The copyright reform proposal presented today by the European Commission fails to meet the needs of citizens, educators, and researchers across Europe. Instead of strengthening the information economy, the proposal preserves a status quo defined in the analog age. In the process, it hinders education, research and cultural expression.
European Commission lacks vision for copyright in the digital age
Today’s proposal buries the hope for a more modern, technologically neutral and flexible copyright framework that the Commission had hinted at in its initial plans for the Digital Single Market. The proposal largely ignores crucial changes to copyright that would have benefitted consumers, users, educators, startups, and cultural heritage institutions. It also abandons the idea of a digital single market that allows all Europeans the same rights to access knowledge and culture. Finally, it completely ignores the importance of protecting and expanding the public domain.
Copyright needs to evolve with technology. Instead of charting a course that can take Europe into the information economy of the future, the Commission has been busy rearranging the deck chairs on the Titanic.
Instead, the Commission’s proposal focuses on a wholly different goal: to minimize the impact of the fundamental changes brought about by digital technologies and the internet on legacy business models. Publishers get an ancillary copyright that already has proven itself worthless in practice. Access to most audio-visual content will continue to be hampered by geo-blocking (which the Commission had earlier committed to end), and online platforms might be forced to collaborate with rights holders on censoring content that is shared by users on these platforms. The whole package lacks forward-looking, innovation-friendly measures that embrace digitization as an opportunity for users, creators, businesses, and public institutions in Europe.
In doing this, the Commission abdicates its power to make the European future a better one. It is the future where the stakes are significantly higher than today’s market balance. Soon, the business models that the Commission is trying to protect will no longer be relevant. At stake is a future in which innovation-friendly Europe could have provided the best education for its citizens, drawn the best talent and investment options, and fostered the best research and job opportunities. Continue reading
By now you will have heard about yesterday’s terrible decision by the Court of Justice of the EU on hyperlinking. In its decision the court conceded that under certain circumstances the mere act of hyperlinking to a work that has been published elsewhere – without the consent of the rightsholder – constitutes a copyright infringement. Even without a detailed analysis of the ruling (which others have done here and here) it is clear that this is a very dangerous ruling as it steps away from previous situation that made a clear distinction between the acts of publishing protected works without consent of the rightsholder (copyright infringement) and the act of linking to such works (not copyright infringement). Yesterday’s CEJU introduces a lot of legal uncertainty for anyone who uses links online, and goes directly against a common sense understanding of how the internet works.
This will be welcome news to rightsholders who have been aggressively pushing for such a limitation to the freedom to link in the past as evidenced by amendments to the Reda report. While the EU parliament ultimately rejected these attempts the Court of Justice has partially granted them through the back door via yesterday’s decision.
As Julia Reda has already pointed out the decision is especially worrying in the context that publishers have also aggressively lobbying for the introduction of additional rights. We have repeatedly pointed out that this must be seen as another effort to gain more control over what users can or cannot do online by attacking the freedom to link.
It shows a remarkable amount of hypocrisy that the European Publisher Council refuses allegations that a new publishers right would affect linking…
“Nothing we are asking for would affect the way that our readers access publishers’ content, or share links on social media or via apps and email to friends and family”
…while one of their members has just gotten the highest court of the EU to declare that linking can in fact be illegal. Two weeks before the Commission is expected to propose an ancillary copyright for publishers, yesterday’s CJEU ruling provides us with another piece of evidence that such a right will be used by publishers as another piece in their strategy to limit who information can be accessed and shared online.
If this week’s leak of a draft version of the European Commission’s Impact Assessment on the modernisation of EU copyright rules shows one thing, it is that the various rightsholder groups have managed to completely hijack the EU copyright reform process.
A first analysis of the ten measures included in the Impact Assessment reveals that, under pressure from organized rightsholders, the EU copyright reform process, which started in 2014 with ambitious goals to modernize the EU copyright rules in order to create a digital single market in the European Union, has turned into a fragmented effort to protect the self-proclaimed interests of rightsholders.
Instead of harmonizing copyright rules across the EU and ensuring that they will not limit the potential of digital technologies, the Commission has chosen to focus on supporting legacy business models of rightsholders in an attempt to defend the status quo. This is a remarkably short-sighted approach to modernizing one of the core policy frameworks governing the information economy, especially if one takes into account that these rules will likely remain in effect for the decades to come.
While we are working on a more detailed analysis of the policy options proposed in the Impact Assessment, here are our initial thoughts on the ten measures covered. It is important to keep in mind that we base ourselves on a leaked version and that the final version can still change, although substantial changes are very unlikely. The document at hand is largely in line with other internal Commission documents, such as last December’s communication on the same topic (see our analysis here), and it is consistent with public statements of key policy makers.
The Impact Assessment is divided into three sections. The first one contains four measures aimed at ‘ensuring wider access to content’. The second one contains three measures aimed at ‘adapting exceptions to digital and cross-border environment’, and the final section contains three measures aimed at ‘achieving a well functioning market place for copyright’.
Exceptions as restrictions
One of the most interesting parts of the Impact Assessment is the section on ‘adapting exceptions to digital and cross-border environment’. The Impact Assessment proposes the creation of three new mandatory exceptions: one covering text and data mining for “public interest research organisations”, one covering preservation copies made by cultural heritage institutions, and one covering digital and online uses in the context of illustration and teaching. Creating mandatory exceptions to enshrine user rights is clearly a step in the right direction (although a tiny one in the case of the preservation exception, which already exists in most member states). At closer inspection, however, two of the three proposed exceptions come with significant flaws. Continue reading
Well that was quick: just two days after Commissioner Ansip delivered a non-denial denial that “this Commission does not have any plans to tax hyperlinks” Statewatch published a draft of the Commission’s own Impact assessment on the modernisation of EU copyright rules which clearly states that the Commission will indeed propose the introduction of an EU wide ancillary copyright for news publishers.
While nobody expected the EU commission to come forward with a proposal for a literal “link tax”, the “introduction in EU law of a related right covering online uses of news publications” is exactly what civil society groups like Save the Link are criticising as a link tax.
The term “link tax” is being used to point to the fact that granting news publishers’ additional rights will likely result in limitations on how Internet users and online platforms can interact with news content that has been published online. Over the last few years Spain and Germany have both introduced ancillary copyrights for press publishers, with the explicit purpose of allowing publishers to charge aggregation platforms and search engines for providing links to their content. Even though both attempts have failed in achieving this objective (something that the Commission concedes in the impact assessment), the publishers have clearly managed to convince the Commission that they should be granted a german-style ancillary copyright on the EU level. Continue reading
Last week we saw another Advocate General (AG) opinion published that deals with the position of cultural heritage institutions within the EU copyright framework. Hot on the heels of AG Szpunar’s opinion on e-lending, AG Wathelet weighed in on the question of whether the French system for making out-of-print books available online is aligned with the EU copyright directive. His opinion in the case C‑301/15 Soulier en Doke is that the French scheme, which assigns the digital reproduction and performance rights for out-of-print books to a collecting society that then licenses them, is incompatible with the InfoSoc directive. Such an opinion effectively undermines the idea that Extended Collective Licensing (ECL) can serve as a solution for the copyright problems created by mass digitisation of cultural heritage collections.
This opinion comes at a crucial time when the EU Commission is finalising its copyright reform proposal, which is scheduled to be published in September. As part of this proposal the Commission has promised to propose measures that will “make it easier to digitise out-of-commerce works and make them available”. While the Commission has so far been silent on the mechanism that it would propose to achieve this goal, it is generally understood that there are two different approaches on the table:
The Death of Extended Collective Licensing?
While AG Wathelet’s opinion only concerns the specific question referred to the CJEU by the French court, it has much wider-ranging consequences. Should the CJEU rule in agreement with the opinion (note that a decision is not expected until after the September publication of the Commission’s proposal), then Extended Collective Licensing is effectively dead as a solution for the copyright problems created by mass digitisation. In this sense, this opinion supports the position expressed by cultural heritage institutions that the only real solution for their issues is an update of the relevant exceptions in the InfoSoc directive. Continue reading
One of the more remarkable aspects of the Commission’s communication “Towards a modern, more European copyright framework” from last december was how much attention it paid to issues faced by Cultural Heritage Institutions. In the communication the Commission announced no less than four different interventions aimed at modernizing those aspects of the copyright framework that govern how Libraries, Archives and Museums can operate in the digital environment. These include the introduction of a new exception for Text and Data mining, updates to the exception for the preservation and research and private copy exceptions and the ambition to make ‘it easier to digitise out-of-commerce works and make them available‘.
As we have argued here before, Europe’s cultural heritage institutions deserve copyright rules that allow them to fully embrace the opportunities offered by the digital environment. And as we have noted before we are not alone with this opinion. Both the European Parliament (in the form of the Reda report) and prominent cultural heritage institutions from across Europe (in this open letter) have made the point the Libraries, Museums and Archives should benefit from exceptions and limitations that also apply online.
While it is unclear at this point how the commission intends to make good on its announcements from December there is some legitimate concern that heeding to pressure from publishers and other rightsholders the Commission will propose only minimal updates to the existing system and instead suggest ‘solutions’ based on (extended collective) licensing.
In this situation LIBER, IFLA, EBLIDA, Europeana and Libraries2020 have joined forces and have issued a joint statement with a list of recommendations to adapt Exceptions to Digital and Cross-border Environments. In addition to arguing for updated exceptions the five organisations also point out that currently the rights granted by exceptions and limitations are routinely overridden by contracts and/or technical measures:
The library and broader cultural heritage community supports a balanced copyright framework that not only recognises citizens’ right to information, but also respects authors’ rights to fair remuneration for their work. However, libraries and audio-visual collections in particular are witnessing first-hand how fragmented implementation of exceptions under EU copyright legislation is an increasing barrier to cross-border access to content, preventing progress in particular for students and pan-European research projects. To compound this, in all but four European Member States (Belgium, Ireland, Portugal and the United Kingdom), contract terms can override existing copyright exceptions, which further undermines the goal of a coherent European copyright framework. […]
While the European Commission is still busy determining what changes to propose to the EU copyright framework this fall, some stakeholders have decided that instead of waiting for an update of the EU copyright rules (that is at least four years away), they are better of attempting to expand the existing rules. Last year the Dutch Association of Public Libraries (VOB) started a legal procedure against the Dutch organization tasked with distributing to authors the remuneration that libraries pay for lending out books (Stichting Leenrecht).
In addition to paper books, the VOB wants to lend out e-books, but is concerned that the EU directive on the rental and lending rights of books does not cover digital lending. Instead of waiting for an update to the directive, the VOB decided to go to court to clarify the issue. The Dutch Court subsequently referred the case to the the Court of Justice of the European Union (CJEU) and asked it to answer the question if digital lending is covered by the Rental and Lending Rights Directive.
While the court’s decisions in the VOB vs Leenrecht case is not expected until late this year, Advocate General (AG) Maciej Szpunar delivered his opinion last Thursday. In its opinion AG Szpunar advises the CJEU to rule that art 1(1) of the Rental and Lending Rights Directive must be interpreted to include the right to lend electronic books included in a library’s own collection. While AG opinions generally offer a good indication of how the Court will decide, they have no direct effect and it is important to remember that the court can also come to a different conclusion than the AG. This of course is exactly the outcome that the VOB had hoped for and as such this AG opinion represents an important step in the fight of libraries to be allowed to adopt their activities to the digital environment. Continue reading
The European Commission’s public consultation on a neighbouring right for publishers and on the freedom of panorama closed on Wednesday. While the Commission has yet to publish the results of the consultation, Copyright 4 Creativity and Save the Link – who have both been providing tools that encouraged internet users to respond to the consultation – have published data on the responses that they have forwarded to the Commission.
The 2819 responses collected by Copyright 4 Creativity show a very clear picture. According to C4C, 96% of the respondents indicated that the introduction of new rights for publishers (either in the form of an ancillary copyright for press publishers or of a generic neighbouring right for all publishers) would have a strong negative impact on publishers, authors and other rightsholders, educators, researchers, online service providers and end users. This is a pretty resounding NO! to the misguided notion that the problems of the publishing sector can be solved by creating rights out of thin air.
Open Media, the organisation behind the Save the Link campaign, gathered more than 35.000 signatories (including 9937 from the EU) supporting the following statement:
a new ‘neighbouring right’ limited to [press] publishers and the creation of a new neighbouring right covering publishers in all sectors, will each have a strong negative impact on consumers, end-users, and EU citizens.
Now both C4C and Save the Link have both targeted internet users who are critical of an expansion of copyrights. It is therefore not really surprising that that these number show strong opposition to the introduction of new rights that provide publishers and other rights holders with more control over the internet. However, it is relatively hard to imagine that the other responses that the commission has received will change the overall picture of strong opposition to the idea of a neighbouring right for publishers.Continue reading
Yesterday the European Commission unveiled five more elements of its Digital Single Market Strategy. These consist of new e-commerce rules (including a legislative proposal to address unjustified geoblocking), updates to the EU audiovisual rules and ‘a targeted approach to online platforms‘. From the copyright perspective the geoblocking proposal and the communication on online platforms are most interesting.
Geoblocking for online content is now officially justified
While it is not a surprise it is still disappointing that the Commission has given in to pressure from rightsholders and now considers geo-blocking of online content ‘justified’. At least that is the message it is sending out with the legislative proposal that applies to all electronically supplied services except ‘services the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter‘. It takes a lot of guts to sell such a proposal as an element of a digital single market strategy as it effectively reinforces the territoriality of the digital market place for content in the EU.
This failure of the Commission to deliver on the core of its promise to create a digital single market has caused Julia Reda to launch a new campaign website that aims to stop all forms of geoblocking once and for all (we encourage you to go there and register your disappointment with the path the Commission has taken). Geoblocking of content is one of the most irritating barriers when it comes to access culture online and seriously undermines the legitimacy of the copyright system as a whole.
Intermediary liability regime remains unchanged
The most interesting part of yesterday’s announcements concern the Commission’s plans for regulating online platforms. With regards to that the Commission published both its communication on Online Platforms and the Digital Single Market and its analysis of the earlier consultation on on that matter. In the past we had expressed concerns that the Commission might consider changes to the intermediary liability regime established by the e-commerce directive which could have far reaching negative consequences. Continue reading
Last month the US Supreme Court refused to hear an appeal from US authors who attempted to overturn a prior decision that Google’s scanning of millions in copyright books amounted to “fair use”. This refusal marks the end of a decade long legal fight about the Google books project. This means that in the US Google is free to scan and index in copyright protected books, in order to allow internet users to search the contents of the books.
The fact that Google is allowed to do this has received much criticism, not only from authors in the US but also from rights holders and media in Europe. Much of this criticism has been directed to the fact that the ruling allows a commercial entity to provide access to the full corpus of literature published in the US, but misses a much more important point.
As Ellen Euler, the Deputy Managing Director for Finance, Law, Communication of the Deutsche Digitale Bibliothek points out in her guest contribution below, this means that internet users in the US have access to a much broader body of knowledge and culture than the internet users in the EU. According to Euler we should not see Google Books as a threat to culture but rather as a reminder that Europe urgently needs to create a legal framework that enables access to the collections of our libraries, archives and museums, preferably by allowing them to make their collections available via their own online platforms.
Looking beyond Google for online access to EU culture and knowledge
by Ellen Euler
In the the digital and networked 21st century, cultural heritage institutions have an extended mandate: they must not only provide local access to culture and knowledge, but are also expected to make their collections available via the internet. As we spend an increasing amount of our time online, expect to be able to view and enjoy the the rich collections of our libraries, museums, and archives. And it’s important to provide online access to enable the discovery and innovative reuse of our shared cultural commons. As Tim Berners-Lee, one of the inventors of the web, sums up: “What’s not on the Net, is not in the world”.
When we digitize content from cultural heritage institutions, we begin the process of opening those materials to the world. As Armand Marie Leroi, a humanist and professor of evolutionary biology once said, “digitisation transforms them from caterpillars into butterflies”. Digitized texts allow us to pose entirely new questions and acquire new knowledge based on full-text searches and via other analytical tools and methods. This type of information mining is no longer restricted only to texts. Image recognition tools, combined with standardised metadata and geographical data, make it possible to interrogate other types of content too. We can use new quantitative research methods to test hypotheses and create linkages between bodies of knowledge. We can create virtual research environments to enable the contextualisation of collections within a broader framework.Continue reading