Worst version of the EU copyright reform proposal yet, thinly veiled as a “compromise”

Persiflage op de censuur
Stop the attack on open internet platforms!
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Earlier today MEP Julia Reda has published two documents containing “EPP alternative compromise amendments” to the IMCO draft opinion on Copyright in the Digital Single Market directive. These documents propose alternative “compromise” AMs on the proposed publishers rights (article 11) and on the so called “value gap” (article 13). Both documents have been drawn up by MEP Pascal Arimont, the EPPs shadow rapporteur in IMCO and contain the most brazen attempt so far to push through a rightsholder agenda that goes even further than the commission’s flawed proposal. While it is unclear how much support these amendments have it is very clear that they express extremist positions rather than “compromises”.

Press publishers über alles

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

Romanian Parliament to European Commission: Copyright reform does more harm than good

The parliament of birds
Entire © reform proposal should be rejected
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While the European Parliament is in the middle of its discussions about the European Commission’s proposal for a Directive on Copyright in the Digital Single Market, similar discussions are taking place in a number of Member State parliaments. The results of these conversations will influence the position that Member States take in the discussions in the Council.

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

JURI rapporteur proposes to fix most egregious flaws of the copyright reform proposal

Het is goed om voor het eerst weer te schrijven
Redrawing the balance
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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)

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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: 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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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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COMMUNIA policy paper on proposed Directive on collective management of copyright

Today the COMMUNIA International Association presents its sixth policy paper. The paper is a reaction to the European Commission’s proposal for a directive on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online uses in the internal market.

The COMMUNIA Association welcomes the European Commission’s efforts to modernise collective management in Europe by providing rules for multi-territorial licensing of rights in musical works for online uses, and more generally by increasing the standards for transparency and accountability of Collective Rights Management Organizations (CMOs) operating in Europe.

Copyright management plays a central role in determining legal certainty for the digitisation of the European cultural heritage and for enabling an accessible and reusable digital Public Domain. This proposed directive intervenes at a crucial moment in the evolution of the information society and in the history of the European copyright system, where innovation and public access to knowledge should be a priority of policy-making.

The policy paper draws attention to two issues where the proposal should be improved. The first one concerns the transparency of repertoire information. We consider the proposed measures not sufficient and suggest an amendment to require that CMOs must provide this information more widely. The second issue concerns the relation between collective management and open content licenses. In our opinion, the proposed directive fails to address the existing incompatibilities between the collective management of rights and open content licensing.

The full COMMUNIA Association reaction on the Directive proposal on Collective Management of Copyright can be downloaded here. For further information about the paper please contact the COMMUNIA Association at communia DOT association AT gmail DOT com.

Are European orphans about to be freed?

This post by Lucie Guibault was first published on the Kluwer Copyright Blog and is reproduced here with kind permission of the author.

Last week, the European Parliament approved the draft Directive on certain permitted uses of orphan works. The approval of the Council of Ministers is expected to occur shortly.

This is big news indeed, for it’s the first draft directive in the area of copyright law to make it this far in more than 10 years. It’s been commented and reported by many.

The proposed directive is striking in many respects. Most prominent is the virtually unanimous opinion that the directive ‘is a step in the right direction’, but that it ‘will not facilitate nor promote mass digitization and large-scale preservation of Europe’s vast cultural heritage’. This conjures up the image of the elephant giving birth to a mouse.

The text of the proposed directive went through several iterations before reaching its current stage, including the last amendments brought by the Parliament to the compromise text of last July. Some of the sharp edges have been softened in response to criticism, but the main point of contention remains: how can a cultural heritage institution with millions of items in its collection proceed with digitization if it must conduct prior to use a diligent search for each item? Since this train could not be stopped, cultural heritage institutions are now looking in the direction of their own lawmakers and partner-stakeholders to determine what constitutes a ‘diligent search’ at national level, following the criteria they may establish pursuant to article 3(2) of the directive.

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The hangover after Public Domain Day…

This post by Lucie Guibault was first published on the Kluwer Copyright Blog and is reproduced here with kind permission of the author.

The New Year’s festivities are just behind us and with these the celebrations around Public Domain Day 2012 that took place in different cities in and outside Europe (Warsaw, Zurich, Turin, Rome, Haifa etc.).

2012 brings with it the joy of using James Joyce’s masterpieces without asking the estate for prior authorization (which more often than not met with a ‘no’ for an answer!). No one needs to be afraid of using the works of Virginia Woolf any longer! And the fans of Arsène Lupin, the French ‘gentleman burglar’, are now able to borrow – for good! – the ideas of its author, Maurice Leblanc. The works of several music composers are also free for reuse, including those of Frank Bridge and Johan Wagenaar.

The Public Domain Day IS important and SHOULD be celebrated annually, for it gives us the occasion to reflect on the significance of works of past authors and to measure the wealth of our common knowledge and culture. But unlike the New Year’s celebrations, however, those of the Public Domain Day do not attract much attention among the general public. Festivities of this sort are usually low-key, taking place in libraries, universities or cafés and gathering only the selected few of the well informed and culturally savvy.

Any cramped optimism concerning the public domain is further discouraged by the fact that the term of protection for copyright and related rights is 1) highly unharmonized across jurisdictions and 2) still being strechted beyond recognition through constant legislative action.

As an illustration of the first point, let me mention the case of world famous writer Ernest Hemingway (1899-1961) whose works have fallen into the public domain two days ago in Canada, but neither in his home country, the United States, or in Europe, where copyright lasts for the life of the author + 70 years.

In Europe, the calculation of the term of protection for copyright and related rights is rendered particularly complex due to the lack of proper harmonisation of the governing rules in EU jurisdictions. Although the adoption of the EC Term Directive was an attempt to alleviate disparities between the Member States, harmonisation gaps persist. As a result, the composition of the public domain will differ depending on the country in which protection is sought, as works fall out of copyright on different dates in different EU jurisdictions. This effect is illustrated in the Public Domain Calculators by the need for separate calculators, giving upon occasion very different results, for each of the 30 jurisdictions covered, including the 27, ostensibly harmonised, EU Member States.

In relation to the second point, 2012 will inevitably see the first pieces of national legislation emerge in the EU Member States towards the implementation of Directive 2011/77/EU amending Directive 2006/116/EC on the term of protection of copyright and certain related rights. Through this statutory amendment only sound recordings published or communicated to the public before 1941 will be free for use. In practical terms, this means that none, not even the early recordings, of Maria Callas will be available for re-use without prior authorization of the record company holding the rights.

Finally, the march towards term extension does not seem to have reached its limit if one only takes a look at the clauses contained in bilateral and mulilateral trade agreements currently negotiated by the United States. Article 4.5 of the Trans-Pacific Partnership, for example, would bring the copyright term of protection of signatory countries up to the American (and European) level, as has been the case in the past in the context of bilateral agreements (with Australia and many countries of Central and South America, to name but these).

These are very sobering thoughts indeed! If the alcohol fumes of the New Year’s party still had any effect, one could even be tempted, for simplicity’s sake, to just make copyright protection perpetual…