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
The Commission’s public consultation on the role of publishers in the copyright value chain and on the ‘panorama exception’ is addressed at a broad range of stakeholders, which includes both ‘Libraries/Cultural heritage institutions’ and ‘Educational or research institutions’. In this second post of our series on the consultation, we highlight what the introduction of an additional right for publishers would mean for the education and cultural heritage sectors. We encourage organisations and professionals from these sectors to make their views known to the Commission. [If you have not read our introductory post that deals with the more general problems of granting additional rights to publishers you may want to read that first.]
What additional rights for publishers mean for cultural heritage institutions…
Cultural Heritage Institutions struggle with making their collections available online. While large parts of their collections are not commercially available anymore, or were never in commercial circulation to begin with, most materials from the 20th and 21st century are still covered by copyright and neighbouring rights. In order to make their collections available online institutions have to obtain permission from rightsholders to do so (they need to ‘clear the rights’). For out of commerce works this is an extremely time consuming and expensive process. Most institutions cannot afford large scale rights clearance and as a result there are very few works from the 20th century available via the websites of cultural heritage institutions (‘the 20th century black hole‘). Continue reading
The Commission is currently holding a public consultation on the role of publishers in the copyright value chain and on the ‘panorama exception’. Today we’re kicking off a short series of blog posts that will highlight the problematic nature of granting new copyrights for publishers, and why full freedom of panorama should be ensured for everyone in the EU. This post explores why new copyrights for publishers are a bad idea.
A brief history of ancillary copyright in Europe
For a long time, COMMUNIA has been critical of attempts to introduce additional rights for (press) publishers (see here for a collection of previous posts). The adoption of these ancillary rights would permit publishers to monetize the use of small snippets of text by news aggregators, search engines, and possibly others who collect and share links to publishers’ articles (hence the term: link tax). It first showed up in Germany and subsequently found its way into Spanish copyright law. It is well documented that in both cases the introduction of these new rights has failed to achieve the objectives of their proponents.
These failures have not prevented publishers from trying to get such a right created on a European scale. While the idea was not present in the Commission’s Digital Single Market strategy, Commissioner Oettinger made no secret of his sympathy for the idea, and made it clear that it could surface at any moment. Continue reading
Last week Politico published a leaked draft of the Commission’s forthcoming communication on Online Platforms in the Digital Single Market. As the the title suggests, this is another piece of the puzzle in the Commission’s attempt to create a European Digital Single Market. While it does not directly deal with copyright issues, the document discusses important implications for the future of copyright in the EU (and beyond).
According to the Commission, the communication takes into account the input the Commission already received in response to last year’s consultation on the ‘Regulatory environment for platforms, online intermediaries, data and cloud computing and the collaborative economy’. Back in November—when we urged our readers to reply to that consultation—we pointed out that the Commission was:
… considering measures including the introduction of an ancillary copyright for press publishers (link tax), limitations of the right to link and modifications of the liability limitation for hosting providers.
The leaked draft confirms these expectations—at least in part. It contains language that seems to be intended to undermine the existing liability limitations for hosting providers. In addition, it makes thinly-veiled references to an introduction of an ancillary copyright (which of course fits right in with the recently released consultation on such a right).
An attack on intermediary liability is an attack on the open internet.
With regard to copyright, the most interesting part of the communication is the section titled ‘Ensuring that online platforms react responsibly’. In this section, the Commission seems to praise the existing intermediary liability regime:
Although the present Intermediary liability regime, as set out in the e-Commerce directive, was designed at a time when online platforms did not have the scale they have today, it created a regulatory environment that has considerably facilitated their scaling up. This is in part due to the harmonisation of the exemption of all types of online platforms from liability for illegal content and activities that they do not control. The public consultation showed strong support for the existing principles of the e-Commerce directive, but also the need to clarify certain concepts, including the scope of the safe harbour for intermediary liability, including for online platforms. Given this background the commission intends to preserve the existing liability regime.
Unfortunately, the Commission wants to say one thing and do another. About half a page later the the Commission observes that… Continue reading
It is relatively well documented that neither the French nor publishers are big fans of copyright reform. Given this, the comments from the CEO of the French publisher Hachette Livre on at last week’s London Book Fair are not entirely surprising.
Less than three weeks after the European Commission launched a consultation that appears to be designed to create additional copyrights for publishers, Hachette CEO Arnoud Nourry warned his international publishing colleagues that Google is a bigger threat to publishers than Amazon and greatly benefit from what he called “the European Commission’s senseless attack on copyright”. According to a summary of his talk provided by the Bookseller, he then went on to declare that:
… vast exceptions to copyright law for libraries, for education, for fair use” could provide an opening for Google to rebrand itself as a library, opening up its repositories of scanned content for free and profiting from advertising income [and] questioned why the EC was targeting publishers: “It is as if the Commission had made it a priority to weaken the only European cultural industry that has achieved worldwide leadership. Need I remind you that nine of the 12 largest publishing companies in the world are European?”’
To anyone following the relatively tame course the Commission has charted out for reviewing the EU copyright rules, this looks like a relatively ill-informed overreaction by a publisher who seems to be offended that European legislators dare to even think about modernizing EU copyright without asking the publishing industry for permission first. The obsessive focus on Google as an evil outsider intent to destroy culture-as-we-know-it highlights the unease the traditional publishing sector still feels when it comes to all things digital.Continue reading