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We are thrilled to release our Guidelines for Implementation of the DSM Directive.

These guidelines explain different provisions of the new Copyright Directive and make suggestions on what to advocate for during the implementation process of those provisions in the EU Member States. They are aimed at local advocates and national policy makers, and have the general objective of expanding and strengthening user rights at a national level beyond what is strictly prescribed by the new Directive. 

Communia partnered with LIBER (Articles 3 and 4), IFLA (Article 6) and Europeana (Articles 8 to 11) for the creation of these guidelines. The guidelines are part of a wider implementation project of COMMUNIA and its members Centrum Cyfrowe and Wikimedia, which includes a range of activities (including our transposition bootcamp) to make sure that local communities in as many Member States as possible participate in their national legislative processes.  

There is room for improvement in the DSM Directive

The two and a half years of public discussions of the new Copyright Directive were largely centred on a small number of problematic clauses (the press publishers right and the upload filters). However, the Directive also includes a number of provisions that improve the existing EU copyright rules (a number of new copyright exceptions and protections for the public domain).

While the national implementations will have to include all the problematic aspects of the new Copyright Directive, there is some room for meaningful improvements, and some measures can be taken to mitigate the worst provisions of the Directive. The EU Member States have until 7 June 2021 to implement the Directive into their national laws. 

Expanding and strengthening user rights

Our detailed proposals try to achieve the general objective of expanding and strengthening user rights by suggesting that, during the national implementation process, Member States make use of the following flexibilities:

• use the policy space available under existing EU laws (such as the InfoSoc Directive) to adopt or maintain in force copyright exceptions that are broader in scope than those mandated by the new Copyright Directive (as permitted by Article 25);
• use the flexibilities given by the new Copyright Directive to reject options that would make a copyright exception subject to terms and conditions that harm the public interest or set dangerous precedents for user rights;
• make use of their competence to legislate in the field of copyright, to protect all national exceptions from contractual override;
• put in place a rapid-response, transparent system to ensure that the beneficiaries of copyright exceptions can effectively and speedily use content that is protected by technical protection measures;
• make use of their competence to legislate in the public domain field, to adopt stronger safeguards for the protection of the users’ right to freely enjoy public domain works;
• use the flexibility given by new Copyright Directive to fully explore legal mechanisms for granting wide authorizations to online content-sharing platforms and limit, to the extent possible, the application of filtering technologies, while adopting strong user rights safeguards.

Acknowledgements 

Several people were involved in this process of interpreting the new Copyright Directive and providing guidance on how to shape national rules in a way that benefits users and the public interest. It was not always easy to make sense out of this piece of legislation. So, we are very thankful for all their time and patience.

In particular we would like to thank authors Ariadna Matas, Benjamin White, Dimitar Dimitrov, Paul Keller, Maja Bogotaj, Natalia Mileszyk, Stephen Wyber, Teresa Nobre and Timothy Vollmer for gathering this detailed knowledge about the Directive and giving us so many ideas to improve national copyright laws from a user rights perspective. Teresa Nobre was our tireless project coordinator, and we could not have done this without a grant from the Open Society Foundations.

• Read the guidelines: guides.communia-association.org
• Tweet about the guidelines: Today @communia_eu released its guidelines for the implementation of the #DSMDirective. The guides have a user rights perspective and are aimed at advocates and lawmakers working on #copyright issues and wishing to #fixcopyright locally. guides.communia-association.org
• Send us feedback: We are very much seeing these guidelines as living documents that can be improved based on feedback or external developments in the implementation process. You can send your feedback via email to transposition@communia-association.org or by commenting directly on the online version of the guidelines (to do this, you need to be logged into the platfrom that we are using (notion). For this you can make a free account at: https://www.notion.so/login).
• Endorse the entire guidelines or individual guides: if you are part of an organization that would like to endorse the guidelines, send us an email transposition@communia-association.org