Liberties Contribution to the 4th Copyright Stakeholder Meeting

​The European Commission organized Stakeholder dialogues to discuss best practices for cooperation between online platforms and copyright holders. Liberties was invited to present on the human rights angle.

The fourth stakeholder dialogue took place in Brussels on 16 December, and will continue with a series of future meetings. All of them are streamed online.

Here you can read the speech delivered by our editor-in-chief, György Folk:

Filtering mechanisms are not working correctly. First, they don’t protect works adequately. Second, they can only deal with certain types of files. Third, there is no way that these automated decision-making tools can properly analyse content.

To be clear, no one expects them to work 100% of the time. But, at the same time, we have to make sure that if a software has a 95% success rate, then we do something about the other 5%. With over-filtering, false-positives, with software bugs, to name a few.

This is why we ask the Commission to create safeguards, allowing for real people to get in touch with real people when an issue arises. And where OCSSPs (online content sharing service providers) ensure that the complaint mechanisms are working properly.

Therefore, Liberties suggests using the GDPR as example, and I quote from that:

„People should have the right not to be subject to a decision, which may include a measure, evaluating personal aspects relating to him or her which is based solely on automated processing and which produces legal effects concerning him or her or similarly significantly affects him or her without any human intervention.“

This requirement set out in the GDPR is applicable to our topic.

And I go further. Again, from the GDPR:

„We, users also need to obtain meaningful information about the logic involved, as well as the significance and the envisaged consequences of such processing for the data subject.“

To put it simply: we need humans to intervene, humans to whom users can talk within a reasonable time frame, and there needs to be an opportunity to appeal against any decision taken.

Further request:

After the last Stakeholder Dialogue, the Commission will elaborate guidelines set out in Article 17 of the DSM Directive. However, we don’t know how detailed the guidelines will be.

The guidelines should safeguard the freedom of expression of users by finding other solutions than upload filters. The guidelines should also ensure the availability of works or other subject matter, uploaded by users, which do not infringe copyright and related rights, including where such works or other subject matter are covered by an exception or limitation, according to Article 17 (7.) This we should learn from the recent transposition of France.

Having said that, we kindly ask the Commission to share the draft guidelines with the stakeholders and the users. The guidelines, drafted by the Commission, should not be the final step of the dialogue, but instead part of the discussion. The purpose of this consultation should also be, besides the ongoing debates, to seek feedback on whether the document can be further improved to ensure compliance with the Charter of Fundamental Rights.

This request is based on the requirement of transparency, which is a core principle of the rule of law.

We all know that the DSM Directive does not provide sufficient legal certainty; this is why we need the guidelines.