Open Letter on the Commission’s flawed Online Platform Consultation

A woman shouting into a man's ear-trumpet. Wood engraving.
Consulting without listening?

Last week we have pointed out our concerns about a number of copyright related questions buried deep inside the EU commission’s ongoing consultation on the ‘Regulatory environment for platforms, online intermediaries, data and cloud computing and the collaborative economy‘. Our main points were that the consultation does not adequately address the effects of regulatory measures aimed at platforms on EU citizens and that the consultation is designed in such a way that it discourages end users from participating.

Today we have relayed these concerns in letters to First Vice President of the European Commission Frans Timmermans (who is in charge of the better regulation agenda) and Members of the European Parliament. These letters are supported by 29 organisations representing civil society, news publishers, consumers and the digital industry share their concerns regarding the European Commission’s approach in consulting on copyright matters. The letter makes it clear that we are not the only ones who consider the online platforms consultation to be flawed:

The Commission’s “Online Platforms consultation” includes some questions on copyright, which had not previously been the subject of consultation. However, critical questions dealing with the creation of new, controversial copyrights for publishers are only open to right holders to answer, denying European citizens and relevant stakeholders the right to be heard. Further, the Commission is set to adopt a Communication on Copyright on 9th December, which covers these issues, before the end of the consultation and a proper analysis of the contributions received. Continue reading

EU consultation on online platforms – your voice counts!

Vrouw met spreektrompet
Don't mess with the right to link!

As part of its effort to build a digital single market and to modernise the European Copyright rules the European Commision is currently running an online consultation on the ‘Regulatory environment for platforms, online intermediaries, data and cloud computing and the collaborative economy‘. As the name suggests this consultation bundles an enormous amount of issues into a single consultation. This monster consultation consisting of at least 115 questions depending on which type of user you are, hides a number of questions that can have huge impact on the shape of the future EU copyright framework and determine how we share and collaborate online.

These questions relate to the regulatory framework for online platforms, a term that is defined so broadly by the consultation that covers wide swaths of the Internet:

“Online platform” refers to an undertaking operating in two (or multi)-sided markets, which uses the Internet to enable interactions between two or more distinct but interdependent groups of users so as to generate value for at least one of the groups.

In other words, the Commission asks questions about platforms and services like SoundCloud, Wikipedia, YouTube, Flickr, Facebook, Snapchat, Instagram, Twitter and many others, that have become central in how European citizens communicate with each other and express themselves. Changing the regulatory framework that applies to these platforms will have far reaching consequences for all of us. In this light it is very disturbing that these questions are hidden in a consultation that appears to be designed to discourage responses from citizens. Continue reading

Leaked copyright communication: A more modern copyright framework for Europe?

Routekaart voor de beroemde plekken in Ise
Copyright quo vadis?

On Tuesday the European Commission published a roadmap outlining the next steps in their effort to modernize the EU copyright rules. The (not entirely unexpected) main takeaway from this roadmap is that the Commission is retreating from its earlier announcement that it will present a comprehensive legislative proposal for copyright modernisation before the end of 2015.

Instead the Commission will address the modernisation of copyright via a series of interventions, starting in December with a “Communication on copyright which will provide a comprehensive overview of the main issues to be tackled in order to ensure the proper functioning of the copyright marketplace, in particular in the online environment and in a cross-border context”. This communication will come together with two legislative proposals, the first dealing with the (long overdue) implementation of the Marrakesh Treaty, and the other about cross-border portability of content. In a second phase – currently promised for ‘Spring 2016’ – the Commission plans to present additional measures, including legislative updates of the InfoSoc directive.

Announcements about announcements

The rest of the roadmap consists of a fairly unstructured discussion of what might possibly be contained in the December consultation, and an extensive description of the available evidence, including the highly contentious outcomes of the 2013/2014 copyright consultation and the ongoing consultations on online platforms and the SatCab directive. But at its core the roadmap does not constitute much more than an announcement of the December communication, which in turn will be an announcement of legislative and non-legislative interventions.

Fortunately, we can ignore the rather vague roadmap and jump straight to a leaked draft of the actual communication published on Thursday by the IPkat. The draft appears to be fairly recent and is scheduled to be adopted by the Commission on the 9th of December. It is also a much more coherent document that provides us with a relatively clear overview of the Commission’s ideas of how ‘a modern, more European copyright framework’ should look. Continue reading

Directors of major European cultural heritage institutions demand copyright reform

Keizerlijke bibliotheek en rariteitenkabinet
Online access to cultural heritage now!

Today, Europeana published an open letter to Commissioner Oettinger in which the directors of 29 major European cultural heritage institutions demand a reform of the European copyright rules that would allow their institutions to make more of their collections available online. This letter comes in response to the Commission’s intention to review parts of the existing copyright rules to make sure that copyright functions within the Digital Single Market.

In their letter (which can be signed by additional institutions here), the directors argue that their institutions are hindered by the fact that the existing exceptions and limitations benefitting their organisations have not evolved to reflect the ways that citizens access and engage with cultural content:

Europe’s public cultural heritage institutions are key to influencing and shaping our lives with unrivalled access to information, culture and our shared history. They promote knowledge, education, research and encourage the creation of new culture.

Ways to share and engage with cultural content have been transformed in a digital age, but limitations in current European copyright rules restrict that full potential. As a result, our institutions contain large collections established and cared for using public funds but they cannot be made easily available to the public online.

Continue reading

More evidence from Germany: ancillary copyright still not working

Interieur met een vrouw die de krant leest
More band news for proponents of ancillary copyright

Over the last month the German publishers who are pushing for ancillary copyright for press publishers on the EU level have encountered two more setbacks in their attempts to turn the ancillary rights that they have in Germany into actual revenue.

Freedom to link upheld

First the Bundeskartellamt (the German competition authority) rejected claims made by the publishers that Google has acted in violation of competition rules by removing from its search results text snippets from publishers who have not granted them a royalty-free license. Google had started removing such snippets after the introduction of the ancillary copyright for press publishers to avoid having to pay for displaying the snippets. As a result, the publishers soon discovered that not having their stories findable via Google News cost them substantial amounts of visitors—and thus revenue. Because of this realization, the majority of publishers grant royalty-free licenses to Google to ensure that their content is included in Google News.

In their complaint to the Bundeskartellamt the publishers argued that Google was abusing its dominant position in the search and news aggregation markets if it would not display the snippets unless it was granted a royalty-free license. The Bundeskartellamt flat-out rejected this argument, stating that if an online service does not want to acquire a license for the display of snippets—and hence only display search results without a snipped portion of the underlying text—it is perfectly free to do so. According to the competition authority there is nothing in antitrust law that prevents companies from doing this, even if they hold the dominant market position. Continue reading

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

Het zieke kind
Ancillary copyright: a cure worse than the disease

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

The County Election
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. Continue reading

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

Towards a digital single market?

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. Continue reading