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[thread] Here is our summary of the academic statement on safeguarding user freedoms in implementing #Article17 of the #copyright directive that was released earlier today and has been endorsed by 51 copyright scholars from across the EU https://www.ivir.nl/recommendationsarticle17/ 
1/13 The statement offers recommendations on user freedoms and safeguards included in Article 17 of the DSM Directive which establishes new rules for #UGC platforms (called OCSSPs in the directive). #fixcopyright
2/13 OCSSPs have 2 ways to avoid liability for their users’ uploads: licensing (17(1)) or preventing availability (a.k.a #uploadfilters 17(4)). The legislative design favours licensing. MS shall explore mechanisms for broad licensing and limit the application of filters.
3/13 The preventive measures must not block uploads that do not infringe © (e.g. under exception) and all countries must implement exceptions allowing quotation, criticism, review and use for the purpose of caricature, parody or pastiche, to protect users in the EU (17(7)).
4/13 Rational national lawmakers implementing the exceptions in Art 17(7) should take this opportunity to fully harmonize the respective national exceptions beyond uses concerning OCSSPs. They should also implement the incidental use exception.
5/13 Under Art 17(9) rightholders must “duly justify” their removal requests. OCSSPs must implement “effective and expeditious” mechanisms to process users’ complaints over blocking “without undue delay”. And decisions to disable or remove content require “human review”.
6/13 Art 17(9) gives Member States a margin of discretion when implementing these procedural safeguards. This margin should be used to ensure that OCSSPs optimise their services so that they prioritise user rights/freedoms over the preventive measures in Art 17(4).
7/13 This would ensure that the measures are proportionate (as required by 17(5)), respect the mandatory nature & fundamental rights justification of the user rights (17(7)) and comply with the requirement that the Directive “shall in no way affect legitimate uses” (17(9)).
8/13 Preventive measures shall not block content, unless in cases of prima facie (obvious) © infringement. If content is blocked, users are entitled to the safeguards in 17(9). In all other cases, there should be no presumption that the matched content is infringing.
9/13 When uploaded content does not meet the prima facie infringement threshold but matches the “relevant and necessary information” provided by rightholders, OCSSPs must offer users the possibility to declare that the content is used legally (e.g. under an exception).
10/13 If a user does not provide such a declaration within a reasonable period of time, during or following the upload process, then the OCSSP should be allowed to disable or remove access to the content.
11/13 If a user provides such a declaration, the declaration should automatically qualify as a “complaint” under Article 17(9), triggering the mechanism set forth therein. The OCSSP must then inform the relevant rightsholder of this complaint.
12/13 If the rightsholder wishes to remove or disable access to the content at issue it must duly justify its request, i.e. it must explain not only why the use in question is prima facie an infringement but also why it is not covered by an exception.
13/13 OCSSPs then decide to disable or keep the content based on human review. Since the legal status of the upload is only determined at the end of this procedure the content must remain available to the public and the OCSSPs liability must be paused during this procedure.
