Diego Gómez is a Colombian student who for the last three years has been prosecuted for sharing an academic paper online. He faces criminal charges – up to eight years in prison. Diego’s story is a symbol of a broken copyright system that becomes a barrier to research and education. And at times simply hurts people.
Last month, Diego was cleared of charges by the Bogotá Circuit Criminal Court. Yet only three weeks later the author of the paper, who in 2013 informed authorities and pressed charges, appealed the decision. The case, which has been ongoing for 4 years, will therefore continue in the appellate court. And Diego can still go to jail for sharing knowledge.
Diego is being supported by Fundación Karisma, the Colombian digital rights organisation. Karisma has launched an Indiegogo fundraising campaign to pay for legal expenses. As Communia, we are supporting the campaign and helping raise $40,000 for this case. Please consider joining theCompartir no es delito: Sharing Is Not A Crime campaign. It is time to end an unfair case that has been a burden for Diego for the last four years.Continue reading →
The copyright reform remains an exceptional opportunity to close the discrepancies between present-day practices and outdated law. One of the pressing issues is solving the legal uncertainty for users and creators online. Creating online is part of our digital culture and whether it is allowed or not, occurs everyday. There continues to be a lack of legal clarity on how to deal with user-generated content made for non-commercial purposes ranging from funny memes to elaborate works that critique and reflect on the society we live in.
The European Commission’s proposal for the Copyright Directive lacks a user-generated content exception. This is worrisome, because it does introduce an article that could possibly lead to filtering content generated by users even though much of that content does not harm rightsholders. The recent IMCO vote where an exception for user-generated content (UGC) was adopted is a positive step forward in getting a UGC exception in the final Copyright Directive. However, we can’t let our guard down yet. JURI, the most important committee, will vote on its amendments later this year and it yet has to prove it will follow the precedence set by IMCO.
Even though this is encouraging, there is a specific reason for concern. One of the proposed amendments for the JURE committee concerning a UGC exception stands out, because it negates the positive effects of a possible UGC exception. Yes, you read that right. It’s done in a clever, but harmful way. Continue reading →
As reported last week, the voting of the Internal Market Committee on the Draft Opinion on the proposed DSM Directive was full of plot twists, but none related to the issue of education. The Committee adopted its compromise amendment to article 4 and it was applauded by many, since this amendment offers a better solution to the obstacles faced by educators and learners across Europe than the Commission’s proposal. Yet, the educational exception resulting from this compromise is still not suitable to the modern needs of educators and learners across Europe.
Giving preference to new licenses is always a bad idea
The IMCO amended article 4(2) in order to give precedence only to extended collective licensing (ECL) schemes. This shows appreciation of the weak position of educational institutions to negotiate individual licenses, and thus represents a progress in relation to the Commission’s proposal. However, it’s not enough to guarantee that the new exception will not simply be replaced by ECL schemes all over Europe.
The ECL schemes have been in existence in the Nordic countries for a long time now, and there’s a general understanding that they have to be protected in those countries. We cannot overemphasize the fact that the term “limitation” in article 4(1) encompasses compulsory or statutory licenses. On the other hand, works of authors that opt out from voluntary licenses will fall under the exception anyway. In other words, maintaining article 4(2) is not that relevant.
What policy makers that want to protect the public interest related to education should worry about is that ECL may be exported to countries with no tradition whatsoever of implementing such schemes. These are also countries which currently do not foresee any compensation for most or all of the uses made under their educational exceptions. They might be forced to introduced compensation, based on the proposed law.Continue reading →
Politics is full of plot twists and we have witnessed that today during the IMCO Committee vote on its opinion regarding the copyright directive proposal. The new rights for publishers that seemed to be red line for so many Parliamentarians have made their comeback. The upload filtering provisions have been removed—despite some MEPs’ efforts to make them even stronger. If the reform package was actually a coherent vision instead of a wish list of shortsighted interventions, we could be celebrating an entirely different vote.
The upload filter is gone, the e-commerce Directive is intact
In a surprising move, the Committee adopted the EPP proposal to include Article 13 as drafted by LIBE rapporteur Michal Boni into IMCO’s opinion. IMCO rapporteur Catherine Stihler supported these amendments over the compromise she had made with other Parliamentary groups: S&D, ECR, ALDE, GREENS and GUE. Since it was quite clear that the deletion suggested by some Committee Members is not an option for this article, it is seems like one of the best possible outcomes that MEP Boni’s proposal has been picked up by IMCO.
Rapporteur Boni’s take on how platforms should cooperate with rightholders offers a rational distinction between entities falling under the scope of Article 13 and those protected by the e-commerce directive exemptions. It also steers clear of content recognition and technological measures as the go-to solutions for shaping that cooperation regarding MEP Stihler’s compromise amendment.
Red line? What red line?
The big surprise of the IMCO vote is the U-turn it took on the issue of new rights for press publishers (a.k.a “the link tax”). Rapporteur Stihler proposal to delete all of Article 11 had gained some traction in the Committee, which resulted in about a dozen other IMCO Parliamentarians also tabling provisions to remove it. In the vote, however, the amendments to delete were almost entirely rejected. The Commission’s version of Article 11 has been adopted with some tweaks: hyperlinking would not fall under the new right, and the new law would not be applied retroactively.
Now that the EU Parliament committees have introduced their amendments to the Commission’s Directive on Copyright in the Digital Single Market, it’s useful to take a look back at the evolving nature of various aspects of the reform. This week we’ll review the copyright exception for text and data mining. Text and data mining (TDM) enables mechanical analysis of huge amounts of text or data, and has the potential to unlock interesting connections between textual and other types of content. Understanding these new connections can enable new research capabilities that result in novel technological discoveries, critical scientific breakthroughs, journalistic endeavors, and new business analytics opportunities.
The Commission first asked about text and data mining in its 2013 public consultation on the review of the EU copyright rules, and Communia responded to the call for feedback. We argued that text and data mining should be considered as an extension of the right to read—that mining texts and data for facts is an activity that is not and should not be protected by copyright. We noted that TDM should not be addressed through contractual-, license-, or fee-based approaches, and urged that technical protections measures should not prevent users from engaging in text and data mining activities. We argued for legal clarity in our 2015 policy paper on the the review of the EU copyright law: “the development of clear rules for researchers who must be able to read and analyse all information that is available to them, whether through text and data mining or otherwise.”
The Commission’s Crippled Proposal
In September 2016 the European Commission released its copyright reform directive. For the most part it lacked a progressive vision, adequate protections for the public interest, and workable solutions to promote the European digital single market. This characterization is equally applicable to how the Commission handled text and data mining. In our response to the directive, we noted that it’s good that the Commission recognized that researchers encounter legal uncertainty about whether—and how—they may engage in text and data mining, and are concerned that publishers’ contractual agreements may exclude TDM activities. So, in this respect it’s positive that the Commission introduced a mandatory exception to copyright for text and data mining that would forbid contractual restrictions or terms of service from interfering with the right to exercise the exception.
The first set of “compromise” amendments deals with article 11 and the associated recitals and represents an unprecedented land grab on behalf of press publishers. As part of this “compromise” proposal MEP Arimont wants to extend the term of protection for the new publishers right from 20 years (as proposed by the Commission) to 50 years. In addition he proposes to extend the right to include academic publications (which were explicitly excluded from the commission’s proposal) and also applies it to analogue uses.
This massive extension of the publisher’s rights will still be very unlikely to generate new income streams for publishers, not to mention delivering on the promise to ensure journalists get an “appropriate share of the remuneration”. Instead, it will cause substantial collateral damage. Libraries and other cultural heritage institutions will suddenly see themselves confronted with a new class of rightsholders who can make claims for publications that have been published many decades ago. As a result libraries will likely need to take archival collections off line and spend additional resources on clearing rights.
The EPP proposals will also introduce massive uncertainties for anyone linking to press publications online. According to the proposed language any hyperlink that contains “the key information which was to be conveyed” would be infringing. The proposed standard is as ridiculous as it is impractical. Unfortunately this does not seem to register with the EPP MEPs responsible for these “compromises” who are clearly willing to throw everyone else under the bus in their attempts to grant press publishers new exclusive rights. Continue reading →
Yesterday we sent an open letter on copyright reform to the EU Member State ministers attending the Competitiveness Council. We have done so together with more than 60 other civil society and trade associations – representing publishers, libraries, scientific and research institutions, consumers, digital rights groups, start-ups, technology businesses, educational institutions and creator representatives.
The letter reflects our growing concern over the fact that the EU is wasting the long overdue opportunity to reform its outdated copyright framework. And that we are missing a chance to make it fit for purpose in the digital environment. At the root of the problem is the Commission’s backward looking proposal for a copyright in the digital single market directive that was presented in September of last year.
More than half a year later we see the discussion on the reform proposal caught up within the narrow vision that the Commission has presented. While the European Parliament is so far moving in the direction of fixing the biggest flaws of the Commission’s proposal and seems to be willing to introduce some additional positive elements, the Member States are moving in the opposite direction. There is a lot of concern that Member States are attempting to hollow out the positive aspects of the proposal while doubling down on the measures designed to protect the business interests of legacy intermediaries (such as publishers and record companies).
Given this we have joined forces with a diverse group of stakeholders to ask the Member States (and other EU lawmakers) to oppose the most damaging aspects of the proposal and to embrace a more ambitious agenda for positive reform. In particular the open letter is highlighting three key messages: Continue reading →
The very good news is that Rapporteur Boni proposes to remove content recognition and all references to the use of technology as a default option from the directive. MEP Boni also explicitly says in his report that the implementation of the agreements should not impose any general monitoring obligations.
Here the report builds nicely on theapproach paved by the JURI’s rapporteur MEP Comodini in her report. The removal of references to technology opens the path to looking for a variety of solutions in negotiating the division of revenues between service providers and rightholders. No doubt that technologies will be employed to verify if content is uploaded legally. But the EU copyright legislation should not require a direct connection between the business discussion on who the revenue should go to and the surveillance of users uploading stuff on a platform. Continue reading →
A particularly interesting discussion has been unfolding over the past month in the Romanian Parliament, where on the 15th of March the IT&C Committee of the Chamber of Deputies organized a debate on the proposed directive, in order to collect the views of different stakeholders. After the event, the IT&C Committee produced an opinion addressed to the European Affairs Committee of the Chamber of Deputies, which is the group responsible for drafting the final report of the Parliament on the package proposal. The members of the IT&C Committee unanimously voted against the European Commission’s proposal and advised to withdraw it in its entirety.
While this is not a heavyweight vote and as such not likely to be taken over as the Romanian Government’s position, it represents the first entirely negative advice issued by national policy makers in a Member State. It is therefore interesting to take a closer look at the arguments for rejection. Continue reading →
Most of Europe’s Museums, Libraries and Archives digitize Public Domain works in their collection in order to make them available without any restrictions (in line with our Public Domain Manifesto and Europeana’s Public Domain Charter). However, a minority of institutions uses loopholes in copyright legislation to claim exclusive rights over digital reproductions of works for which copyright protection has expired.
The legal basis for such claims is often found in copyright rules that also afford some form of protection to non-original photographs. These are photographic reproductions that qualify for copyright protection because they do not constitute the “own intellectual creation” of the author. Such loopholes exist in 7 EU member states and the proposed DSM directive would have been an opportunity to close them. Continue reading →