Today we are publishing the fifth in a series of position papers dealing with the various parts of the European Commission’s proposal for a Directive on Copyright in the Digital Single Market (the previous papers dealt with the education exception, text and data mining, the press publisher’s right and freedom of panorama). The paper deals with article 13 of the Commission’s proposal which introduces a filtering obligation on online platforms that allow users to upload content (such as facebook, youtube flickr and many other online services). The proposal fails to establish clear rules for internet users that make it clear how they can share and remix content legally. Instead it introduces a filtering requirement for online platforms that can potentially serve as a censorship machine and will violate users’ fundamental rights and distort the existing legal framework. From our perspective article 13 and the related recitals should be deleted from the proposal (You can download a pdf version of the position paper here).
Position paper: Use of Protected Content by Information Society Service Providers
Article 13 of the European Commission’s proposal for a Directive on Copyright in the Digital Single Market attempts to address the disparity in revenues generated for rightsholders and platforms from online uses of protected content. The proposed article attempts this by introducing an obligation for “Information society service providers that store and provide to the public access to large amounts of works” to filter user uploads. It would also require these providers to set up licensing agreements with rightsholders.
These proposed measures, however, do not address the issue adequately; instead, they violate fundamental rights of users, contradict the E-Commerce Directive, and go against CJEU case law.
The measures proposed in the Commission’s proposal stem from an unbalanced vision of copyright as an issue between rightsholders and ‘infringers’. The proposal chooses to ignore limitations and exceptions to copyright, fundamental freedoms, and existing users’ practices. In addition, the proposal fails to establish clear rules with regard to how citizens can use protected works in transformative ways—such as remixes and other forms of so-called “user-generated content” (UGC). As a result, a system of this kind would greatly restrict the way Europeans create, share, and communicate online.
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.
In the copyright reform process, according to MEP Therese Comodini Cachia, the European Parliament is not looking for polarized stakeholder opinions. Instead, it is looking for data and evidence. On September 8 in Brussels we delivered on the latter by showing there is still a chance to unlock the copyright for users. As to what MEPs don’t need, polarization may be difficult to avoid as long as legitimate users’ interests are considered to harm traditional copyright revenue streams.
Our event “Copyright reform – unlocking copyright for users?”—which we organized together with EDRi and hosted by MEPs Comodini Cachia (EPP) and Carlos Zorrinho (S&D)—gathered a full house in the European Parliament on a sunny afternoon. Representatives of digital rights’ organizations, creative industries, publishers, collecting societies, and artists were eager to talk about the future of copyright in the light of the imminent publication of the Commission’s copyright reform proposals.
Complain, and then move forward
From the perspective of COMMUNIA and EDRi the leaked drafts of the Commission’s proposal presents a grim picture, where all ambitious attempts to adjust copyright to the challenges of the digital economy were replaced by a focus on propping up existing revenue streams. If the leaked proposals are measured against EDRi’s list of copyfails, almost none of the points identified as necessary to address are covered by the draft legislation. Those that are addressed are only superficial fixes to the existing state of affairs. The leaked proposal is like the new ACTA, as EDRi’s Diego Naranjo put it. Continue reading
We are impatiently awaiting the European Commission’s communication on the copyright reform that should happen on September 21st. We have a list of issues we think it should cover and together with EDRi we want to talk about what doesn’t work and should be changed as well as what does work and should be further reinforced.
On September 8th in Brussels MEPs Therese Comodini Cachia (EPP) and MEP Carlos Zorrinho (PASD) will host an event co-organized by COMMUNIA and EDRi on the possible future scenarios for copyright.
Our friends at EDRi will talk about the copyright deficiencies and areas for change based on their fascinating Copyfails series. We will talk about the need to reinforce users’ rights through the harmonization of limitations and exceptions based on our Best Case Scenarios for Copyright. Kennisland, a Communia member, will present the copyrightexceptions.eu, which collects and visualises where limitations to copyright are implemented in EU member states.
Regardless of the text of the EC Communication we will have our eyes set on the reform that should both protect users’ rights and adjust copyright for the 21st century. We are grateful that MEP Comodini and MEP Zorrinho are hosting this event and help spread this message.
We will publish the agenda of the event and registration info in mid-Agust. Meanwhile, please save the date for this important debate. See you on September 8th, 11:00-13:15 in the European Parliament, Brussels.
With the Best Case Scenarios for Copyright series we have proved that copyright has a brighter side for users. For satire and critique, in teaching, research and journalism, even while preserving memories of beautiful spaces – copyright exceptions help artists, audiences, students, and tourists alike benefit from access to culture and education.
What is important, the copyright exceptions do not break creative markets and don’t put creators out of business. On the contrary – which poet wouldn’t want her poems to be translated in class? Which architect wouldn’t want his building to become a landmark everybody recognizes? Such a massive spread of cultural tropes is possible through the exceptions we have presented: freedom of panorama in Portugal, parody in France, education in Estonia and quotation in Finland.
So what are the mechanisms and tricks that make exceptions great? Any copyright exception needs to balance legitimate interests of both the users and the rights holders. When that balance is achieved we can have more than 4 best case scenarios for copyright.
We have identified 6 magic ingredients that make copyright exceptions and limitations great. Here is how to mix them to #fixcopyright:
The right to quote is a pivotal element of science, study, critique, and art. By evoking somebody else’s words and creations we are able to enter into an intellectual dialog that is a foundation of our culture. Quotations substantiate scientific discourse and discovery of new knowledge. They are used widely in memes that have become a signature feature of social media.
Within the Best Case Scenarios for Copyright series, we present Finland as the best example for quotations. Below you can find the basic facts and for more evidence check the Best Case Scenario for Copyright – Quotations in Finland legal study. EU, it’s time to #fixcopyright!
What is a quotation exception?
- A quotation exception to copyright refers to citations or other uses of protected works as a way to support intellectual creation.
- The exception is justified by the freedom of intellectual creation.
The education exception benefits teachers, students, and researchers who need access to all types of educational and informational resources that are often protected by copyright. This exception balances the right to education with the rights of authors. Maintaining the balance is never easy, and some issues still await their interpretation in Estonia. Still, Estonia enjoys the widest education exception provisions among all EU member states.
Within the Best Case Scenarios for Copyright series, we present Estonia as one of the best examples for education. Below you can find the basic facts and for more evidence check the Best Case Scenario for Copyright – Education in Estonia legal study. EU, it’s time to #fixcopyright!
What is an education exception?
- An education exception to copyright relates to cases where protected works of all types are used for educational purposes or scientific research, both offline and online.
- The exception is justified by the public interest of access to education.
The parody exception cultivates the French tradition of satire. When the goal is to make people laugh, anybody can freely create a distinctively different mockery of a protected work. This encourages creativity and freedom of expression.
Within the Best Case Scenarios for Copyright series, we present France as the best example for parody. Below you can find the basic facts and for more evidence check the Best Case Scenario for Copyright – Parody in France legal study. EU, it’s time to #fixcopyright!
What is a parody exception?
- Rooted in ancient Greek, the term “parody” includes works of mockery, as well as quoting or referencing an older work in a modern interpretation of it. In France, parody implies adapting or borrowing from a work with the intention of having fun.
- The exception is justified by freedom of expression.
Freedom of panorama is a fundamental element of European cultural heritage and visual history. Rooted in freedom of expression, it allows painters, photographers, filmmakers, journalists and tourists alike to document public spaces, create masterpieces of art and memories of beautiful places, and freely share it with others.
Within the Best Case Scenarios for Copyright series we present Portugal as the best example for freedom of panorama. Below you can find the basic facts and for more evidence check the Best Case Scenario for Copyright – Freedom of Panorama in Portugal legal study. EU, it’s time to #fixcopyright!
Exception/Limitation: Freedom of Panorama
What is freedom of panorama?
- Derived from the German word Panoramafreiheit, freedom of panorama generally refers to the right to visually document works of architecture, sculptures, street art, or other copyrighted works, as long as they are permanently located in public spaces. In Portugal, the exception covers all sorts of documentation—not only photographs and video footage.
- The exception is justified by freedom of expression and public interest.
The copyright was originally meant to promote creativity and innovation, but instead it’s become outdated, overly complicated, and even threatening to some users. Fortunately there are still ways to fix copyright and the EU is in a unique position to do it. The European Commission should look into best examples of national-level solutions and apply them within the current reform. We present several best examples of exceptions and limitations that should benefit citizens in their access to culture and education across Europe.
Time to #fixcopyright and free the panorama across EU
EU, #fixcopyright and adopt the parody exception across Europe
Wide education exception is the best case scenario to #fixcopyright in EU
The right to think is the right to quote – #fixcopyright with wide quotations exception!
How to #fixcopyright with a great copyright limitation? A recipe for lawmakers
Best case scenarios for copyright – full brochure
Reform – the dealmaker or the dealbreaker for citizens?
The current copyright system fails us on so many levels that we know the forthcoming EU copyright reform won’t fix it all. Given the pressure from creative industries to introduce new rights in order to protect their existing business models, the outlook is not very good. Instead of engaging in discussions and actions that would rebalance copyright, users and public interest organizations engage in battles against bad policy ideas.
It is time to tell the EU that while it plays with the elusive vision of the Digital Single Market by inventing how to tax linking, there are some good solutions that already work in member states. Exceptions and limitations to copyright, so dreaded by many rights holders, do not break the creative industry in Portugal and France or the educational systems of Estonia and Finland. They simply work! To the benefit of creators, artists, students and users, reinforcing creativity, freedom of expression and providing good balance of the interests of rights holders and citizens.