Commission’s proposal on education: the devil is in the detail

Painters’ academy,
Education deserves a better copyright reform
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Exceptions and limitations to copyright for education should support necessary access and re-use of copyrighted content of all types in a variety of education settings, locally and across borders. Copyright needs to be reshaped to be fit for modern education—which spans the lives of learners, and takes place in a variety of formal and informal settings, online as well as off. In this context, exceptions and limitations should promote positive learning outcomes, and the rights of copyright owners should be balanced with the public interest. We also need to reduce legal uncertainty faced by educators that use copyrighted content.

What is proposed in the directive?

In the Proposal for a Directive on Copyright in the Digital Single Market, the European Commission proposes to introduce a mandatory exception or limitation to copyright for educational purposes. The exception only covers the acts of reproduction, communication to the public, and making available to the public of protected works and other subject matter made in the context of a digital use. The digital uses have to be made for the sole purpose of illustration for teaching. Recital 16 clarifies that all digital uses that “support, enrich or complement the teaching, including the related learning activities” are covered.

The exception is intended solely for activities “carried out under the responsibility of educational establishments”. The uses allowed must (1) take place on the premises of the establishment or (2) through the establishment’s secure electronic network, accessible only by its teachers and learners. The concept of educational establishment is not defined, but Recital 15 states that “all educational establishments in primary, secondary, vocational and higher education to the extent they pursue their educational activity for a non-commercial purpose” are covered. The noncommercial nature of the activity is a condition of the use, however “[t]he organisational structure and the means of funding of an educational establishment are not the decisive factors” to assess that.

The three-step test laid down in the InfoSoc Directive applies to this new exception. Another rule from the InfoSoc that applies to the new exception is the one that requires Member States to take appropriate measures if the rightholders do not voluntarily make available to the beneficiaries the means to ensure that the use of technological measures do not prevent them from benefiting from the exception. Continue reading

As the European Parliament starts discussing copyright proposal, rightsholders point out they want even worse © rules

Johan de Witt 's nachts op straat aangevallen
Copyright reform: the right to link under attack
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Earlier this week the JURI committee of the EP held the first hearing on the proposed Copyright in the Digital Single Market directive. This hearing officially kicks off the process through which the European Parliament will develop its position on the Commission’s proposal. The parliamentary process is shepherded by MEP Therese Comodini Cachia (EPP, Malta). According to a preliminary timeline published by her, the process will be completed before next year’s summer break.

Wednesday’s hearing (recording) focussed on one of the most controversial issues of proposed Directive, the measures for filtering and blocking user uploaded content contained in article 13. These are supposed to address a so-called “value gap” caused by online platforms that allow users to share content online. The Commission has bought into the rightsholders narrative, although evidence why these measures are necessary is still lacking.

The wrong answer to online creativity: privatised censorship and filtering

As our friends at EDRi have pointed out in painstaking detail, such an obligation to monitor and filter is at odds with other EU laws and with jurisprudence from the Court of Justice of the EU, and would negatively impact the freedom of expression online. Continue reading

Communia at WIPO: copyright needs to empower teaching and learning

Effata Regum Poloniae usque ad Ioannem Casimirum [...]
Fixing copyright at WIPO
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The bi-annual meeting of the World Intellectual Property Organization (WIPO) Standing Committee on Copyright and Related Rights (SCCR) took place last week in Geneva. Teresa Nobre and Alek Tarkowski participated in the meeting on behalf of Communia, which has observer status. We were particularly interested in the debate on exceptions for education.

As Communia, we have until now focused our policy work on the European Union (albeit we were present at WIPO, as observers, briefly for debates on the public domain in 2012). We decided to start attending SCCR meetings in order to address the issue of good copyright for education also at global level. We hope that we can contribute to set out a global education exception.

In Geneva, we joined a broad coalition of civil society organizations and groups, and representatives of public interest institutions such as libraries or archives that have been participating in these meetings. Our particular focus is on education, an issue that until now has not been strongly represented by civil society observers at WIPO. We are hoping to change this situation. Delia Browne, who represented Creative Commons as a representative of Creative Commons Australia, joined us at the meeting.

The issue of exceptions and limitations to copyright has been on the WIPO agenda for years. In 2013, the Marrakesh Treaty was signed, requiring all WIPO members to provide a domestic copyright exception that allows the creation of accessible versions of books and other copyrighted works for visually impaired persons. The exception secured by the treaty is an important win, and a clear evidence that a global copyright standard that supports public interest can be established through the WIPO process.Continue reading

CJEU ruling in Doke & Soulier case emphasizes the need for a real solution to the out-of-commerce problem

Strafpleiters
Universal access to out of commerce works now!
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Last week the CJEU handed down another judgement dealing with digital activities of libraries (see our take on the e-lending decision from 2 weeks ago here). In its judgement in the Doke & Soulier case (C 301/15) the court ruled that the French law on out-of-print books, which allows French publishers to publish digital editions of out-of-print books, violates the exclusive rights of authors as established by the InfoSoc directive. This means that the French scheme for making out-of-print books available (reLire) will either need to be modified or scrapped.

The judgement does not come entirely unexpected as it is largely in line with the Advocate General opinion from earlier this year. As we have already noted in our analysis of the AG opinion, the case has the potential to undermine Extended Collective Licensing (ECL), which is currently held as the solution for the issue of out-of-commerce works.

At this point it is unclear how the Doke & Soulier judgement relates to the EU Commission’s proposal for dealing with out-of-commerce works in the collections of cultural heritage institutions—currently a part of the proposal for a Copyright in the Digital Single Market directive. Regardless, the judgement  casts a shadow of doubt over ECL arrangements such as the one at the center of the Commission’s proposal. This is mainly due to the fact that through this decision the court has established stringent criteria that national measures would need to fulfil. The fact that according to the court “every author must actually be informed of the future use of his work by a third party and the means at his disposal to prohibit it if he so wishes” (para 38) seems to contradict the very purpose of Extended Collective Licensing arrangements, which is to circumvent the need to clear rights on a per-work (or per-rightsholder) basis.

Can ECL still provide a solution for out-of-commerce works?

Looking at the reasoning of the court, it becomes evident that the judgement is not so much concerned with the operation of of ECL as a legal mechanism, but rather with the question of whether EU member states can limit the ability of authors to exercise their exclusive rights in ways other than those foreseen by the EU legislator. The court answers this with a resounding “no” and then goes on to examine whether the French system respects the ability of authors to object to the use of their out-of-print works. The court comes to the conclusion that it does not, because authors are neither individually informed about future uses of their works, and because their ability to opt out of such uses is limited. In summary, the court does not declare ECL in general incompatible with the InfoSoc directive, but has ruled, that the French ECL implementation does not sufficiently respect the authors’ exclusive rights. Continue reading

Activists push for positive copyright changes at Mozfest

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We need everyone on board
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In Communia Association we are well aware of challenges which copyright reform brought for the whole movement of activists actively engaged in copyright debate. Currently we’re facing the Commission’s proposal that restricts access to information, internet freedoms and threaten digital economy. Moreover, the voice of civil society is not heard in Brussels. Therefore we also believe that one of the biggest challenges for the movement is to motivate everyone, who cares about sharing and creativity. Therefore we took part in Mozfest, the event connecting a global group of people working toward an open, innovative, and censorship-free web.

The most important for us was the opportunity to meet advocates interested in a variety of different areas, including open education, Wikimedians, and those dealing with network neutrality and online censorship. They all have reasons to be interested in the direction of the development of copyright law in Europe, and we did our best to get them them on board with copyright reform actions.

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CJEU on e-lending: The right to lend books includes the right to lend electronic books.

Keizerlijke bibliotheek en rariteitenkabinet
The right to lend is the right to lend!
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Yesterday the Court of Justice of the European Union delivered good news in a case that that eagerly watched by Librarians across the Europeana Union. In its judgement in the case VOB vs Stichting Leenrecht (C-174/15 – press release here) the court ruled that rental right and lending right directive also covers e-lending. This is good news for libraries and their users as this means that (within certain limits) libraries can lend out e-books on the same legal basis as they lend out paper books. Prior to this judgement it was generally assumed that e-lending was not included in the scope of the rental right and lending right directive and as a result public libraries wishing to lend out e-books had to conclude licenses with publishers in order to do so.

Yesterday’s judgement came out of a reference to the CJEU in the context of proceedings brought by the Association of Dutch Public Libraries (VOB) which held the view that libraries are entitled to lend e-books included in their collections according to the principle “one copy one user”. This view was not shared by the Dutch government which has passed legislation based on the premises that the digital lending of electronic books does not come within the scope of the exception provided by the rental right and lending right directive.

The VOB wants libraries to allow users to download an electronic copy of a work included in the collection of a library while ensuring that  – as long as that user can access that copy – it is not possible for other library users to download another copy. At the end of the e-lending period, the copy downloaded by the first user would become inaccessible, and as a result another lender can download a separate copy. Continue reading

EU Copyright Reform: 3 Things To Remember

Policy lunch
Together we are strong
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The proposal to reform copyright, presented in September, showed that the European Commission does not intend to keep up with the times and create regulations that would support the development of the information society and the Digital Single Market. Unfortunately, it also showed that the voice of civil society is not heard in Brussels.  Even when we provide detailed feedback and recommendations,  our views  are not taken into account.

During CopyCamp 2016 we organized a meeting with representatives of NGOs from Poland and other countries, aiming to talk about how to effectively promote the rights of users in the discussion on EU copyright reform.

We were curious whether the participants of our lunch also believed that existing methods of communicating our positions were not effective enough. And if so, what would we do to make politicians realize that the copyright reform needs to look beyond securing the profits of traditional business models and focus on changes that will support the new digital economy, while at the same time protecting users’ rights.

policy-lunch-copy-camp

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The Copyright Reform – a Guide for the Perplexed

Bible Reading
Copyright so complicated
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The debate whether the copyright reform in a proposed shape would be beneficial for Europe or not is now a key topic for digital rights organizations. But what do measures suggested by the European Commission actually mean? COMMUNIA and EDRi have jointly developed a Copyright reform guideline to the “legalese” of the draft directive. We present key issues and solutions that should be taken into consideration by the Members of the European Parliament (MEPs) who will soon discuss the proposal.

We believe that the current reform is a chance to empower users across Europe to access culture in ways that have been proved not to undermine authors’ revenues. This would boost the creation of new business models that will support authors, creators and journalists, and not only powerful intermediaries such as book publishers and record companies.

The copyright reform should also safeguard freedom of expression and privacy by curbing the surveillance capacity of filtering technologies. The Commission’s proposal fails to take advantage of these opportunities to secure a better future for Europe and European culture.

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‘School of Rock(ing) Copyright’ at the CC Europe meeting

School of Rock(ing) Copyright
Mobilising Copyright Reform Advocates
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This post was written by Natalia Mileszyk and Lisette Kalshoven, and also posted on the Creative Commons blog.

Last week at the Creative Commons Europe Meeting in Lisbon, COMMUNIA organised a “School of Rock(ing) Copyright” workshop. Creative Commons affiliates from Poland, the Netherlands, and Portugal joined efforts in sharing knowledge about the current European copyright reform. We examined the political process for updating the copyright rules, and asked for help from other CC Europe affiliates in advocating for positive copyright changes. We were pleased to have around 15 participants from as many EU countries attend the session. Since we’re at a crucial stage within the European legislative process, we were eager to discuss the ins and outs on how we can create a better copyright for Europe.

Why does the CC community care about copyright reform? We all stand for creativity, innovation, access to knowledge, and development. Copyright can both boost or limit these goals, so we are actively involved to make progressive changes to copyright to benefit users, education, and the commons.

What we presented at the workshop

At the ‘school’ we focused on four different areas that people need to know about when engaging in advocacy for copyright reform in Europe. First, we provided a quick overview on ‘Brussels’ and how the different institutions such as the European Commission and Parliament interact. Second, we explained how the legislative process works. The Commission proposal is out, but it’s far from the end of the process! Third, we shared tactics and tips for getting involved in advocacy activities. These often seem obvious, but are very important when interacting with politicians. For example: never ask for anything people can’t give you, and come to the table with clear, concise suggestions. Few politicians have the time to read a 200 page research report, no matter how riveting we think it is! The fourth and last part of our workshop dug into a few key topics within the current copyright reform proposal, including areas such as cultural heritage, education, and research. Continue reading

Peculiar policymaking: a post-mortem on the Commission’s overdue report on copyright consultations

Lost in the EU copyright labyrinth
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Last week the European Commission released its bombshell Directive on Copyright in the Digital Single Market. And while analyzing this proposal has occupied most of our time, there were several other documents released simultaneously by the Commission that also deserve the public’s attention. Of particular interest was the long-awaited report on the results of the public consultation on 1) the panorama exception, and 2) the role of publishers in the copyright value chain (aka ancillary copyright proposal).

We’ll explore these in more detail below, but first a word on process. The public consultation on freedom of panorama and ancillary copyright ended on 15 June. We think that the public input should have been analyzed by the Commission and released to the public long before any public release of a Directive in which those topics are discussed. Doing so would have demonstrated reasonable and responsible policy-making on behalf of the Commission. But by releasing the summaries of these consultations at the same time as the Directive—when it was far too late for the public to understand the Commission’s thinking, let alone advocate for other changes—only reinforces the EC’s disingenuousness in having a public consultation in the first place.Continue reading