Research confirms: new Spanish ancillary copyright is actually good for no one

It is generally accepted wisdom that if you do not want something to be noticed you can best announce it on a Friday afternoon. Presenting a study right before the start of the summer holidays is a variation of this. Seen in this light, it is a bit unfortunate that the Spanish Association of Publishers of Periodical Publications (AEEPP) decided to release a study on the impact of the Spanish ancillary copyright on the 9th of July when half of Europe was already in (pre)vacation mode (which is why we are covering the study 3 months after its release—for your post vacation enjoyment).


Spain’s ancillary copyright law came into effect on January 1, 2015,  after extensive lobbying by the Association of Publishers of Spanish Newspapers and in spite of opposition from other industry players and civil society groups (including us) who were concerned that the new rights would have a negative impact on media diversity and the ability to access news and other information. As a first casualty of the new, unwaivable right, Google closed its Google News service in Spain.

The new study, which was commissioned by the AEEPP and carried out by NERA consulting, confirms most of the concerns raised by opponents of the ancillary right. Based on comScore data for the first 3 months of 2015 the study finds that the closing of Google News (and a number of smaller news aggregation services) that followed the introduction of the new law has led to a (predictable) decline of internet traffic directed at Spanish newspapers: Traffic to newspaper sites has dropped more than 6% on average and 14% for small publications. Continue reading

European Parliament adopts Reda report, fails to demand real copyright reform

Yesterday the European Parliament approved MEP Julia Reda’s evaluation report of the copyright directive. With the report the European Parliament gives a clear signal that the European Copyright rules need to be modernised. This puts the ball in the court of the Commission, which needs to come up with concrete legislative proposals for a copyright reform – which it promised to deliver before the end of the year. Both Commissioners Oettinger and Ansip have reacted positively to the Report, while its author, Pirate Party MEP has expressed the hope that the Commission’s proposal will be more ambitious than the EPs report, which has been watered down considerably through a large number of amendments.

So while the report is a clear signal that MEPs want to see a modernisation of the EU copyright rules that date back to 2001, it is much less clear what shape these modernised rules should take. Most of the report is based on compromises that MEP Reda has brokered between all major political groups represented in the EP. As a result, the report does not outline a clear plan for reforming copyright. Still, it is possible to distill from it a number of things that MEPs clearly both want and don’t want to see in the reform proposal. It is also clear that pressure from civil society – related to such issues as Freedom of of Panorama, hyperlinking or ancillary copyright, helped avert worst amendments to the report.

MEPs do not want to see further limitations of user rights.

Attempts have  been made to include language that would limit the rights of end users. Fortunately all of these attempts failed. The majority of MEPs is clearly unwilling to further limit the ability of citizens and other users to interact with copyright protected material. Continue reading

European Parliament must not open the door to ancillary copyright for press publishers

Tomorrow the European Parliament will vote on the Reda report on the implementation of the 2001 copyright directive, which has been approved by the legal affairs committee on the 16th of June. One of the most contentious issues during the vote in the legal affairs committee was an amendment by proposed by the German EPP MEP Angelika Niebler that would have encouraged the Commission to introduce an new ancillary copyright for press publishers on the EU level.

In a last minute departure from the already agreed on compromises, both EPP and ALDE insisted that this amendment should be voted on separately, clearly hoping that this manoeuvre would somehow succeed in getting the desired language into the text of the report. Unfortunately for the proponents of the ancillary copyright, this move backfired and the legal affairs committee voted the amendment down with a relatively clear majority.

Quality journalism or ancillary copyright?

A couple of days ago it emerged that the proponents of the ancillary copyright for press publishers have mounted another last minute attempt, this time attempting to insert language calling for the introduction of an EU-wide ancillary copyright for press publishers into the report via another amendment tabled by MEP Niebler. This amendment will be voted on during the plenary vote on Thursday. The amendment proposes to add a new paragraph (57a) to the report:

Calls on the Commission to evaluate and come forward with a proposal on how quality journalism can be preserved also in the digital age in order to guarantee media pluralism, in particular taking into account the important role journalists, authors and media providers such as press publishers play with regard thereto.

While the text of the amendment does not explicitly talk about an ancillary copyright for press publishers, it is clear that this language is intended to give the Commission an excuse to come forward with a proposal that would introduce such a right. Continue reading

Reda report: the good, the not-so-bad and the ugly compromise amendments

vote for the public domain

Back in April we published our list of the 10 worst and the 5 best amendments to Julia Reda’s draft report on the implementation of the InfoSoc Directive. Tomorrow the Legal Affairs committee (JURI) of the European Parliament will vote on these amendments to the draft report. In light of the upcoming vote and given that Julia Reda has just published the final voting list – including the compromise amendments – it is time for one last round of analysis.

As the name implies, compromise amendments are amendments the different political groups have agreed on as replacements of sets of (often contradictory) amendments related to a specific section of the draft report. Given that they reflect a partial consensus among some of the political groups, they are relatively likely to be adopted. If a compromise amendment (AMC) is adopted, the individual amendments that they replace are automatically rejected. If a CAM is rejected then all original amendments will be voted on individually.

In the following we are taking a quick look at the compromise amendments that deal with the issues we’ve previously highlighted. If you haven’t done so already, you may want to read our initial analysis first.

The Good

Three of our five best amendments have found their way into compromise amendments: AM 264 – which clarifies that what is in the public domain must stay in the public domain (in line with our policy recommendation #5 and with the Europeana Public Domain Charter) – has been subsumed into AMC 6, making it much more likely to be adopted. Having this compromise amendment adopted would be a significant win for the public domain. Continue reading

EU Digital Single Market strategy: a starting point for copyright reform


Today the European Commission presented an ambitious package of reform proposals known as the Digital Single Market (DSM) Strategy for Europe. Among other topics like ‘Affordable high quality parcel delivery’ and ‘Building the data economy’ the DSM strategy represents the first concrete announcement of upcoming changes to the European Union’s outdated 2001 Copyright Framework.

As part of the strategy the Commission wants to ensure “better access for consumers and businesses to online goods and services across Europe” which “requires the rapid removal of key differences between the online and offline worlds to break down barriers to cross-border online activity”. While at this point the Commission is far from proposing a general overhaul of the copyright system the DSM strategy contains promising language. It also shows that those in the Commission who are looking for meaningful changes to the European copyright rules (led by Vice President Ansip) have managed to keep the upper hand on their more conservative colleagues (led by Commissioner Oettinger) who so far have mainly been interested in expanding copyright and stepping up enforcement.

In terms of concrete copyright reform the Commission is announcing that it will make “legislative proposals before the end of 2015 to reduce the differences between national copyright regimes and allow for wider online access to works by users across the EU, including through further harmonisation measures”. The Commission’s proposal highlights the following areas that the Commission wants to address “ (i) portability of legally acquired content, (ii) ensuring cross-border access to legally purchased online services while respecting the value of rights in the audiovisual sector, (iii) greater legal certainty for the cross-border use of content for specific purposes (e.g. research, education, text and data mining, etc.) through harmonised exceptions,(iv) clarifying the rules on the activities of intermediaries in relation to copyright-protected content and, in 2016, (v) modernising enforcement of intellectual property rights, focusing on commercial-scale infringements”. Continue reading

Reda report: the 10 worst and the 5 best amendments

In January MEP Julia Reda presented a draft report on the implementation of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (a.k.a the Copyright Directive). This draft report has proven to be hugely controversial and as a result 556 amendments (1,2) have been tabled in the Legal Affairs committee (JURI) alone. A helpful overview of the full parliamentary process can be found over at


While the JURI committee is trying to arrive at compromise amendments ahead of the vote on 6 May we thought that it would be useful to highlight the best and worst amendments that have been tabled in reaction to the report. The main criteria for identifying the best/worst amendments are our 2011 policy recommendations and our recent position paper on the on the review of the EU copyright laws. As the vast majority of the amendments are attempting to reverse the positions expressed in Reda’s draft report, the 15 amendments highlighted below can only offer a glimpse of what is at stake. So while we are recommending to vote against the 10 worst amendments listed below, this is by no means a complete voting list as there are many others which are just as bad (and some that are slightly better).

The ten worst amendments…

#1 We don’t care for the Public Domain

AMs 252-257 Constance Le Grip, József Szájer (2x), Angel Dzhambazki, Sajjad Karim, Axel Voss, Therese Comodini Cachia, Eva Paunova, Pavel Svoboda, Marc Joulaud, Giovanni Toti, Luis de Grandes Pascual, Rosa Estaràs Ferragut, Sabine Verheyen
6. Calls on the Commission to safeguard public domain works, which are by definition not subject to copyright protection and should therefore be able to be used and re-used without technical or contractual barriers; also calls on the Commission to recognise the freedom of rightholders to voluntarily relinquish their rights and dedicate their works to the public domain;

Easily the worst amendment (or rather set of amendments, since there are multiple identical versions of this one) is AM 252 that proposes to delete Paragraph 6 of the draft report.This paragraph calls on the Commission to safeguard the Public Domain and to recognise the freedom of rights holders to voluntarily relinquish their rights and dedicate works to the Public Domain. At least the first part of the original paragraph should be something that every participant in the discussion about the future of the EU copyright rules can agree with, unless there are really people who want to ensure that all culture and information is privately owned. Continue reading

Copyright 4 Creativity releases copyright manifesto

Today Copyright 4 Creativity (C4C), a coalition of 35 organisations from the NGO, library and technology sectors (including a number of COMMUNIA members) is launching a copyright manifesto. The copyright manifesto is intended as a contribution to the ongoing review of the European Union’s copyright rules. With the manifesto, Copyright 4 Creativity wants to stress the importance of a copyright system that can ‘effectively promote innovation, access and creativity’.

The manifesto starts by outlining what is wrong with the current EU copyright framework and how this is negatively affecting users, businesses, innovators and – as a result – the competitiveness of Europe’s economy. In doing so, the manifesto touches on many concerns shared by COMMUNIA, including the fact that the current term of copyright protection is much too long and undermines access to knowledge and culture.

Based on the analysis of the status quo the manifesto calls for a substantial reform of the copyright rules in the EU and argues that such a reform needs to address 4 main issues. According to C4C the EU needs to: Continue reading

Leading copyright scholars: full unification of EU copyright now!

As part of the public consultation on a review of the EU copyright rules the EU commission included two questions related to a single EU copyright title. These questions refer to the fact that in the current situation all member states of the EU have their own copyright laws. These laws need to meet the requirements established by an increasing number of EU directives (such as the InfoSoc directive, the Copyright term directive, and the orphan work directive). This has resulted in a certain level of harmonization, but this does not take away the fact that in the EU the a copyrighted work is protected by 28 different copyright laws that apply to 28 different jurisdictions.

Compared to this situation a single European title would mean having one single EU copyright law that confers EU-wide rights to rights holders and establishes EU-wide exceptions and limitations. In our answer to the public consultation we urged the EU commission to start working on a single European copyright title:

Question 78: Should the EU pursue the establishment of a single EU Copyright Title, as a means of establishing a consistent framework for rights and exceptions to copyright across the EU, as well as a single framework for enforcement?

The establishment of a single EU Copyright Title would be a positive step forward for both rightholders and users of copyrighted content. It would help to harmonize the currently disjointed limitations and exceptions and copyright duration schemes across the EU.

Question 79: Should this be the next step in the development of copyright in the EU? Does the current level of difference among the Member State legislation mean that this is a longer term project?

Pursuing the establishment of a single EU Copyright Title should be the next step. Work on this should begin immediately.

One of the other organisations that also advocated taking steps towards a single EU copyright title is the European Copyright Society (ECS). In its response the ECS (which is made up of leading European copyright scholars and academics) argued for for the introduction of Union-wide copyright title and for the simultaneous abolishment of national copyright titles.

Just before the holidays the European Copyright Society reaffirmed this position by sending a letter to Commissioner Oettinger in which it once again advocates for a unification of EU copyright law. In their letter the members of the society briefly affirm the need to modernize the existing EU copyright rules (dryly noting that they “trust that [the European Copyright] Society’s opinions will be taken into account”) before they urge the Commissioner to go a step further: Continue reading

Europe’s cultural heritage institutions deserve better

For those of us looking forward to copyright rules that enable European cultural heritage institutions to provide online access to their collections, two important things happened last week: on Wednesday 29th October, the Orphan Works directive (OW directive) came into force and on Saturday 1st November, the new European Commission headed by Jean-Claude Juncker assumed office.

The first event marks the failure of the existing system, while the second one is reason to give us hope for a more meaningful modernisation of the European copyright system.

The fact that the current system does not take into account the needs of cultural heritage institutions is painfully illustrated by the Orphan Works directive. After years of legislative wrangling, Europe came up with a ‘solution’ for the problem of orphan works that requires cultural heritage institutions wanting to make orphan works available to undertake complicated searches for rights holders, before they are allowed to publish them. In most cases, the resources required for such searches are completely out of balance with the cultural and economic value of the work. This means that the Orphan Works directive may be a useful tool for making small numbers of high profile works available, but not as an enabler of mass digitisation projects.

The fact that the OW directive ended up as a crippled tool that fails to address the problem it was designed to answer (enabling mass digitisation of collections), is the result of a number factors: strong pressure from rights holders and their representatives to preserve the underlying principles of copyright even in a situation where they do more good than harm; the lack of coordinated advocacy efforts from cultural heritage institutions at the European Level; and a weak European Commission that was split on copyright.

With regards to the last point there is reason to hope that the situation is changing. The Juncker Commission that came into office on the first of November has made the modernisation of copyright one of its top priorities. In his mission letters to the Commissioners in charge of a connected Digital Single Market, Juncker made it clear that he expects his team to come up with ‘ambitious legislative steps’ towards ‘modernising copyright rules in the light of the ongoing digital revolution’ within the next six months.

In other words, the time to start fighting for copyright rules that enable cultural heritage institutions to properly function online is now! Continue reading

New policy paper on the re-use of public sector information in cultural heritage institutions

In 2013 the European Union enacted Directive 2013/37/EU amending Directive 2003/98/EC on the re-use of public sector information (PSI). The 2013 directive is an important pillar of the European Union’s open data strategy. It establishes the general principle that public sector bodies’ available information shall be reusable in accordance with a number of conditions, such as open formats, terms and conditions. Member States are asked to transpose the new rules into domestic law by 18 July 2015, i.e. about nine months from now. One of the major new features of the PSI directive is the inclusion in its scope of libraries (including university libraries), museums and archives. However, if Member States are not careful, the implementation of the changes required by the new directive could do more harm than good to cultural heritage institutions.

The directive attempts for the first time to define a general framework for sharing cultural heritage information all around Europe. Under the amended directive, libraries, museums and archives are now asked to make parts of their collections available for reuse. In particular, documents in the Public Domain (either because never protected or because the protection expired) are under the general re-use rule of Art. 3(1), while documents in which libraries, museums and archives hold intellectual property rights are under the derogatory rule of Art. 3(2): only when institutions allow re-use are they under the obligation to ensure that the general re-use conditions are respected. Accordingly, the re-use requirements of the directive only apply to works that are not covered by third-party intellectual property rights.

While laudable in principle, the inclusion of cultural heritage institutions in the scope of the directive raises a number of questions related to how Member States should implement the new PSI directive. If Member States are not careful, the implementation of the changes required by the new directive could do more harm than good to cultural heritage institutions. In order for the directive to meet its overall objective, i.e. to contribute to opening up the resources held by Europe’s cultural heritage institutions, three main recommendations for member states can be formulated:

  1. Member States should implement the Directive in line with the principles established by Article 3 and ensure that all documents that are not currently covered by third party intellectual property rights fall within the scope of the Directive.
  2. Member States must not implement the Directive in such a way that encourages or requires institutions to charge for the reuse of works that they make available for reuse. The decision to charge for reuse must be up to the individual institutions. If this is not the case the Directive will limit access and reuse of the public domain.
  3. For documents that are still protected by intellectual property rights but where these rights are held by the cultural heritage institutions, Member States should encourage the use of Open Definition-compliant licenses, such as the Creative Commons licenses or the Creative Commons Zero mechanism. This applies in particular to metadata produced by cultural heritage institutions, in the limited cases where these metadata can attract copyright (such as long form descriptions of cultural heritage objects).

For a deeper analysis of these issues see the full policy paper on the re-use of public sector information in cultural heritage institutions.