Tag Archives: copyright week

Remedies, Removals and Rights: (Lack of) Conclusions So Far from the EU Stakeholder Dialogue on Upload Filters

The third day of Copyright Week 2020 is focusing on the topic of remedies – the compensation that those found guilty of infringement are expected to pay to ‘make things right’. In the United States, for example, these can be very high, with the intention of having a dissuasive effect, although often final sums are the result of out-of-court settlements.

However in Europe, through the Copyright Directive, the goal appears to be to prevent copyright-infringing content being made available in the first place, and permanently remove it from circulation, at least through internet platforms. This is the logic behind Article 17, which looks to increase pressure on platforms (primarily YouTube) to do more to stop videos which contain copyrighted content getting online.

The Article contains various flaws, not least the fact that despite the original goal being to strengthen the position of rightholders in their negotiations with YouTube, it covers all types of work, and all but the smallest and newest platforms. It also includes a fundamental contradiction between the obligation to make, ‘in accordance with high industry standards of professional diligence, best efforts to ensure the unavailability of specific works and other subject matter’ (Article 17(4)(b)) – almost universally assumed to mean the use of filters of uploads, and the prohibition of ‘general monitoring obligations’ (Article 17(8)). Added to this are the demands in Articles 17(7) and 17(9) to protect uses under exceptions and limitations.

In order to try to resolve some of these issues, Article 17(10) of the Directive calls for a stakeholder dialogue in order to provide guidance on these issues. Five meetings in, it remains hard to see what sort of document will emerge. If nothing else, this can hopefully serve to underline the need to resist any similar legislation elsewhere.

The below sets out a number of key points so far, based on IFLA’s engagement in the discussions alongside partner organisations such as Communia:

There’s a difference between detecting content and detecting infringement: the dialogue has heard a number of presentations from companies selling software which aims to detect copyrighted as it is uploaded to internet platforms.

While the strong variation in the claims made (from being able to detect a film in a fraction of a second to needing a somewhat longer, for example), it has been consistently clear that such tools cannot determine whether an exception of limitation to copyright is at work

Therefore, while some involved in the dialogues have sought, effectively but wrongly, to deny the existence of exceptions and limitations, it seems clear that for a determination to be made between whether  use of a work is infringing or not, filters are not enough – human moderation is needed.

There’s no consensus about how much of an answer can collective management provide: one of the options for internet platforms presented in the Directive is to obtain licences for uploaded content. Clearly, when it is working well, collective management has the potential to provide at least a partial answer that would make it easier for platforms to clear at least some rights, when needed.

At the same time, representatives of many rightholders underlined their discomfort with an excessive focus on collective licensing as solution. In many countries, collecting societies do not cover every sector or type of right, and there may be questions about governance and representativeness, especially given the diversity of content uploaded onto platforms. There can be major differences between sectors, and types of right, in attitudes.

Finally, there was strong doubt expressed – including by the Finnish government representative – that extended collective licencing could work across borders.

There is a lack of data about what is really going on: the Directive underlines the need for transparency about the operation of platforms in order to inform the Dialogue.

As a result, there have been calls for figures to be shared on the volumes of works uploaded that contain copyrighted content, what share are then determined to be infringing, what share is then taken down or monetised, and how often take-downs or decisions to monetise are challenged, successfully or otherwise. However, this information is rarely if ever forthcoming, meaning that it can be difficult to understand the scale of the challenge faced.

Size matters: a point that has repeatedly emerged during the discussions is the difference between bigger and smaller players, be they creators, platforms or uploaders. For creators, there is a fair amount of evidence that exposure is essential for newer entrants as a means of building a following. However, established creators understandably do not want to lose revenues.

For platforms, the larger ones are generally able to pay for – or create – their own tools (including armies of content moderators) for trying to determine infringements. For smaller ones, it remains unclear if meaningful technologies are available at an affordable price.

Finally, for uploaders, broadcasters underlined concern about their own content – for which a priori they have cleared all rights – being blocked. This raises questions about whether some uploaders might enjoy privileges, something that could provide controversial amongst others.

There is a risk of abuse: A telling intervention from Facebook in the 4th meeting underlined their concerns about mistaken claims of copyright, and the degree to which they only make filtering tools available for use by rightholders who could trusted to use them fairly. It has also become clear that filtering companies themselves do not verify the legitimacy of copyright claims before providing the tools to enforce them.

Clearly this is a difficult area, as there are different ways of demonstrating ownership of copyright from one sector to another. As some rightholders underlined, this can slow down assessments, and so cause harm. At the same time, without any effort to show ownership, the system is wide open to abuse.

There is a need to remind everyone what’s at stake: finally, but importantly, a key issue remaining to be discussed is how to ensure that whatever system is chosen must protect fundamental rights, including those protected through exceptions and limitations such as those for quotation, criticism, satire, parody, and pastiche.

The risk, in a situation where there is no firm guidance, but rather decisions are left up to national authorities and courts, is that this aspect is forgotten among all the efforts to tailor rules to the specific situation for the sector, type of rights and country involved.

A key task for libraries and others, both in the discussions in Brussels and in national implementation, will be to ensure that this is not the case.

Copyright Week Day 4: Save the Messenger! Why Libraries Should Care about Safe Harbour

Graphic for Day 4 of Copyright Week 2019Discussion about questions of free speech and access to information is traditionally based around a divide between creators and users – or authors and readers in the case of books.

When something goes wrong – an author goes beyond the limits of acceptable free speech or plagiarises, or a reader pirates a work – it makes it easy to ascribe blame.

Of course, there have long been many other players in the chain, helping works get from the one to the other, from publishers or record companies to distributors, bookstores and libraries. These are essential as connectors between authors and readers. Without them, there is no connection, no exchange.

All of these actors are, in principle, established in order to promote and make legitimate uses of works. Of course, they may risk making mistakes – it is clear that the boundaries of fair uses of works, as well as of free speech, are unclear.

This makes it more difficult to establish what happens when something goes wrong. To what extent should those through whose hands a work has passed be held responsible for the acts of others? What should they do when mistakes happen?

It seems appropriate that these actors should enjoy the benefit of the doubt. A publisher – who of course knows a book inside out – should not be prosecuted when a book they publish can legitimately be seen as free speech.

Libraries and bookstores, which will have an idea of their stock without necessarily having been able to read everything, should be held to a lower standard. If they act in good faith, and act rapidly when due process leads to the conclusion that a mistake has been made, should also not be held accountable.

And of course distributors, who cannot be expected to read the content that sits in the back of the van, should logically be exempt.

This is, in effect, the concept of safe harbour. It ensures that actors which are essential to making the connection between writer and reader are able to use their skills and best judgement in order to go about their jobs.

They can take risks, and thanks to this, innovate and bring new ideas and services which benefit society as a whole. Crucially, one mistake should not come at the expense of all of the legitimate services and support provided.


New Actors, Old Issue?

The internet adds a new element to this – the wires, servers, hosting services, and platforms that have massively facilitated the distribution of books, articles, and other works.

Again, with some limited exceptions, these are established in order to promote and facilitate legitimate uses. They often serve other purposes too, such as communication as well as the personal sharing of original works.

They have become as essential to the connection between creators and readers as the delivery van once was (and of course still is in some markets). For libraries also, maximum access to information over the internet is a key means of providing services.

So what to do when something goes wrong? When someone writes something dangerous or unjustifiably discriminatory? When a reader makes an illegitimate copy of a work, or access something illegal?

The concept that emerged with the WIPO Copyright Treaty of 1996 was the same safe harbour. The idea that when someone acts in good faith, and acts rapidly when a mistake is pointed out, then they should not be held fully responsible.

The standard varies from service to service. Just as it varies between publishers and delivery vans, the same goes with the difference between the editors of news sites or blogs and the hosting services or internet service providers, or the many other actors involved in getting information from keyboard to screen (including, in the case of library computers, the screens themselves!).

While technical tools exist that can indicate potentially illegal activity, these cannot be relied upon, with growing evidence (here, here, here) of automatic filters creating havoc with legitimate speech.

However, there is increasing pressure to restrict the idea of safe harbour and create liability (for copyright infringement, dangerous content etc).

This is driven in part by a frustration at the fact that finding, catching and prosecuting the person or organisation at the origin of the illegal behaviour can be difficult. Unlike platforms, ISPs or libraries, they may not have a clear physical address and legal existence.

In part, it doubtless also comes from the fact that some of these intermediaries have grown very rich, or enjoy a position in the market that allows them to dictate terms, more or less, to others.

Neither of these arguments, though, justify an attack on the concept of safe harbour itself. This is all the more so given that such restrictions risk not only hurting commercial platforms, but also other actors such as Wikipedia, libraries and others.

Trying to draw a line between platforms that benefit and platforms that don’t is fraught with difficulty. It brings the risk that all platforms and services will feel the need to implement more restrictive policies that will hurt most innovators and risk takers.


Libraries therefore have a major interest in protecting safe harbour if they are to be able to fulfil their missions – both inside their walls and on the wider internet.

Copyright Week Day 3: Public Domain, Privatised Knowledge, and Libraries

Copyright Week Day 3 Image1 January 2019 saw a greater than usual focus on the importance of the public domain. For the first time in 20 years, new works started to go out of copyright in the United States, following a 20 year hiatus.

There was a lot of celebration – and performances of ‘Yes, We Have No Bananas’. But there was also reflection on the importance of the public domain itself.

One piece, a couple of weeks earlier by James Boyle in The Economist but revisited for the occasion, highlighted the idea that there was a tragedy of the digital commons.

The author referred back to the idea that without a form of government (or privatisation), common resources would quickly disappear as individuals seek to maximise their own gain, at the cost of others.

Villagers would allow their cows to eat all of the grass on the common land. A farmer would take all of the water. A logging company would cut down all of the trees.

The author worries that the same arguments are being used to close off the digital commons, under the pretence that without this control (either by government, or by private rightholders), nothing would be created.

Starting in the 90s, he argues, this has led to rules on digital content which have risked rewarding the ideas of the past at the expense of the ideas of the future.

He suggests that open initiatives, such as open source software, the Human Genome Project, or Creative Commons have shown what can be done when knowledge is shared.


Libraries, the Commons, and the Not-100%-Private

For the time being, openly licenced work remains just one model under which works are shared. The retention of rights – the privatisation of knowledge – remains common. This is where the limitations and exceptions to copyright that laws often give to libraries come in.

These allow for some limited access and use possibilities, in the case of libraries for a public interest goal. They don’t make works ‘common’, but they make them a little less private. They allow readers to analyse, to copy or quote short sections, to critique and parody, and to use for research amongst other things.

This is important. Copyright is a monopoly power, and brings with it the problems associated with monopolies – under-supply and over-charging. This benefits the rightholder, but leads to costs for the consumer – usually those less able to pay.

The problem now is that these flexibilities are being increasingly restricted. Thanks to a mixture of technology (digital rights management) and a failure to update laws (in particular to account for the shift from paper to digital), the control enjoyed by rightholders has never been greater.

Add to this the growing pressure on platforms to pre-filter any uploaded content in case of potential copyright violation (likely also excluding large amounts of material making use of exceptions and limitations), and the possibility to privatise knowledge completely has never been greater.

This has been good news for rightholders, and has doubtless led to some new revenue streams. It has also created new possibilities for price discrimination (do you pay for read-only access? Can you copy elements? Can you carry out text and data mining?).

However, it risks creating greater costs to consumers and future than it creates benefits to producers, as monopoly powers become more complete, and there is little incentive, except among the more far-sighted, to allow those limited, public interest uses that are at the heart of what libraries do.


This is why the effort of libraries to encourage exceptions and limitations to copyright goes hand-in-hand with their support for open access.

The two efforts – to protect and expand the public domain, and ensure that other works are just public enough to contribute to further creativity (and in particular that libraries can fulfil their missions!), without undermining the business model behind their creation – are both necessary.

Read more about IFLA’s work on copyright.