Fundamental Rights Constraints of Upload Filters after the CJEU Ruling on Article 17 of the Copyright Directive
The CJEU decision on Article 17 of the copyright directive has defined a framework for the use of automated content moderation. The Court considers filtering obligations compatible with the right to freedom of expression and information as long as they are limited to use cases that allow for a robust automated distinction between legal and illegal content. In the context of Article 17, upload filters may therefore only be used by online platforms to block manifest infringements of copyright law. The Court leaves it up to the Member States to ensure that legal uses remain unaffected by their national transpositions of Article 17.
This judgment raises a host of important questions for the enforcement of copyright law as well as for the compatibility of upload filters with fundamental rights even beyond copyright law. To discuss these consequences, COMMUNIA and Gesellschaft für Freiheitsrechte jointly hosted the Filtered Futures conference on Monday, September 19th 2022, in Berlin.
08:45-09:15 Door opening
09:15-09:45 Welcome and opening remarks (Susanne Zels, head of politics & partnership, Robert Bosch Stiftung, Felix Reda, GFF)
09:45-10:00 Coffee break
10:00-12:00 Session 1: Fragmentation or Harmonization? The impact of the Judgment on National Implementations
While the CJEU has rejected the Polish challenge to Article 17, the Court has formulated a number of requirements for ensuring that national implementations are fundamental rights compliant. In this light the opening session of the conference will examine the consequences of the judgment for Member States’ implementations of Article 17. What are the requirements established by the judgment for national legislators? How do the existing national implementations measure up to these requirements? Which implementation strategies are available to those member states that still have to implement the directive? And have platforms already reacted to the existing national implementations?
- Bernd Justin Jütte (University College Dublin): Imperatives for implementing Article 17: the importance of national implementations.
- Finn Hümmer (Stockholm University): Implications from C-401/19 for national transpositions under the light of freedom of expression
- Jasmin Brieske (Goethe University Frankfurt am Main): The impact of the enactment of the German OCSSP Act on selected online platforms.
- Christina Angelopoulos (University of Cambridge): The national implementations of Article 17 of the EU’s CDSM Directive
- Moderation: Paul Keller (Communia)
12:00-13:30 Lunch break
13:30-15:00 Session 2: Balancing Enforcement & Usage Rights in Practice
Protecting legal forms of expression from automated blocking decisions by online platforms is not just a task for the national legislators when transposing Article 17, but also a question of implementation of those provisions by regulators and courts. Who is going to ensure that filtering systems will leave legal uses of copyright-protected works unaffected in practice? How can the balance of competing rights be enforced in cross-border situations? How does the ban on general monitoring obligations as interpreted by the CJEU constrain the content moderation obligations of platforms – in the context of Article 17, but also when applied to other types of illegal content? Will the Digital Services Act improve users’ access to effective remedies against over-blocking?
- Natasha Mangal (University of Strasbourg): Regulating Creativity Online: Proposal for an EU Copyright Institution
- Daniel Holznagel (academia): Don’t touch the ceiling - Why we should not narrow the EU no-monitoring-obligation-rules
- Martin Husovec (London School of Economics): Mandatory Filtering Does Not Always Violate Freedom of Expression: Lessons from Poland v Council and European Parliament
- Moderation: Felix Reda (GFF)
15:00-15:30 Coffee break
15:30-17:00 Session 3: Beyond the Judgment: The Future of Freedom of Expression
In its ruling, the CJEU was of the view that the procedural safeguards present in Article 17 protect the ‘essence’ of the right to freedom of expression of the users of online sharing platforms. But many argue that filtering mechanisms can still pose real risks to fundamental freedoms and to the flourishing of parodies, caricatures and pastiche. Is the CJEU classical approach to proportionality balancing apt in a filtered online environment? Do we need a new conceptualisation of the ‘essence’ of fundamental rights? Can the case law from the CJEU and the European Court of Human Rights on freedom of expression offer avenues to better the future of parodic uses? Finally, are we moving towards a European Right to Remix?
- Kevin O’Sullivan (Dublin City University): A new conceptualisation of the ‘essence’ of fundamental rights
- Sabine Jacques (University of East Anglia, Law School): A two-tier system for freedom of expression
- Till Kreutzer (iRights.Law): Towards a European Right to Remix (?) - On the new Pastiche exception in the German Copyright Act
- Moderation: Teresa Nobre (Communia)