On the need to protect copyright exceptions from contractual interference

One of the positive points contained in the recently adopted Reda report that we have not discussed here before is the freedom to exercise copyright exception and limitations. In paragraph 61 of the report the members of the European Parliament stress that “the effective exercise of exceptions or limitations, and access to content that is not subject to copyright or related rights protection, should not be waived by contract or contractual terms”.

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Such an approach is new to current legislation. The 2001 Infosoc Directive introduced 21 exceptions and limitations to copyright, making only one of them mandatory (transient or incidental acts of reproduction), and leaving the remaining 20 optional for national legislators to implement.

This has led to cherry-picking by countries in their implementation of the optional exceptions and limitations, and it has created a situation where users in different EU member states have different rights when it comes to their interaction with copyright-protected materials. Even worse is the fact that the existing legislation does not contain rules that protect users from a contractual or technological override of the exceptions and limitations available within current EU system. As a result, rightsholders and intermediaries are essentially able to limit or modify exceptions or limitations, thus reducing the potential benefit of the copyright exceptions for the public. Continue reading

The Rhetoric of Copyright Extremism

In the end, nothing happened. When the European parliament adopted a compromise version of MEP Julia Reda’s evaluation report of the EU copyright directive, the attempt of MEP Jean-Marie Cavada to restrict the right to publish pictures of buildings and artworks permanently installed in public places (“freedom of panorama”) was voted down by a huge margin. The majority that had supported the Cavada amendment in the legal affairs committee vanished under a storm of protest, spearheaded by Wikipedians fighting for their right to include pictures of buildings and artworks in their free encyclopedia.

However, while the final version of the report did not suggest restricting freedom of panorama, it did not include a specific provision to protect it, either. Instead, member countries would still be free in whether and how to implement such a limitation into their respective national copyright laws. In a way, this outcome is a typical example of the widespread copyright extremism in Europe, which blocks even the most sensible and moderate copyright reform proposals.

The overall spectrum of opinions in current copyright debates ranges from abolitionism, that is, proposals to discard copyright altogether, to copyright extremism on the other side. Copyright abolitionism is a position sparsely mentioned in regulatory conversations. While authors Joost Smiers and Marieke van Schindel, for instance, have managed to create some buzz around their book “No Copyright”, the attention was only short-lived and the discussion left no real lasting mark on the conversation overall. And abolitionist positions brought forward by libertarian researchers such as Michele Boldrin, David K. Levine and their colleagues have only played a very marginal role in scientific discourse, as well.

However, we observe that rhetoric around ratcheting up extreme copyright protections plays a major role in the mainstream of regulatory conversations around copyright, while rarely recognized and called out as extremism. Rather, even the most far reaching positions are considered perfectly legitimate when brought forward in committee hearings, policy papers or campaigns. In a way, current copyright discourse is heavily skewed towards the side of copyright extremism, which makes any moderate and balanced reform of copyright laws difficult, if not impossible. Taking a closer look at the relentless rhetoric of copyright extremism might therefore help to identify and address this problem. Continue reading

Alternative Compensation Systems only work if adopted by all sides

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This post was written by Lisette Kalshoven and Katarzyna Rybicka.

Fifteen years ago, the explosive growth of the file sharing network Napster changed the music industry forever. It was a simple response to the difficulty of finding, downloading and sharing music over the web. Since then, policy makers and stakeholders have been trying to resolve the ongoing challenge of unauthorised copying, without much success. In many instances copyright enforcement turns out to be either ineffective, or is applied in such a way that violates fundamental rights such as the right to information, freedom of expression or privacy and protection of personal data.

Last Saturday in Amsterdam, the renowned institute for research on intellectual property rights, IViR (Institute for Information Law) held a symposium on Alternative Compensation Systems (ACS) for cultural goods. An ACS can be described as a legal mechanism which permits the reproduction, downloading, sharing and sometimes even modification of copyrighted works. This can be done without the need for an opt in from users (mandatory ACS) or with an opt in (voluntary ACS), but with both options giving compensation to the creators and copyright owners of those works.

The IViR researched the non-commercial use of cultural goods online for two years. The results suggest that consumers are dissatisfied with the existing legal access channels. As a consequence, different forms of ACS were supported by the majority of the Dutch population questioned.

One of the interesting results of the study was that if implemented, a monthly compensation system fee of only ca. €1.74–collected via a surcharge on existing Dutch Internet subscriptions–would raise the same amount of revenues for rights holders as the current market for recorded music, which is ca. €144 million per year. In addition, the researchers examined the amount the respondents said they would be willing to pay for participating in a compensation system covering recorded music, which is €9.25 per month for a mandatory ACS.

If this holds true, it means that a well-designed ACS for recorded music would mean bigger revenue in the recording industry (and thus more income for creators) while still within the acceptable range that consumers would be willing to pay. Interestingly, the biggest (voluntary) subscription-based music service now, Spotify, has a monthly subscription fee of €9.99, slightly higher than what users said they’d be willing to pay when asked by the IViR researchers.

“It shimmers, it’s yellow, it might be even gold,” said Dr. Christian Handke, the co-author of the report, during his presentation at the conference. But the economic panel raised important questions, such as who should be responsible for the distribution of revenues, who should bear the operating and enforcement costs, and how would a mandatory ACS be implemented without inhibiting innovation in the music industry. These are still questions without clear answers. In short, the results are promising, but it seems we are far from implementing a mandatory ACS.

The panel on user involvement in copyright policy had intriguing panelists, including MEP Julia Reda, Agustín Reyna from BEUC and Jim Killock from Open Rights Group. They discussed, among other things, how an ACS could be adopted within European policy.

There were two important take-aways from the panel on the adoption of a mandatory ACS. First, it needs to be tested on a smaller scale before it can be implemented at the national (or Europe-wide) level. IViR realises this and is designing an experiment in The Netherlands with relevant stakeholders.

Second, Reda pointed out that such a system would never come into being if rights holders and consumers are not on the same page. Past experience has shown that consumers and citizens are more likely to get involved with copyright policy if they sense a potential negative change in how they’re able to interact with copyrighted materials, as opposed to lending their voices for a positive campaign without an immediate observable threat. The recent media attention for the freedom of panorama in the EU illustrates her point. This is a challenge, and one that we should try to overcome. We need to get citizens more involved in copyright reform in a way that makes it better suited for the digital age. We welcome discussion on how to overcome this challenge.

European Parliament adopts Reda report, fails to demand real copyright reform

Yesterday the European Parliament approved MEP Julia Reda’s evaluation report of the copyright directive. With the report the European Parliament gives a clear signal that the European Copyright rules need to be modernised. This puts the ball in the court of the Commission, which needs to come up with concrete legislative proposals for a copyright reform – which it promised to deliver before the end of the year. Both Commissioners Oettinger and Ansip have reacted positively to the Report, while its author, Pirate Party MEP has expressed the hope that the Commission’s proposal will be more ambitious than the EPs report, which has been watered down considerably through a large number of amendments.

So while the report is a clear signal that MEPs want to see a modernisation of the EU copyright rules that date back to 2001, it is much less clear what shape these modernised rules should take. Most of the report is based on compromises that MEP Reda has brokered between all major political groups represented in the EP. As a result, the report does not outline a clear plan for reforming copyright. Still, it is possible to distill from it a number of things that MEPs clearly both want and don’t want to see in the reform proposal. It is also clear that pressure from civil society – related to such issues as Freedom of of Panorama, hyperlinking or ancillary copyright, helped avert worst amendments to the report.

MEPs do not want to see further limitations of user rights.

Attempts have  been made to include language that would limit the rights of end users. Fortunately all of these attempts failed. The majority of MEPs is clearly unwilling to further limit the ability of citizens and other users to interact with copyright protected material. Continue reading

European Parliament must not open the door to ancillary copyright for press publishers

Tomorrow the European Parliament will vote on the Reda report on the implementation of the 2001 copyright directive, which has been approved by the legal affairs committee on the 16th of June. One of the most contentious issues during the vote in the legal affairs committee was an amendment by proposed by the German EPP MEP Angelika Niebler that would have encouraged the Commission to introduce an new ancillary copyright for press publishers on the EU level.

In a last minute departure from the already agreed on compromises, both EPP and ALDE insisted that this amendment should be voted on separately, clearly hoping that this manoeuvre would somehow succeed in getting the desired language into the text of the report. Unfortunately for the proponents of the ancillary copyright, this move backfired and the legal affairs committee voted the amendment down with a relatively clear majority.

Quality journalism or ancillary copyright?

A couple of days ago it emerged that the proponents of the ancillary copyright for press publishers have mounted another last minute attempt, this time attempting to insert language calling for the introduction of an EU-wide ancillary copyright for press publishers into the report via another amendment tabled by MEP Niebler. This amendment will be voted on during the plenary vote on Thursday. The amendment proposes to add a new paragraph (57a) to the report:

Calls on the Commission to evaluate and come forward with a proposal on how quality journalism can be preserved also in the digital age in order to guarantee media pluralism, in particular taking into account the important role journalists, authors and media providers such as press publishers play with regard thereto.

While the text of the amendment does not explicitly talk about an ancillary copyright for press publishers, it is clear that this language is intended to give the Commission an excuse to come forward with a proposal that would introduce such a right. Continue reading

Simple is beautiful. Copyright exceptions for education

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Being a teacher in 2015 is both easier and more difficult than it was 30 years ago. It can be more difficult as there is pressure to follow new trends in online and digital technologies, the Internet of things, social media, and a push to adopt a more interactive approach to teaching. But there are new tools and and practices to ease these new expectations. Almost any educational materials that teachers wish to use are now at their fingertips. No longer do educators need to spend their lives searching through physical libraries or collecting stacks of CDs or DVDs for viewing in their classes. Today, much of this content is available online with a simple click. But therein lies another difficulty. Copyright. Even though almost anything is now available to view, not everything can be legally used. Or–perhaps even worse–it is not clear whether a teacher or student can use it, or under what circumstances.

EXCEPTION?

What teachers legally can and cannot use is defined by educational exceptions and limitations within national copyright laws. Set out by the EU InfoSoc Directive, exceptions and limitations are not a mandatory rule within EU member states, which means member states can choose to adopt the exception or not, and within reason interpret the exception to conform to their own ideas. Since the early 2000s, the InfoSoc Directive rule of “use for the sole purpose of illustration for teaching or scientific research” has been implemented in various different ways. Some countries literally translated the provision into their legal system, while others allowed some creativity in its implementation. But to be sure, 28 member states means 28 different legal regimes. This raises several questions. What is the reason why in 2015 teachers in Poland enjoy a different set of rights than teachers living in Slovenia, Finland or Portugal? Continue reading

BEUC highlights consumer confusion in everyday uses of copyrighted material

BEUC, The European Consumer Organisation, has released an interesting fact sheet pertaining to confusion and uncertainty in consumer use of copyrighted materials. BEUC surveyed relevant stakeholders about the current copyright reform debates in the EU. These stakeholders ranged from collecting societies to academics and government ministries, and the conclusions drawn from their answers are both predictable and problematic: it seems no one can agree on the legality of using copyrighted content.

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BEUC took simple and everyday examples on how consumers interact with copyrighted material (for example, making private copies of DVDs, selling an ebook online, or using a VPN to access your Netflix account while on holiday) and asked the stakeholder whether they believed the act was legal or not. Continue reading

Reda report: the good, the not-so-bad and the ugly compromise amendments

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Back in April we published our list of the 10 worst and the 5 best amendments to Julia Reda’s draft report on the implementation of the InfoSoc Directive. Tomorrow the Legal Affairs committee (JURI) of the European Parliament will vote on these amendments to the draft report. In light of the upcoming vote and given that Julia Reda has just published the final voting list – including the compromise amendments – it is time for one last round of analysis.

As the name implies, compromise amendments are amendments the different political groups have agreed on as replacements of sets of (often contradictory) amendments related to a specific section of the draft report. Given that they reflect a partial consensus among some of the political groups, they are relatively likely to be adopted. If a compromise amendment (AMC) is adopted, the individual amendments that they replace are automatically rejected. If a CAM is rejected then all original amendments will be voted on individually.

In the following we are taking a quick look at the compromise amendments that deal with the issues we’ve previously highlighted. If you haven’t done so already, you may want to read our initial analysis first.

The Good

Three of our five best amendments have found their way into compromise amendments: AM 264 – which clarifies that what is in the public domain must stay in the public domain (in line with our policy recommendation #5 and with the Europeana Public Domain Charter) – has been subsumed into AMC 6, making it much more likely to be adopted. Having this compromise amendment adopted would be a significant win for the public domain. Continue reading

More licenses are not the solution for text and data mining

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Earlier this week  LIBER released a response to the STM Association’s statement about text and data mining (TDM). The STM Association asserts that legal certainty already exists for TDM via publishers’ licences, and that creating copyright exceptions for text and data mining activities would undermine the investment incentives for ensuring that high-quality content is available.

LIBER refutes these claims. First, they say that publishers’ licenses for TDM are not straightforward or easy to understand.

Licences could never be described as simple; they are highly complex and can take months or even years to complete. They often refer to laws in other jurisdictions and in most European countries they can override the flexibilities that exceptions are intended to provide. Many licences explicitly forbid TDM associated activities such as crawling of content and the depositing of data in institutional repositories.

Second, LIBER argues that forcing researchers to acquire licenses to engage in text and data mining will divert investment money away from conducting important research, and instead will be used to pay for license compliance and monitoring activities. Instead, they say that a copyright exception for TDM would actually promote investment, not inhibit it.

An exception for TDM can act as an investment incentive. By implementing the exception for TMD proposed by the Hargreaves review of UK copyright frameworks, the UK government has made a clear statement that legal clarity around activities such as TDM will spur innovation and growth. In the wake of the implementation of this exception tools to support TDM and improve the quality of content have already begun to emerge. Researchers in the UK have developed their own openly available tools for conversion of text files into structured standardised formats.

COMMUNIA strongly supports the notion that “the right to read is the right to mine.” We encouraged the development of clear rules for researchers who must be able to read and analyse all information that is available to them through text and data mining. We are an original signatory to the Hague Declaration on Knowledge Discovery in the Digital Age. And we criticized the development of bespoke licenses, which would create confusion and claim to grant permission to do many things that re-users do not need permission to do.

Copywrong website launched: help fix copyright

Today a new website was launched in the amp up to the vote on the Report on the Implementation of the InfoSoc Directive and its amendments on June 16 in the European Parliament’s legal affairs (JURI) Committee. The website aims to mobilise internet users to help save copyright reform at European level, in face of what is described as sabotage. It features a short film that explains in common language why copyright reform needed to make it functional in modern society:

The website, copywrongs.eu, also lists some of the most important amendements that need extra support during the vote. There is much to like on this list, including some reforms that are among our priorities: safeguarding the public domain, harmonising exceptions across Europe or providing a strong educational exception (which does not exist today). The list also includes ending geoblocking and speaks in favor of the right to quote to include video’s and sound recordings.

For more information on what is at stake in the vote, read our blogpost on the 10 worst and 5 best amendements on the Report.

The website was created by Pirate Party MEP Julia Reda (who wrote the Report) together with copy-me.org, a platform that shares information on culture and the information society. The site is available on GitHub for forking.