For several months now, we have been arguing that ‘the devil is in the detail’ when it comes to the Commission’s education proposal. MEP Therese Comodini Cachia draft amendments to the proposed exception for digital and cross-border teaching activities, while introducing some improvements, do not meet the educational community expectations to see a better copyright reform. And, worst still, they represent a serious step back in relation to the existing EU acquis in the area of educational exceptions.
The licensing fight continues
We appreciate MEP Comodini efforts to mitigate the negative impact of article 4(2), which allows Member States to give precedence to licenses over the proposed exception. However, we believe she misses the opportunity of getting rid of the Commission’s infamous proposal, while still protecting the extended collective licensing (ECL) schemes that exist in the Nordic countries.
Under the Commission’s proposal, any licensing offer could rule out the application of the education exception, thus negating much of the substance and effectiveness of the exception. MEP Comodini seems to recognize that many educational institutions would be ill-placed to negotiate license terms or would be forced to accept the terms dictated by the licensor, and thus introduced some substantial changes to article 4(2). Under Ms. Comodini’s proposal, the unilateral and discretionary offer of the rightholder to conclude a licensing agreement is not sufficient to deny the educational establishment concerned the right to benefit from the educational exception. An existing contractual relation is needed to override the exception.Continue reading
Now that most of the committees have published their draft opinions on the Commission’s Directive on Copyright in the Digital Single Market, it’s time to hear their members presenting their initial views. JURI hosted a meeting on 22 March where MEPs voiced a range of opinions on various aspects of the copyright reform proposal. The divide between the MEPs seems to run deeper than mere disagreements on definitions; instead, they underscore a fundamental schism in the MEPs’ understanding of the world we live in.
Some MEPs reacted to the copyright reform proposal using a 20th century ordering of the world, where mass-scale creative industries emerged and eventually were consolidated. For MEPS such as Jean-Marie Cavada (ALDE, France) or Angelika Niebler (EPP, Germany) the world has not changed all that much in terms of where important stuff happens. Cavada and Niebler think publishers and other rightsholders produce all the real value, while the internet and new sharing technologies is like a portable TV that that main purpose of is to constantly rip them off.
Seeing the world like that, it’s no wonder that they mostly approve of the European Commission’s original proposal, and oppose reforms that champion users’ rights, which for the most part they see as legitimizing tech-enabled theft. There is no coincidence that many of those creative industry backers are from France and Germany, countries that built their considerable entertainment industries well before the digital era.
Again we are witnessing an attempt to make the Frankenstein’s monster, article 13, a bit prettier as the Legal Affairs Committee’s (JURI) report has been officially published. Instead of killing it altogether with its recitals, MEP Therese Comodini Cachia tries to save the numbering of the proposal and at the same time to diffuse the bomb the European Commission set against users’ rights.
Filtering is kind of gone
The reading of the proposed article 13 text leaves no doubt that the intent is to remove the upload filter. The reference to “preventing the availability” of content uploaded by users who have no ownership over it is gone from article 13 paragraph 1. The emphasis is on effective and proportionate measures that the information society service providers need to take to ensure that the agreements they conclude with rightsholders are functioning well.
At first sight the amendments proposed for article 13 seem good. What kind of measures should be carried out is left open. It can be really anything that parties decide would work for them, be it some compensation or a share in the revenues the content users upload generates when there are ads on display. Unfortunately, looking into the recitals, it gets more complicated. Ms Comodini proposes no rewrite to recital 39 that would change the fact that the content recognition remains a go-to technology in terms of assessing the rights to uploaded content.
What are the consequences of that? It means that effectively the ISSPs and rightsholders are not encouraged to look beyond tech solutions to address any perceived disparities of income. Rather, the directive legally validates the existing market practice of employing tech such as Content ID to sort out ownership of the content. With her concept Ms Comodini may have closed the gate to filtering uploads but she left the path leading to it basically intact.
Another consequence is that if article 13 had ever meant to make Youtube weaker, by constant relying on tech solutions in settling human disputes, it equips the tech giant with an enormous competitive advantage. After all they already have Content ID.
MEP Therese Comodini Cachia, the Rapporteur on the Copyright in the Digital Single Market Directive in the European Parliament’s Committee on Legal Affairs (JURI), is currently perhaps the most influential person on copyright policymaking in Brussels. Last week her draft report was officially published. Communia has already praised Ms. Comodini for calling the publishers’ bluff on ancillary copyright and for proposing to really unlock Europe’s research potential by removing the harmful and unworkable restrictions to text and data mining that the European Commission proposed.
Given Ms. Comodini’s deep understanding of the interplay between law, society, and technology, and the shrewd manner in which she solved several legal Gordian Knots in her draft, it comes as a disappointment that we fail to see some forward-looking changes that would really make the European copyright framework fit for the Digital Single Market.
Freedom of Panorama
Some two years ago the European Parliament had its first heated discussion on the question of Freedom of Panorama. A lot has happened since then, including introduction of a new copyright exception in support of Freedom of Panorama in both France (limited) and Belgium (full). Continue reading
MEP Therese Comodini Cachia, Rapporteur for the European Parliament’s influential Committee on Legal Affairs (JURI), finally released the official version of its already-leaked draft opinion on the Commission’s Directive on Copyright in the Digital Single Market.
As we explained yesterday, Comodini’s draft misses the opportunity to introduce more forward-looking provisions that would strengthen the position of users such as a much-needed exception for user-generated content and freedom of panorama. At the same time, there are positive amendments, including the removal of the ill-advised ancillary right for press publishers.
The JURI draft amendments are quite positive with regard to the exception for text and data mining. The Commission’s original proposal limited the beneficiaries of the text and data mining exception only to research organisations, and only for purposes of scientific research. Comodini’s amendments would expand the TDM exception to apply to anyone for any purpose. In addition, it would mandate that publishers provide a mechanism for users who otherwise do not have legal access to the corpus of works to be able to engage in TDM on the publisher’s content, possibly after paying a fee to those publishers. Finally, the amendment would direct Member States to setup a secure facility to ensure accessibility and verifiability of research made possible through TDM.
Today, MEP Therese Comodini Cachia, the European Parliament’s main rapporteur for the proposed copyright in the Digital Single Market directive published her draft of the JURI report (pdf) on the Commission’s proposal. In line with the initial reactions from the rapporteurs from the Culture and Education (CULT), Internal Market and Consumer Protection (IMCO), and Industry Research and Energy (ITRE) committees Ms. Comoidini’s report points out substantial flaws in the Commission’s unbalanced and backward-looking proposal.
Unlike her colleagues from CULT and IMCO Comodini has limited her report to fixing flaws in the provisions proposed by the Commission. While such fixes are important, this means that her draft report constitutes a missed opportunity to introduce more forward-looking provisions that would strengthen the position of users such as much-needed exceptions providing legal certainty for user generated content and ensuring freedom of panorama in all of the EU.
Below we provide a brief overview of the changes to the Commission’s proposal that Ms. Comodini proposes in her draft report. We will follow-up over the next few days with more in- depth analysis of individual issues.
R.I.P ancillary right for press publishers
Her most straightforward intervention is to delete the Commission’s proposal for a new neighboring rights for press publishers. In line with what we and many others had proposed she instead proposes to solve the enforcement problems of press publishers by improving their ability to act against infringing uses of works published by them:
Member States shall provide publishers of press publications with a presumption of representation of authors of literary works contained in those publications and the legal capacity to sue in their own name when defending the rights of such authors for the digital use of their press publications. (AM 52)
Sharing cultural works online is a familiar part of life for hundreds of millions of people. Many of them share to satisfy a sincere desire to empower and inform their communities, to self-affirm and self-create in the virtual world. But under the law much of this sharing infringes copyrights and neighbouring rights, which means that rightholders are entitled to seek compensation. So how can we adjust the law to the realities lived by millions online and still be fair to authors?
Looking for more balance
A proper solution for these problems needs to introduce a space of legal safety for natural persons who use copyrighted works for noncommercial purposes as well as provide for a fair and transparent scheme for remunerating rightsholders. It could build upon users’ willingness to pay for on-line sharing, as shown by some studies.
However, putting those ideals into practice and translating them into the word of law is not easy. It is because any regulation of exclusive rights of authors should comply with strict requirements formulated in the international and EU copyright regime. The starting point is that generally a copyright holder’s consent is necessary for any use of a work. Traditionally, there have also been some uses of copyrighted works not requiring consent. In the EU such uses are usually called “exceptions and limitations”.
Noncommercial sharing exception
Can noncommercial sharing be covered by an exception? Well, current exceptions and limitations are listed in the INFOSOC Directive. This is a closed list, so although the idea is appealing, the Member States are not free to add new exceptions on their own. Hence a need for the activity at the EU level.
It is great that ITRE Rapporteur Zdzisław Krasnodębski joined IMCO Rapporteur Catherine Stihler in thinking that the right to read is the right to mine. As we explained in detail, his draft proposal opens up the TDM exception to anyone and makes sure any safeguarding measures won’t stand in the way of applying the technology. As progressive as it is, however, the fact that ITRE’s Rapporteur focused only on TDM and proposed a minor tweak of article 14 is also a statement. What is not mentioned is as significant as the changes that are proposed.
The fact that the most controversial articles are not a subject to any improvement by the ITRE draft opinion may of course indicate how the Rapporteur perceives the Commission’s mandate to propose input on copyright. Naturally, the TDM exception would provide an enormous opportunity for the European industry to expand their R&D without looking for an academic partner to benefit from the exception. But is that really all there is in the directive proposal that could benefit the realms of Industry, Research and Energy?
Better education makes better economy
In the information economy, modern accessible education is a cornerstone. Now that across all industries there is an enormous demand for workers that can keep up with developments in technology and knowledge, lifelong learning becomes an inseparable element of any professional career.
We’ve already reviewed the draft opinions from the European Parliament’s Culture and Education Committee (CULT) and the Committee on the Internal Market and Consumer Protection (IMCO) on the Commission’s proposal for a Directive on copyright in the Digital Single Market. Regarding the introduction of an exception for text and data mining (TDM), the IMCO amendments would strengthen the Commission’s original plan by creating a broad exception for text and data mining that would apply to anyone for any purpose. On the other hand, the changes offered by CULT would further restrict the ability to conduct TDM in the European Union.
TDM for all
This week the Committee on Industry, Research and Energy (ITRE) released its draft opinion on the Commission’s plan. Rapporteur Zdzisław Krasnodębski’s suggested changes focus on the proposed exception for text and data mining. ITRE’s amendments—similar to those offered by IMCO—would support an expansive TDM exception that could be leveraged by entities beyond research organisations, and for purposes beyond scientific research.
Last week the Committee on the Internal Market and Consumer Protection (IMCO) released a draft opinion on the proposed Directive on Copyright in the Digital Single Market. It’s not bad. Rapporteur Stihler’s opinion makes it clear that the European Commission’s proposal is seriously flawed and requires substantial changes. It contains proposals for amendments that address many of the issues with the original proposal. This week we’ve written more extensively on these, including the suggestion to drop the ancillary copyright for press publishers, the broadening of the TDM exception to permit mining by anyone for any purpose, a potential fix to the content upload filtering mechanism, and the continued problematic reliance on licensing within the exception for educational purposes.
We are pleased that just as in the draft CULT opinion, IMCO acknowledges the importance of protecting and strengthening user rights. Rapporteur Stihler’s broad scope is especially important, as it would permit a person “to use an existing work or other subject matter in the creation of a new work or other subject-matter, and use new work or other subject matter”. In other words, it doesn’t matter what a user needs the protected content for, he or she may just use it as long as they create something new with it. For reference, CULT’s draft opinion proposed a UGC exception to apply primarily when it serves criticism, illustration, parody, etc.