Draft Internal Market Committee opinion introduces balance into the copyright debate

De baljuw voert de koe van de boer weg
important steps in the right direction
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Yesterday, Catherine Stihler, the Rapporteur for the Internal market Committee of the European Parliament (IMCO) published her draft opinion on the proposed Copyright in the Digital Single Market Directive. As with the draft opinion of the CULT committee which we have extensively discussed here, here and here the IMCO draft makes it clear that the European Commission’s proposal is seriously flawed and requires substantial changes.

Catherine Stihler’s opinion contains proposals for amendments that address many of the issues that we have identified with the proposal, and on all of them she makes suggestions that move into the right direction (which includes proposal for a total of five new mandatory exceptions).

R.I.P. press publishers right

The ill-considered proposal to introduce a new neighbouring right for press publishers right is met with the only sensible answer: deletion of the relevant article and recitals. She points out, in line with what we have argued for, that the protection sought by publishers can be achieved with much less invasive means than the reaction of a new right:

Simple changes made to Article 5 of the Enforcement Directive 2004/48/EC, making it also applicable to press publishers, will provide the necessary and appropriate means to solve this matter.

Together with indications that the rapporteur for the JURI committee is also not convinced that press publishers need such a right, this starts looking like the end for the short sighted idea of curing the problems of the press sector with additional rights.

No upload filtering requirement for online platforms

While Stihler’s opinion is less rigorous on the upload filtering provisions contained in Article 13 (which we would also like to see deleted), her approach to the mess created by article 13 covers all the right bases. Her amendments remove all references to filtering measures and “effective content recognition technologies” and make it clear that any new obligations do not contradict the E-Commerce Directive: Continue reading

Why Australian Schools Need Fair Use

Interieur met een vrouw die de krant leest
Australia on getting a better copyright for education
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It is Fair Use week, and we have a special guest author sharing about a copyright debate that is considering implementing Fair Use: Delia Browne is National Copyright Director of the Australian National Copyright Unit (Schools and TAFEs). Australia is in the process of re-evaluating its copyright law, including the rules regarding education. The Australian reform offers interesting parallels with the actions in the European Union. We can only wish that a debate on flexible copyright norm was taking place also in Europe.

Like almost all nations, education is crucial to the future economic and social well-being of Australia. These are exciting times for education, but the benefits of the digital era will not be fully realised in our classrooms unless greater flexibility is introduced into our copyright laws. The rules around copyright were designed in the age of the photocopier; these are not working in the age of the iPad and the 3D printer, and are holding back innovation in schools.

The current system isn’t working

Copyright reform is a significant issue for Australian schools, as Australia’s outdated copyright laws currently stand in the way of teachers using the most modern teaching methods in the interests of Australian students. For example:

  • The copyright rules are different for printed materials and digital teaching methods: current regulations stop teachers from using copyrighted material in online exams because the law says that exceptions to copyright for education apply to hard copy exams only.  Similarly, teachers can write a quote from a book on a blackboard with chalk for free, but a licence fee applies when teachers write the same quote on an interactive whiteboard.
  • The educational statutory licences penalise Australian schools for using digital technologies, as giving students access to content using digital technology can be up to four times more expensive than hard copy technologies. For example, printing a hard copy to hand out in class is one remunerable activity; providing the same information in digital form can involve as many as four remunerable activities.
  • Modern teaching and learning methods such as MOOCs are transforming the way that education is delivered, but Australian copyright laws limit the ways that schools can take part in this. The Copyright Act does not permit these types of activities. By definition, MOOCs are open; i.e. MOOC courses are not confined to students enrolled at a particular educational institution. Neither the statutory licence, nor the research and study fair dealing exception, usually apply when content is shared with people outside the school.  
  • Schools pay millions of dollars of public funds to use freely available internet materials in the classroom. For the most part, the authors of these materials never wished or expected to be paid for these materials (like head lice fact sheets), or works where no copyright owner can be found.
  • Government policy and community expectations require schools to take an increasing role in STEM education, industry collaboration, and equipping students with the digital skills they need to be successful in the workforce of the future. Australia’s copyright laws are hampering this. None of the existing copyright exceptions of statutory licences allows schools to use small amounts of copyrighted material when engaging in collaborative projects with the broader community, business, and industry.
  • Critically, the absence of appropriate copyright exceptions makes it difficult or impossible for teachers to assist students with disabilities, such as making format-appropriate copies of resources for vision- or hearing-impaired students.  

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MEP Joulaud’s opinion resurfaces non-commercial freedom of panorama

Ivens & Co. Fotoartikelen. Amsterdam Spuistraat 216 Nijmegen, Groningen
Europe needs a broad freedom of panorama right
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Last week the Culture and Education Committee of the European Parliament (CULT) released its draft opinion on the European Commission’s proposal for a Directive on Copyright in the Digital Single Market. Rapporteur Joulaud highlights that the Commission’s proposal ignores many of the crucial concerns voiced by internet users, and offers some amendments to improve this situation. However, many of these changes do little to promote user rights and freedoms. Instead, he suggests a confusing change to the proposed ‘press publishers right’ by introducing a non-commercial clause, a push for an even stronger reliance on licensing instead of a broad education exception, renewed support for filtering of user uploaded content, and further restrictions on TDM activities.  

From our perspective, the issue of Freedom of Panorama—the legal right to take and share photos, video, and images of architecture, sculptures and other works which are permanently located in a public place—was not adequately addressed in the Commission’s proposal. In fact, it wasn’t included at all. We’ve urged the European Parliament to introduce a broad, EU-wide Freedom of Panorama right that applies to both commercial and noncommercial uses of all works permanently located in public spaces.

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Rapporteur CULT preserves upload filters in draft opinion

Experiment met luchtledige bol, Valentine Green, after Joseph Wright of Derby, 1768
upload filters should be removed from the proposal
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Marc Joulaud, the rapporteur for the Culture and Education Committee of the European Parliament, points out in his draft opinion issued last week that the Commission’s copyright proposal ignores many of the most pressing concerns of internet users. At the same time, he fails to deliver adequate solutions to these problems. In this post we discuss his proposed amendments concerning the exception for user-generated content (UGC), and Article 13. The inclusion of a UGC exception is a step in the right direction. But the proposed amendments to Article 13, the section which introduces a filtering obligation for online platforms that allow users to upload content, make the already-harmful article even worse for users.

Adding a vague definition of ‘digital content platforms’

Joulaud recognizes that the scope of services potentially affected by Article 13 is quite unclear.

It is the Rapporteur’s opinion that the proposal does not define with enough precision the scope of services falling under the requirements of Article 13 of this Directive, creating legal uncertainty and a potential broader effect.

However, the solutions he proposes do not strengthen the legal certainty for those entities who might be covered under the article; they make it worse. Joulaud proposes a new definition of entities obliged to use upload filters called ‘digital content platforms’. This definition is aimed to center around the principle purpose of services instead of the activity of storing. The draft opinion is unclear regarding which information society service providers would count as ‘digital content platforms’, and it’s also uncertain whether these platforms would still receive the protection of the liability limitations of the eCommerce Directive. Just like the Commission’s proposal—which remains vague on how it will affect the safe harbor protection—Joulaud’s suggested amendment doesn’t provide any more clarity to the situation.

Upload filters don’t—and can’t—respect user rights

The most important flaw of the draft opinion is that even though Joulaud seems aware of the importance of user rights, he still tries to reconcile ‘effective’ content recognition technologies with user rights, including exceptions and limitations and freedom of expression. This is an impossible task. Continue reading

European Commission doesn’t want to say how the directive was conceived

The Birth of Minerva
does the directive come from one man's head?
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Wouldn’t we all want to know how the copyright reform proposal gained its current shape? Was it at a roundtable of sages? Did someone knock Commissioner Günther Oettinger’s head and the proposal sprung out? We have filed an access to documents request (FOIA) to find out what the EC legal services’ opinion was in this process.

Chances are we will not have full clarity on the evidence that substantiated the proposed directive on copyright in the digital single market. After European Digital Rights filed a request to access the correspondence between Commissioners, cabinets and services on the proposal for a copyright Directive in October 2016, the recent response was that there is 1 (ONE!) email that meets the criteria. It would seem that the Commission have a strong oral tradition and excellent collective memory if this is really the only recorded evidence to attest to the quality of the process.

To make things worse, the email cannot be revealed because “the disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure”. We believe that the public interest in knowing how absurdities such as new rights for publishers or the upload filter found its way to the proposal is indeed overriding the secrecy of the only email that has ever been exchanged on the topic. Obviously EDRi has filed a confirmatory application to review the handling of the request that is yet to be considered by the EC.

To learn more about the legality of the most problematic parts of the proposal, Centrum Cyfrowe, COMMUNIA member, filed a FOIA to access the European Commission’s legal service opinion(s) on the drafts of the proposal on February 13, 2017. With the two processes, the Commission has a chance to make the right choice and spill the beans on their intel and sources. If the European Commission decides otherwise, we will be left wondering if the proposal is a result of some intense industry lobbying, or perhaps of unpreparedness of DG Connect to properly address challenges of the 21st century.

Refusal will give a bad name to the EC legal services that could have let out a really bad piece of lawmaking that contradicts existing regulation as well as the EU case law. Moreover, the Commission will prove again that it is one of the least transparent European institutions while keeping its finger on the trigger of change that will shape our digital lives for many years to come.

Culture Committee Doubles Down on Restricting Research Opportunities in the EU

Figuren bij een drukpers
A good TDM exception will strengthen science
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Last week the Culture and Education Committee of the European Parliament (CULT) released its draft opinion on the European Commission’s proposal for a Directive on Copyright in the Digital Single Market. Rapporteur Joulaud rightly shows that the Commission’s proposal ignores many of the crucial concerns voiced by internet users, and offers some amendments to rectify the situation. At the same time, the opinion suggests an ill-advised change to the proposed ‘press publishers right’ by introducing a non-commercial clause. In addition, CULT pushes for an even stronger reliance on licensing, instead of supporting a broad copyright exception for education.

But perhaps the area of the draft CULT opinion that is most detrimental to users and the Digital Single Market is in the suggested amendments to the text and data mining (TDM) exception. The Commission’s original proposal was nothing to write home about. Instead of championing a progressive policy to boost scientific discovery and innovation in the EU by introducing a TDM exception that would apply to anyone for any purpose, the Commission decided to limit the scope of the exception to only not-for profit research organisations, and only for purposes of scientific research.  

The draft CULT opinion goes even further in restricting the ability to engage in TDM in the European Union. Continue reading

Culture and Education Committee does not fight for a copyright that supports education

Cure of Folly (Extraction of the Stone of Madness)
Nothing traditional about remunerating exceptions for education
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Last week we started discussing the the draft opinion of the Culture and Education Committee of the European Parliament, presented by rapporteur Marc Joulaud. While he rightly points out how unbalanced the proposal is as it ignores many of the most pressing concerns of internet users, he does not help the discussions surrounding the ‘press publishers right’ by introducing a murky non-commercial clause. Today we discuss his amendments for education. In short: it does not spell good news for educational stakeholders. In a move that on the surface aims to provide greater clarity, Joulaud pushes for even stronger reliance on licensing for educational uses. Furthermore, he proposes to make remuneration for digital teaching uses mandatory. We opposed both these changes from the very beginning of the discussion on the scope of the copyright reform.

It is worth noting that the issue of exceptions (in particular for education) has not received as much attention as the link tax (art 11) or the content filter (art 13) in the whole debate on the proposed directive. Yet it is crucial from the viewpoint of a Committee that deals with education, and Joulaud rightly sees it as one of four key issues.

Joulaud, in the justification to the opinion, and in an opinion piece published by the Parliament Magazine, declares support for a balanced approach:

If the protection of intellectual property is a fundamental right, it should not be a disproportionate obstacle to the use of works for public interest.

He adds:

[…] for instance by threatening existing and perfectly viable ecosystems, like commercial licenses for data mining or educational licensing schemes.

This is reasonable as a general statement, but we’ll see that it leads Joulaud to propose amendments that are hardly balanced.

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Limiting the snippet levy to commercial use is tangling up an already muddy issue

elsevier
Ancillary copyright: still bad policy
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The Rapporteur Marc Joulaud of the Committee on Culture and Education (CULT) recognises the problem with proposed article 11 regarding protection of press publications concerning digital uses – it can threaten hyperlinking and various ways users use content online. In Communia’s opinion the Commission’s proposal to introduce a right for press publishers is poorly aligned to the objective of modernising the EU copyright framework and adapting it to the challenges of a fast-evolving digital environment. In the light of the above we believe that the only solution is to remove the whole idea from the directive. This is not the approach shared by CULT – instead 3 problematic changes were proposed:

  1. the limitation of the ancillary copyright is only for commercial purposes,
  2. the confusing and vague attempt to carve out snippets, and
  3. the term of protection is to be 3 years, which is still too long for news.

Muddy area’s still unclear

Instead of solving the problem, the Rapporteur Marc Joulaud made everything even more tangled by adding to the proposed scheme the requirement that press publication must be used ‘for commercial purposes’. As we raised before in freedom of panorama discussion, implementing a distinction between commercial and non-commercial use, namely two very vague terms, is never a good idea. It will muddy any legal certainty for citizens engaged in sharing press publications.

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European Parliament opinion slams European Commission for unbalanced copyright proposal

Spotprent op het bedrog van de firma C. de Bruyn & Zonen
Users rights need to be part of the balance!
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Earlier today Marc Joulaud, the CULT rapporteur for the proposed Copyright in the Digital Single Market directive, published his draft opinion on the proposed directive. Joulands draft opinion is the first of many similar documents dealing with the Commission’s proposal that will emerge from the European Parliament in the next weeks and while it will likely undergo significant changes it is a really promising start of the parliamentary process.

The draft opinion contains 85 amendments to the text of the Commission’s proposal that deal with all aspects of the directive. Over the next few days we will provide more detailed analysis of his proposals for a number of the issues that COMMUNIA has been focussing on such as the proposed exceptions for TDM and education, the new right for press publishers and the content filtering obligation for user uploaded content.

Users’ rights need to be a part of the debate

While we certainly do not agree with all of his positions, Joulaud’s draft opinion deserves to be praised. In line with our own analysis of the Commission’s proposal, Joulaud observes that the proposed directive is out of balance as it ignores many of the most pressing concerns of internet users:

It is the Rapporteur’s view that the proposal does not acknowledge the position consumers, as service users, now occupy in the digital environment. No longer playing a mere passive role, they have become active contributors and are now both a source and recipient of content in the digital ecosystem. […] digital practices of users do not benefit from legal certainty under the current copyright rules, in particular the exceptions and limitations, and therefore require a specific approach, a fourth pillar within this Directive.

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Evidence from Spain shows that new rights for publishers become a racketeer tax

chokehold on aggregators
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Coincidence has written a postscript to our yesterday’s post Good news! Quality journalism doesn’t need the snippet levy. A recent tariff on how much linking will be charged for revealed by the Spanish Reproduction Rights Centre (CEDRO) shows that publishers’ appetites are great and likely to ruin online access to content we need and like.

CEDRO decided that per each active user per day it wants to charge a daily rate of € 0,05044854. We can endlessly discuss if this arbitrary rate is a lot or not much per user-day. But this is where the economy of scale of 5 cents is pivotal – Menéame, a Spanish aggregator has an average of 139 thousand unique users accessing their site per day. So 5 cents scales up to a quite substantial 7+ thousand euro per day and that to an astronomic 2,56 million euro per year.

The problem is that this is 20 times as much as Menéame’s annual turnover (125 thousand euro). In short, a piece of legislation aimed at Google chokeholds smaller enterprises while reinforcing the giant’s dominant position.

What is perhaps worse, we have landed in this mess based on false assumptions: whatever affects the traffic to news content (could it be the decreasing quality of the news and proliferation of meaningless clickbait? Hmmm…) it is not the aggregators. As research shows they in fact assist users in optimizing their attention economy and in result sustain the traffic.

Based on these false assumptions the publishers want to racket sums that have nothing to do with the economic situation or the scale of operations of the aggregators in a strive to compensate an imaginary loss by ripping off those who in fact help news readership. By doing so the rightsholders resemble thugs that raid a bar and extort payments only because the bar is in their neighborhood.

Say no to the racketeer tax in EU!

Now, thanks to the European Commission’s copyright directive proposal we are facing the danger of that mess spilling all over Europe. If you feel you’d like to do something about this, write an email to Members of the European Parliament from your country to kick off article 11 from the copyright directive proposal. There is still time to stop this nonsense.