17 that really starts from how can we take this obligation to -- that users need to rely on this exception seriously. There's other good stuff in the article. Like content ID is not regulated. It's privatized enforcement by YouTube in collaboration with rights holders. They came one some type of rules and it's all -- like users don't have any rights.
Now Article 17 starts regulating these things. If a take-down claim gets contested by a user, there needs to be human review. Right now YouTube is sending messages down and forth and in the user still stands -- like, do you really want to take a legal risk and then nobody ever exercises these rights.
Like, here the directive requires Member States to ensure that from, like, first contestation on, there is actual human review. If that is taken reasonably, that is a big improvement of users' position, vis-a-vis the system that currently exists, like content ID and that's also -- that places quite a bit of burden on the platforms to ensure that there's actual human review.
So we are seeing -- there is possibilities for an improvement, like a best case scenario here that at least strengthens the user rights under these overall problematic idea that private corporations should employ automatized filtering algorithms to somehow serve rights holders and protect copyrights.
>> JOAO PEDRO QUINTAIS: I have many ideas. If there's any government officials here. So building on what Paul said, you have to two things. The article contains enough elements for that. So you need to change the incentive creams to over block or geoblock. And how you do that is take to heart what the article says about best efforts. It says you have to rely on the principle of proportionality and you have to take into consideration what type of platforms and what revenues and what audience.
And you have to lower the obligations. Super small platforms should have, perhaps none of these obligations and then on the other side, you can do multiple things as Paul was saying. Another option is to take the bundle of mandatory exceptions that are there and make it one broad user content generated exception. These are types of uses that can be interpreted flexible and then you allow a breathing space for the user. If you make it a user right and you give a claim for consumer associations in cases of over blocking by flaggers to take this to court. Some national laws would allow this. You turn the liability risk and the incentive calculation of platforms. You change their calculation. Right now it makes perfect sense to over block and with these types of provisions it wouldn't so much.
This is the best case implementation, that ideally a multi-stakeholder dialogue would flesh out and then the court of justice would draw some sort of lines. I'm hopeful for that, but I'm not sure that will be the case.
>> KRISTINA OLAUSSON: Yes. Just add to, that I would also say three points. First of all, that the directive also fulfills the I am aim that it actually had to reduce the amount of copyright infringement material online, otherwise, it would be for nothing. Of course, these far reaching measures that we now have in the directive, but also that the exceptions that we saw and the more limited scope enables continued innovation, and creation of new services on the Internet and third, harmonization.
And here, I think we heard the concerns. For sure, it's like that for the directive. It might be implemented in different ways and different Member States, but here the commission also has a role in oversight on the implementation to be perhaps a constructive force to -- to help to some degree.
There are a lot of ifs here but I'm staying positive.
>> JOAO PEDRO QUINTAIS: Can I just slightly first point on that the directive reduces piracy. The platforms that were previously covered by the safe harbor. It doesn't target piracy. And the empirical studies, it's seen that piracy is on the decline and it's localized to certain elements and actually the main value gap is not really -- this mega platforms for user upload content. It's actually in the contractual roles between record companies, for example and individual creators that's tacked by a different section that Paul mentioned on federal remuneration.
I think it's important on the piracy part to be careful because I don't think it actually tackles that issue.
>> WALTER VAN HOLST: I would agree except for the use of the word "piracy." I tend to use unauthorized cultural sharing. It's a bit longer.
My concern is that people will go to a federated and decentralized platforms, and it will result in a growth of unauthorized cultural sharing by virtue of it happening more often there as well. My other best case scenario. Parliament is contesting it and Joao may fill us in on the strength and the weaknesses of that claim. General the court of justice, takes a semi interesting discussion and turning it into a more interesting question and answering that bit.
It will be very interesting, justice of Europe has been a champion of privacy rights of European citizens and general obligations for monitoring or effectively so in ail directive have been frowned upon by the court. On the other hand, the court has been kind to extreme perspectives and it has a split personality on these two topics and it may have to find a position to take up these two traits of the court.
And lastly, if I may do some visual thinking, at sympathy point, freelance authors may realize that they are fleeced by the publishers in the new neighboring right which may be in violation of the Berne Convention and contested by means contested by them. That's dreaming on.
I think realistically the best outcome is that the Member States realize that it's self-contradicting bits in the directive and they turn around in a few years time and try to tone it down a bit and make it somewhat workable.
>> BERHARD HAYDEN: So maybe we can actually pick up that question, but I also want to remind that we have about 20 minutes left. So if there's any answers or questions or remarks from the audience, then please do use the opportunity to go to the microphones. That being said, so I would like to pick up the question of legal remedies, what could be the next steps there? Is there a procedure that Poland initiatives at the Court of Justice?
Maybe let's take that question first and then park the Court of Justice for a while.
>> AUDIENCE MEMBER: Thank you very much for the discussion. My name is Raul Echevarria. It's been very illustrative. It's my first approach to is up a deep discussion. Really, I'm more worried than when I came into the room. I see a lot of uncertainties. The possibility of 28 different fragments at the end of the day. The risk of over blocking. We link that back to the freedom of expression and really -- so I think that's the -- as you say at the beginning of his introductory presentation, I think that I have the same feeling, that the overall -- overall balance is still negative, right?
I think we should be worried. Especially I come from Latin America. We have this habit of trying to copy all the regulations from Europe, and is there any similarity with discussions that we had in the past, like SOPA, is -- is the risk for the users at the same level?
>> PAUL KELLER: Thank you for the question an let me answer to the last bit about the export of what some people now call the European model.
First of all, I would argue that is obviously, like, I think, both -- that has been the intention of the entertainment industry, as the rights holders to make a model here that can be pushed into the rest of the world. It will obviously be for sake of kind of like the size of the market be very interesting to see what happens in the United States, if this discussion gains traction there.
In the meanwhile, we have heard -- like I have spoken to colleagues, for example, in South Africa and in Canada, where calls pretty much immediately after the directive to implement EU-style rules into their national copyright laws.
And the first and the important thing is that we need to remind other countries, there is nothing to copy yet. Right? There is no EU style. Like, a lot of this has been unspecified so far. It will depend on how it's implemented by the Member States, and some way, like, probably some general EU approach will emerge from that. If that's worth copying as a discussion to have then, probably it's not going to be.
At least we should caution -- we should caution people in other parts of the world of copying the EU approach at this stage because it has not been settled and it's still contested in the court. Key elements specifically this balance between user rights and the obligation to license and filter have not been resolved in any kind of like convincing fashion in any of the discussions that I have been part of so far.
So right now, like, it's probably -- and I can almost quote from a recent report by the Canadian -- the industry committee of the Canadian parliament for the rest of the world, to sit back and relax and see how Europe resolves this mess. And like in two years maybe it's time to have this discussion. But up until then, I would advise anybody working in any other part of the world, reminding their governments, this is not something that is settled. This is not something that is working yet, and there is large doubts about that it will ever work.
>> JOAO PEDRO QUINTAIS: I really want to echo what Paul said. Other legal innovations that we had in past, like the database directive, turned out not so positive to the point where the Commission itself recognized that in a report when assessing the directive.
So I would be extremely cautious and I take heart to the Canadian report that just recently came out and had a much more balanced approach to copyright reform where it took to heart not only what academics said but different members of civil society. So I would be extremely cautious about exporting something that doesn't exist yet.
>> BERHARD HAYDEN: Are there any other questions from the audience? Otherwise, I will pick up the question with Court of Justice once more.
>> AUDIENCE MEMBER: Yes. Hello. Excuse me. I'm Marianne. I'm here for the Internet rights and principles coalition, but my employer is a university. So a Goldsmith University of London, like many universities are signing up to linking their online educational material to large service providers, which include what we could call open cultural. And students are used to referring to these images, music, art works, as part of their academic study. They research and they upload them. And the best practice we try to teach is to always attribute accurately and appropriately. But none of these practices are sufficiently allowed for. And, in fact, from what I'm hearing today, underscoring my own misgivings about this so-called reform, it will become increasingly difficult. And as public institutions are linked to these commercial platforms, then they become liable, I assume for our so-called violations.
So young people are actually being prevented from a much more important human right, not an ownership right, but a human right to information, to education, to freedom of exchange of ideas. Of course, with appropriate attribution, but I don't see why we should impose a commercial monetized policy. I know this is the purpose for many of the debates.
Could the panel address the educational implications from the primary school, high school, and secondary education. I'm sure you have opinions. Thank you very much.
>> PAUL KELLER: We massively reduced the scope that it implies. It doesn't apply to educational institutions and it doesn't apply to any nonprofit institutions. There's relatively meaningful, strong opt outs there that try to limit the scope of Article 17 on for-profit platforms of any size, which is one of the problems.
Now with regard to the core of your question, what signal does this send to people in the educational system, younger people, learning, trying to engage with this wealth of information that they find online and what -- how does this concern their rights? It doesn't make the system easier to grasp. Certain noncommercial educational users should be fine if they attribute properly and not to enrich themselves but to educate themselves or in some other nonprofitting.
This kind of like opportunity has been lost. And like, traditionally we have tried to cater for these things that would set down the rule and say it's not copyright infringement if you use something for this purpose. All right, like, that's the structure of the thing.
What we are seeing across the board of the new copyright directive is an encroachment of licensing mechanisms. So these user rights, what you can or cannot do is becoming much more dependent on what rights holders actually allow you to do. And that's often very untransparent, and very opaque mechanisms that get negotiated at some level, but that have very meaningful impact on educators, on students on the ground and it basically makes the system more difficult for them to navigate.
So I think net specifically on people in the educational system, and maybe specifically on people in the educational system, that are with institutions that are not, like, universities in London tend to be super rich and can afford all of the -- compared to universities in other parts of the European Union. Anyway, they are not part of wealthy universities. Like, there's parts of the education system in the EU that are significantly less funded. To are them this will become very problematic because it assumes, like, stuff that can be licensed and bought and this basic right to educational users is being pushed away more and more.
>> WALTER VAN HOLST: I would -- well, I'm sort of disagreeing with Paul here. There are a bunch of exemptions in the upload filtering article on noncommercial platforms. Sort of putting that through successful efficacy through Wikipedia. Those apply to the platform that you run yourself. So if you as a university make your materials -- your lectures, your online classes available through one. Major online educational platforms, which are typically for profit, they are you are not necessarily in the clear in the sense that that platform may be forced to block part of your content because of spurious copyright claims.
So in that part I agree with Paul, unless you are a fairly well-funded educational institution, and you don't necessarily have to reply on those other platforms, then you might get into the clear to some extent. I'm not sure whether the exceptions are actually that helpful because there are a lot of gray areas, especially when it comes to educational institutions and not for profit platforms, between fully commercial, that -- there may be some legal uncertainty this anyway.
>> PAUL KELLER: So for the sake of fighting on stage. It makes it more entertaining. Of course, they shouldn't be doing this. Why should European public universities put their material on American for-profit companies' platforms and make that as a distribution platform.
If there's one thing which we could say is good in there, this actually -- like, the Article 17 gives privilege to nonprofit mat forms and maybe like the European educational sector and other sectors should get their act together and develop their own platforms so we are less dependent on the big American platform companies.
Like, I -- that is worrying that, like, basically, the entire discussion is structured on how, like -- on how we can engage with these commercial platforms. It's not a good thing, like outside of the copyright thing, you pointed to privacy yourself.
>> WALTER VAN HOLST: I agree with you. A public university should not participate in the surveillance economy in that way, and they have inadvertently do that. And they are by people in developing countries, else. Getting your own, nice, secluded university only platform up and running and making it available in, let's say African and English-speaking countries is another go. Someone who has a fight at the university and says to make that content available, you are not making life easier.
>> AUDIENCE MEMBER: Could I intervene as an audience member. I have a colleague who also has a question. Two things I would like to specify, I totally get the point about too many universities paying too much money for commercial US-based platforms. This is a huge business. I totally get it, but not are going that way, some are using Moodle and open course. The whole university of London, and it's tough because the push is to move away from that. It doesn't get you out of that problem, Walter, does it, because even attribution doesn't allow you freedom from being possibly charges all sorts of money.
So we are still back to square one.
I'm glad you are not telling me not to worry. You are, in fact, telling me I'm right to worry. Thank you very much.
And also rich is very relative in the higher education sector. The difference between global north and global south, that point being taken. But not all universities are rich. I would go into more details, but I'm in a public space and I will refrain.
>> BERHARD HAYDEN: Do you want to respond?
>> JOAO PEDRO QUINTAIS: I wake to make a small point for you guys not to fight anymore. What you touched upon is there's an exception for cross border teaching in Article 5. And I think that exception, it's only applicable if a there's no available licenses. I think this is an underlying issue, which is the licensing and by the policymakers in Brussels. Everything is available to license, both in the contest of Article 17 and the press publishers, and also for teaching activities. And I think if we want to have a positive impact of policy making is to kind of downgrade this idea that licensing is even the best first option in most cases, especially not for educational -- in educational situations, speaking as one who works in a public university.
>> AUDIENCE MEMBER: Yes, about a previous point. I like many things you say are important during the debate, but I have to disagree with the last intervention. I think it's not realistic what you propose. I think universities, they need to use all the tools available. So no to achieve their objectives and their -- and advance their mission.
I have seen already this discussion in other places, and so it leads to things like, okay, if universities only have to use statistic packages that are used in -- that are done in the country, or using services only from their own country, at the end of the day, you -- you are reducing the availability of innovation and really to produce the scientific knowledge. What is really more important? I think that -- the actors should be more careful and protect the contents independently of wherever the contents are published.
>> PAUL KELLER: I mean, this is probably a completely different discussion about, like, what we should do, but, like, if we look at one of the effects that this Article 17 will probably, have it was -- it was intended as a measure against the big dominant online platforms, and as much regulation that is specifically targeted at people, it probably will have the effect of entrenching the position of the dominant platforms, because it just, like compliance with this new level of regulation, the obligation to license everything, the obligation to have expensive filtering systems, the obligation to have some kind of, like, review processes for things are much easier to be there for big dominant, profitable platforms. They can build that into their cost of doing business and this will become a hurdle for others to come out.
And so I think one of the problems that we have in the policy making process here is our inability to imagine alternatives, right?
Like, I don't want to prevent anybody from making use, like -- I don't think the answer to things is preventing people from -- or institutions from doing certain, for making use of certain services, but I think especially, if we think about a broader field of digital regulation in Europe, like what we need only is not what we don't want but we need to figure out what we want. Europe is a big market space, 500 million people, it's one of the biggest markets in Europe and we need to come up with our own alternatives to, like, the big American companies, to a lesser degree because they operate here lesser but like the big Chinese companies operating in this space.
And to some degree, I would argue this ought to come from the public sectors to some degree. Like, we have a tradition in Europe of having communication services that are publicly owned. The public broadcast service, right? Like, in internet regulation, through Internet regulation, we have pushed these players to the side, saying this is not a business, this is a private market space and you are distorting the market space and now it's dominated by a couple of American companies and we figured out how bad that is and it's coupled with a profit motive and where this goes.
I think we ought to go back and say that the public institutions in Europe, we need to give them a role in structure, in competing for information provision in this space again.
But I don't want to tell, like, this -- it can't come by saying you have to make use of this and not use the err things, but as long as -- if we are making regulation only by trying to combat what's already out there, without coming up with our own alternatives and use our imagination, like, we will probably end up playing catch-up, because this was to some degree also an exercise in catch up, right? Like, these are ideas that came up ten years ago and the business models evolve and this will probably be something that is relatively irrelevant, like, five years from now.
>> BERHARD HAYDEN: With risk watch, I would like to give you the microphone.
>> KRISTINA OLAUSSON: Okay. So just maybe summing up, I think that the discussion that we are having shows that -- and as you said in the beginning, there was a need to revise the directive. It wasn't up to date anymore, and the ecosystem of the Internet has changed fundamentally the past decade. So in that sense, discussing how to distribute liability is a good discussion to have. But as you say, we have to -- we have to come up with a solution on how we want that.
The copyright directive was one answer to a limited problem and it gave in the end a more targeted scope, which in that sense is good, focusing on those would share content with a broader audience, with the public.
However, I think an interesting question to pose here is also what is coming with eCommerce directive or the so-called digital services act if we in two years have the copyright directive transposed that could coincide with a time we also might have a new regulation on the eCommerce directive or the digital services act, how will these two work together as many have questioned the compatibility between Article 15, the rule against general -- a general obligation of monitoring and the commerce directive, and what we have now in Article 17 of the copyright directive. So this is not solved by the copyright directive. These questions will continue to have been -- to be discussed and hopefully we'll have something in two years that also is in line with the -- with other revisions of other legislation.
>> JOAO PEDRO QUINTAIS: So very quickly, final thoughts. I agree with part of what you said and disagree with part. I think the intermediary responsibility is the discussion we should have had. We should have started it before. Trying to have that discussion through the back door in the copyright directive, particularly in Article 17, was absolutely the wrong way to go about it and were seeing the results now.
My impression is also we have to step away, especially probably content industry should step away from trying to think that copyright is the tool to solve problems with business models. Copyright is not the tool for everything. There are good things in the directive in moving forward. And there are positive things we can do in implementation and I think for civil society and maybe because we are in this forum, we should focus on that, this is where the energy should be. The national legislation that can actually broaden availability and access to content, while respecting the need to remunerate, but not fantasizing the notion of the exclusive right and the need to get permission for everything.
>> WALTER VAN HOLST: Very short remark and it's not even mine. It's Sonia Mizeners. If you regulate the Internet, if it's only Google, Amazon, Facebook and Apple, it will only become Google, Amazon Facebook and Apple.
>> BERHARD HAYDEN: Okay. With those last words, I will move over to the last part of every session here at EuroDIG which are the minutes. And that wonderful person over there, Cedric has boiled down all the things we said into a short amount of text. I'm not going to read it out loud, but the way it works as you are probably aware, we settle on this paragraph consensus. If someone strongly objects to one of these paragraphs in the message, please go ahead and contact us at the panel here after the session.
But I see that this is apparently not the case. So with that in mind, I would like to thank all the people here on panel. Also the remote participation, and you in the audience. Cedric, once again. And, yes, let's see what the world brings us in the ten years that we just tried to contemplate about.
This text, document, or file is based on live transcription. Communication Access Realtime Translation (CART), captioning, and/or live transcription are provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings. This text, document, or file is not to be distributed or used in any way that may violate copyright law.