Earlier this week, the French Senate unanimously voted to give power to the French government to implement provisions of the Copyright Directive, among others Article 17. Germany published a proposal to implement Article 17 by the end of June. So did Hungary and the Netherlands. With time ticking away, EU member states are not waiting for the Commission anymore, even though it would be utterly important to apply Article 17 coherently to ensure the same rights and require the same obligations across Europe. It would also ensure that the fundamental rights of the users are fully respected. According to Article 17 (10) of the Directive The Commission shall, in consultation with online content-sharing service providers, rightholders, users' organisations issue guidance on the application of Article 17.
The debate over Article 17 captured lots of attention, and it was voted through by a very narrow margin in Parliament. The final outcome was a compromise that made a direct reference to the fundamental rights of the users. The balance between the interests of platforms, rightholders, and users was a very important achievement of the trialogue, and it should be upheld. The balance should not be between Hollywood and Silicon Valley. The EU's interest is to pay attention to the small European start-ups and innovation as well as users' rights – and these are equally important in setting up this equilibrium.
Article 17 left a significant margin of discretion for the EU member states when implementing Article 17 into national law. But it should not mean that the member states can disregard to fully comply with the Charter of Fundamental Rights. Freedom of expression, freedom to access information and data protection are at stake.
Exceptions and Limitations in DSM Directive support not only freedom of expression, but also access to information. The COVID-19 pandemic clearly proved that access to information and exceptions for educational purposes are essential to our children's education and our shared prosperity.
Transparency requirements are essential. It is also connected to competition rules and data protection. These go hand in hand. Therefore, member states must require transparency around the operation of both platforms and rightholders. This is also in the interest of the Commission, providing it with reliable data about these big US companies.
The Copyright Directive does not impose general monitoring obligations, and mandatory upload filters are avoidable. It was the compromise solution by the end of the trialogue, and it must be maintained. There is also the matter of trust in European institutions. Users were promised on so many occasions – by Parliament, by member states, and by the Commission – that no upload filters would be introduced.
The application of the GDPR is essential. Any algorithm-curated content moderation, such as using upload filters, means personal data processing. Under Article 22 of the GDPR, users have the right not to be subject to automated decision making without human intervention. This general rule is applicable for upload filters. The right of the users to contest the automated decision-making process entitles them not to give consent to any kind of automated filtering method without human intervention.
These safeguards are essential to protect users' rights. Any solution that is not fully in compliance with the Charter of Fundamental Rights is unacceptable. Therefore the guidelines would be of utmost importance to be published as soon as possible to give guidance to the member states and to avoid contradiction between member states' legislation and the Charter.
