Stakeholder dialogue Phase III: content contextualisation requires a pair of human eyes

The stakeholder dialogue on Article 17 of the copyright directive is in full swing. After the four meetings that took place since November 2019, the third and final phase of the dialogue will kick off on 16 January and will focus on the practical application of Article 17. Ahead of this meeting, the Commission has circulated a discussion paper identifying key areas and questions that were raised during the first four meetings. In this context, the timing is perfect to take stock of the dialogue up until now, and to bring forward our views and solutions to challenges most critical to us.

We represent associations of small and medium-sized publishers, media companies and native digital outlets, committed to providing high quality, daily news stories to our 140 million readers. Our members decided to pool their resources together when they realised that the debate around copyright was hijacked by the confrontation between large tech companies and big publishing conglomerates. Meanwhile, the voice of small and local publishers was not heard; it was even dismissed.

Our key takeaway from the stakeholder dialogue so far is that while currently available content-identifying technologies (i.e. upload filters) are excellent at matching content with a target file, they are ineffective at contextualising content use. In other words, every upload containing copyrighted content – used for e.g. a news reportage – risks to be taken down if the uploader is unable to produce a license. In addition, as contextualised content use requires human analysis, safeguards are indispensable. In the case of local or regional media publishers, news items last at best six hours. Consequently, pre-emptive take down can severely undermine small publishers’ business model(s).
As stated in the discussion paper, the Commission recognises the problem of wrongful takedowns. In light of this, the Commission poses a topical question to stakeholders: what should be done in practice in order to avoid the taking down of legitimate content.
Directly linked to wrongful takedowns – and the second main concern for us – is the question of accessible redress mechanisms. At present, complaint mechanisms differ broadly from platform to platform and are overall complicated. In addition, various stakeholders have expressed their concerns as to potentially costly legal actions linked to redress mechanisms currently available. Smaller publishers consisting of only a couple employees can also easily be ‘buried in legal paperwork’, as they have no legal department working around the clock to deal with such matters.

What could then be done to avoid takedowns of legitimate content, and what features should redress mechanisms contain to be effective and accessible?

First and foremost: exceptions. Article 17(7) states users are to be guaranteed exceptions when uploading content for purpose of, amongst others, review. The Commission guidelines should include an explicit reference to content used for news reports or online press publications, which should be safeguarded from upload filters. In order to avoid abuse of such status, a regular review mechanism (possibly weekly, bi-weekly, or monthly) could be introduced. Press publishers might then be categorised in varying degrees of ‘good behaviour’. Such an approach might guarantee there is less (ideally none) takedowns of legitimate content, while ensuring copyright is not infringed. In case of a takedown claim – wrongful or not – the streamlined redress mechanisms offered shall minimise the risks of legal action.

For small and medium-sized publishers with local or regional reach, over-filtering can be fatal. Safeguards are vital! We hope the Commission will recognise this in the written guidelines on the implementation of Article 17.

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