One of the more remarkable aspects of the Commission’s communication “Towards a modern, more European copyright framework” from last december was how much attention it paid to issues faced by Cultural Heritage Institutions. In the communication the Commission announced no less than four different interventions aimed at modernizing those aspects of the copyright framework that govern how Libraries, Archives and Museums can operate in the digital environment. These include the introduction of a new exception for Text and Data mining, updates to the exception for the preservation and research and private copy exceptions and the ambition to make ‘it easier to digitise out-of-commerce works and make them available‘.
As we have argued here before, Europe’s cultural heritage institutions deserve copyright rules that allow them to fully embrace the opportunities offered by the digital environment. And as we have noted before we are not alone with this opinion. Both the European Parliament (in the form of the Reda report) and prominent cultural heritage institutions from across Europe (in this open letter) have made the point the Libraries, Museums and Archives should benefit from exceptions and limitations that also apply online.
While it is unclear at this point how the commission intends to make good on its announcements from December there is some legitimate concern that heeding to pressure from publishers and other rightsholders the Commission will propose only minimal updates to the existing system and instead suggest ‘solutions’ based on (extended collective) licensing.
In this situation LIBER, IFLA, EBLIDA, Europeana and Libraries2020 have joined forces and have issued a joint statement with a list of recommendations to adapt Exceptions to Digital and Cross-border Environments. In addition to arguing for updated exceptions the five organisations also point out that currently the rights granted by exceptions and limitations are routinely overridden by contracts and/or technical measures:
The library and broader cultural heritage community supports a balanced copyright framework that not only recognises citizens’ right to information, but also respects authors’ rights to fair remuneration for their work. However, libraries and audio-visual collections in particular are witnessing first-hand how fragmented implementation of exceptions under EU copyright legislation is an increasing barrier to cross-border access to content, preventing progress in particular for students and pan-European research projects. To compound this, in all but four European Member States (Belgium, Ireland, Portugal and the United Kingdom), contract terms can override existing copyright exceptions, which further undermines the goal of a coherent European copyright framework. […]
The education exception benefits teachers, students, and researchers who need access to all types of educational and informational resources that are often protected by copyright. This exception balances the right to education with the rights of authors. Maintaining the balance is never easy, and some issues still await their interpretation in Estonia. Still, Estonia enjoys the widest education exception provisions among all EU member states.
Within the Best Case Scenarios for Copyright series, we present Estonia as one of the best examples for education. Below you can find the basic facts and for more evidence check the Best Case Scenario for Copyright – Education in Estonia legal study. EU, it’s time to #fixcopyright!
What is an education exception?
- An education exception to copyright relates to cases where protected works of all types are used for educational purposes or scientific research, both offline and online.
- The exception is justified by the public interest of access to education.
While the European Commission is still busy determining what changes to propose to the EU copyright framework this fall, some stakeholders have decided that instead of waiting for an update of the EU copyright rules (that is at least four years away), they are better of attempting to expand the existing rules. Last year the Dutch Association of Public Libraries (VOB) started a legal procedure against the Dutch organization tasked with distributing to authors the remuneration that libraries pay for lending out books (Stichting Leenrecht).
In addition to paper books, the VOB wants to lend out e-books, but is concerned that the EU directive on the rental and lending rights of books does not cover digital lending. Instead of waiting for an update to the directive, the VOB decided to go to court to clarify the issue. The Dutch Court subsequently referred the case to the the Court of Justice of the European Union (CJEU) and asked it to answer the question if digital lending is covered by the Rental and Lending Rights Directive.
While the court’s decisions in the VOB vs Leenrecht case is not expected until late this year, Advocate General (AG) Maciej Szpunar delivered his opinion last Thursday. In its opinion AG Szpunar advises the CJEU to rule that art 1(1) of the Rental and Lending Rights Directive must be interpreted to include the right to lend electronic books included in a library’s own collection. While AG opinions generally offer a good indication of how the Court will decide, they have no direct effect and it is important to remember that the court can also come to a different conclusion than the AG. This of course is exactly the outcome that the VOB had hoped for and as such this AG opinion represents an important step in the fight of libraries to be allowed to adopt their activities to the digital environment. Continue reading
The European Commission’s public consultation on a neighbouring right for publishers and on the freedom of panorama closed on Wednesday. While the Commission has yet to publish the results of the consultation, Copyright 4 Creativity and Save the Link – who have both been providing tools that encouraged internet users to respond to the consultation – have published data on the responses that they have forwarded to the Commission.
The 2819 responses collected by Copyright 4 Creativity show a very clear picture. According to C4C, 96% of the respondents indicated that the introduction of new rights for publishers (either in the form of an ancillary copyright for press publishers or of a generic neighbouring right for all publishers) would have a strong negative impact on publishers, authors and other rightsholders, educators, researchers, online service providers and end users. This is a pretty resounding NO! to the misguided notion that the problems of the publishing sector can be solved by creating rights out of thin air.
Open Media, the organisation behind the Save the Link campaign, gathered more than 35.000 signatories (including 9937 from the EU) supporting the following statement:
a new ‘neighbouring right’ limited to [press] publishers and the creation of a new neighbouring right covering publishers in all sectors, will each have a strong negative impact on consumers, end-users, and EU citizens.
Now both C4C and Save the Link have both targeted internet users who are critical of an expansion of copyrights. It is therefore not really surprising that that these number show strong opposition to the introduction of new rights that provide publishers and other rights holders with more control over the internet. However, it is relatively hard to imagine that the other responses that the commission has received will change the overall picture of strong opposition to the idea of a neighbouring right for publishers.Continue reading
The parody exception cultivates the French tradition of satire. When the goal is to make people laugh, anybody can freely create a distinctively different mockery of a protected work. This encourages creativity and freedom of expression.
Within the Best Case Scenarios for Copyright series, we present France as the best example for parody. Below you can find the basic facts and for more evidence check the Best Case Scenario for Copyright – Parody in France legal study. EU, it’s time to #fixcopyright!
What is a parody exception?
- Rooted in ancient Greek, the term “parody” includes works of mockery, as well as quoting or referencing an older work in a modern interpretation of it. In France, parody implies adapting or borrowing from a work with the intention of having fun.
- The exception is justified by freedom of expression.
Freedom of panorama is a fundamental element of European cultural heritage and visual history. Rooted in freedom of expression, it allows painters, photographers, filmmakers, journalists and tourists alike to document public spaces, create masterpieces of art and memories of beautiful places, and freely share it with others.
Within the Best Case Scenarios for Copyright series we present Portugal as the best example for freedom of panorama. Below you can find the basic facts and for more evidence check the Best Case Scenario for Copyright – Freedom of Panorama in Portugal legal study. EU, it’s time to #fixcopyright!
Exception/Limitation: Freedom of Panorama
What is freedom of panorama?
- Derived from the German word Panoramafreiheit, freedom of panorama generally refers to the right to visually document works of architecture, sculptures, street art, or other copyrighted works, as long as they are permanently located in public spaces. In Portugal, the exception covers all sorts of documentation—not only photographs and video footage.
- The exception is justified by freedom of expression and public interest.
The copyright was originally meant to promote creativity and innovation, but instead it’s become outdated, overly complicated, and even threatening to some users. Fortunately there are still ways to fix copyright and the EU is in a unique position to do it. The European Commission should look into best examples of national-level solutions and apply them within the current reform. We present several best examples of exceptions and limitations that should benefit citizens in their access to culture and education across Europe.
Time to #fixcopyright and free the panorama across EU
EU, #fixcopyright and adopt the parody exception across Europe
Wide education exception is the best case scenario to #fixcopyright in EU
Reform – the dealmaker or the dealbreaker for citizens?
The current copyright system fails us on so many levels that we know the forthcoming EU copyright reform won’t fix it all. Given the pressure from creative industries to introduce new rights in order to protect their existing business models, the outlook is not very good. Instead of engaging in discussions and actions that would rebalance copyright, users and public interest organizations engage in battles against bad policy ideas.
It is time to tell the EU that while it plays with the elusive vision of the Digital Single Market by inventing how to tax linking, there are some good solutions that already work in member states. Exceptions and limitations to copyright, so dreaded by many rights holders, do not break the creative industry in Portugal and France or the educational systems of Estonia and Finland. They simply work! To the benefit of creators, artists, students and users, reinforcing creativity, freedom of expression and providing good balance of the interests of rights holders and citizens.
The current European Commission public consultation is about ancillary copyright as well as the ‘panorama exception’. We encourage you all to show support for a strong, mandatory freedom of panorama exception in Europe and to say “no” to ancillary copyright. COMMUNIA has already submitted their feedback, and you can let your voice be heard as well. Responses to the Commission’s survey must be received by June 15, and you can check out how to answer the questions with the guide at http://youcan.fixcopyright.eu/.
Why are these issues important for you?
As we’ve written before, ancillary copyright is good for no one. Everyday Internet users and consumers of news and articles would then have a harder time finding the news and information they were looking for, and would potentially face more constraints in quoting, linking to, aggregating, or otherwise using works protected by a new ancillary right for press publishers.
Even more worrying is adopting additional rights on top of a copyright system that is fundamentally broken. This is neither contributing to the Commission’s objective of modernizing the EU copyright framework nor adapting it to the challenges of a fast-evolving digital environment. Creating new rights (which are next to impossible to retract) is not a suitable method for managing the relationship between different market segments and the public. The ancillary copyright will cause substantial collateral damage to education and access to knowledge. Continue reading
Yesterday the Brussels-based think tank The Lisbon Council published the policy brief Text and Data Mining for Research and Innovation: What Europe Must Do Next. It was written by Sergey Filippov and Paul Hofheinz. In the paper, the authors analyse contemporary text and data mining (TDM) trends, and make recommendations for how European policymakers can better support researchers who wish to engage in TDM activities.
The authors observe that Europe has fallen behind other parts of the world in text and data mining research. One reason is due to the ambiguous legal environment in Europe surrounding TDM. In 2014 the United Kingdom adopted a copyright exception for text and data mining for non-commercial research purposes, but the situation for other countries in Europe is not so clear. The European Commission has not been entirely helpful, either. In their December 2015 communication on copyright, they said they would consider introducing an exception for TDM. However, instead of recommending a robust exception that would truly support text and data mining as an increasingly important research tool, the Commission suggested a narrow interpretation that would restrict TDM only to those affiliated with a “public interest research institution”, and only for “scientific research purposes.”
In their paper, Filippov and Hofheinz say that European researchers may be “hesitant to perform valuable analysis that may or may not be legal”, and that scholars “are forced, on occasion, to outsource their text-and-data-mining needs to researchers elsewhere in the world.” They recognize that some of the language in play—such as “public interest research organisation”, “scientific research purposes”, and “non-commercial”—could be open to misinterpretation, or even be at odds with the underlying public policy intention.
The European Commission’s public consultation on the role of publishers in the copyright value chain and on the ‘panorama exception’ wraps up on 15 June. COMMUNIA has submitted its response (PDF) to the questionnaire. Our answers reflect the role of COMMUNIA as a non-profit organisation that defends the public domain and advocates a copyright system that benefits users, creators, educators, researchers and cultural heritage institutions. Below we provide a summary of our responses to both parts of the consultation.
Ancillary copyright for publishers
It will come as no surprise that we oppose the creation of a new neighbouring right for publishers. Doing so would have a strong negative impact on all the audiences identified in the questionnaire, including publishers, authors, journalists, researchers, online service providers, and users.
For the majority of publishers, it would establish an unnecessary (and often unwanted) additional right that they would have to deal with, and could even make it harder for them to grow and develop innovative business models. And perhaps more to the point, the experiments with ancillary rights for press publishers in both Spain and Germany did not result in increased revenues. Instead, it likely decreased the visibility (and by extension, revenues) of their content—exactly the opposite of what was intended.