The proposed publishers right is an attack on the public domain

Adreskaart voor boekhandel Scheltema en Holkema
Save the public domain from the publishers right
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Traditionally, at the beginning of the new year we celebrated what is known as Public Domain Day: on the first of January of any given year the works of authors who have been dead for more than 70 years enter the public domain. As this is a decisive year for copyright reform in the European Union, it seems much more important to highlight the dangers for the public domain that we are facing in the context of the copyright reform process (you can refer to Wikipedia and the Public Domain Review for overviews of works that have entered the public domain this year).

While copyright reform generally has a positive connotation, it is important to realise that a reform does not mean that things will change for the better. As we have pointed out before, the copyright reform package presented by the Commission is extremely one-sided. And both the attempt to introduce a new right for press publishers, and the requirements for online platforms to filter user uploads, have the potential to cause a lot of damage to the public domain and the ability of users to access information and express themselves online.

Shrinking the public domain

When it comes to the public domain the proposal to introduce a new right for press publishers contained in article 11 of the Commission’s proposal is the most dangerous, as it has the potential to shrink the public domain. Our 2010 Public Domain Manifesto defines the public domain as being

… comprised of our shared knowledge, culture and resources that can be used without copyright restrictions by virtue of current law.

This definition implies that the scope of the public domain can change in response to changes of the legal environment. The most obvious would be changes to the duration of copyright protection. Lengthening the term of protection would shrink the public domain while shortening the term would grow the public domain (as we argue for in our policy recommendation #1). Continue reading

Cultural Heritage Institutions: Commission’s Copyright Proposal fails to address our needs

Adreskaart voor boekhandel Scheltema en Holkema
Unlock Europe's cultural heritage now!
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Last week a number of Europeana organisations representing libraries and other cultural heritage organizations released a joint response to the Commission’s copyright proposals. The paper, issued by LIBER, EBLIDA, IFLA, Public Libraries 2020 and Europeana, deals with those elements of the EU copyright framework that are directly relevant to cultural heritage institutions.

This includes four issues addressed in the Commission’s Proposal for a Directive on Copyright in the Digital Single Market (the exceptions for Text and Data Mining, Education, and Preservation copies, and the measures aimed at improving access to out-of-commerce works), and a number of issues that the Commission’s proposal fails to address, such as on-site access to collections and online document supply.

Exceptions are too narrow

The paper underlines that from the perspective of cultural heritage institutions, EU copyright reform needs to focus on updating and harmonizing copyright exceptions:

We believe that overall welfare is best served by a robust and mandatory set of copyright exceptions which facilitate access to knowledge.

Given this general approach it is not surprising the cultural heritage institutions share many of the same concerns we raised in our analysis of the Commission’s proposal. Continue reading

As the European Parliament starts discussing copyright proposal, rightsholders point out they want even worse © rules

Johan de Witt 's nachts op straat aangevallen
Copyright reform: the right to link under attack
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Earlier this week the JURI committee of the EP held the first hearing on the proposed Copyright in the Digital Single Market directive. This hearing officially kicks off the process through which the European Parliament will develop its position on the Commission’s proposal. The parliamentary process is shepherded by MEP Therese Comodini Cachia (EPP, Malta). According to a preliminary timeline published by her, the process will be completed before next year’s summer break.

Wednesday’s hearing (recording) focussed on one of the most controversial issues of proposed Directive, the measures for filtering and blocking user uploaded content contained in article 13. These are supposed to address a so-called “value gap” caused by online platforms that allow users to share content online. The Commission has bought into the rightsholders narrative, although evidence why these measures are necessary is still lacking.

The wrong answer to online creativity: privatised censorship and filtering

As our friends at EDRi have pointed out in painstaking detail, such an obligation to monitor and filter is at odds with other EU laws and with jurisprudence from the Court of Justice of the EU, and would negatively impact the freedom of expression online. Continue reading

CJEU ruling in Doke & Soulier case emphasizes the need for a real solution to the out-of-commerce problem

Strafpleiters
Universal access to out of commerce works now!
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Last week the CJEU handed down another judgement dealing with digital activities of libraries (see our take on the e-lending decision from 2 weeks ago here). In its judgement in the Doke & Soulier case (C 301/15) the court ruled that the French law on out-of-print books, which allows French publishers to publish digital editions of out-of-print books, violates the exclusive rights of authors as established by the InfoSoc directive. This means that the French scheme for making out-of-print books available (reLire) will either need to be modified or scrapped.

The judgement does not come entirely unexpected as it is largely in line with the Advocate General opinion from earlier this year. As we have already noted in our analysis of the AG opinion, the case has the potential to undermine Extended Collective Licensing (ECL), which is currently held as the solution for the issue of out-of-commerce works.

At this point it is unclear how the Doke & Soulier judgement relates to the EU Commission’s proposal for dealing with out-of-commerce works in the collections of cultural heritage institutions—currently a part of the proposal for a Copyright in the Digital Single Market directive. Regardless, the judgement  casts a shadow of doubt over ECL arrangements such as the one at the center of the Commission’s proposal. This is mainly due to the fact that through this decision the court has established stringent criteria that national measures would need to fulfil. The fact that according to the court “every author must actually be informed of the future use of his work by a third party and the means at his disposal to prohibit it if he so wishes” (para 38) seems to contradict the very purpose of Extended Collective Licensing arrangements, which is to circumvent the need to clear rights on a per-work (or per-rightsholder) basis.

Can ECL still provide a solution for out-of-commerce works?

Looking at the reasoning of the court, it becomes evident that the judgement is not so much concerned with the operation of of ECL as a legal mechanism, but rather with the question of whether EU member states can limit the ability of authors to exercise their exclusive rights in ways other than those foreseen by the EU legislator. The court answers this with a resounding “no” and then goes on to examine whether the French system respects the ability of authors to object to the use of their out-of-print works. The court comes to the conclusion that it does not, because authors are neither individually informed about future uses of their works, and because their ability to opt out of such uses is limited. In summary, the court does not declare ECL in general incompatible with the InfoSoc directive, but has ruled, that the French ECL implementation does not sufficiently respect the authors’ exclusive rights. Continue reading

CJEU on e-lending: The right to lend books includes the right to lend electronic books.

Keizerlijke bibliotheek en rariteitenkabinet
The right to lend is the right to lend!
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Yesterday the Court of Justice of the European Union delivered good news in a case that that eagerly watched by Librarians across the Europeana Union. In its judgement in the case VOB vs Stichting Leenrecht (C-174/15 – press release here) the court ruled that rental right and lending right directive also covers e-lending. This is good news for libraries and their users as this means that (within certain limits) libraries can lend out e-books on the same legal basis as they lend out paper books. Prior to this judgement it was generally assumed that e-lending was not included in the scope of the rental right and lending right directive and as a result public libraries wishing to lend out e-books had to conclude licenses with publishers in order to do so.

Yesterday’s judgement came out of a reference to the CJEU in the context of proceedings brought by the Association of Dutch Public Libraries (VOB) which held the view that libraries are entitled to lend e-books included in their collections according to the principle “one copy one user”. This view was not shared by the Dutch government which has passed legislation based on the premises that the digital lending of electronic books does not come within the scope of the exception provided by the rental right and lending right directive.

The VOB wants libraries to allow users to download an electronic copy of a work included in the collection of a library while ensuring that  – as long as that user can access that copy – it is not possible for other library users to download another copy. At the end of the e-lending period, the copy downloaded by the first user would become inaccessible, and as a result another lender can download a separate copy. Continue reading

Europeans deserve a better copyright reform

Caïn venant de tuer son frère Abel, by Henry Vidal
This is not how you #fixcopyright
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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

CJEU ruling on hyperlinking shows publishers hypocrisy

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.

Copyright Reform: European Commission does the rightsholders’ bidding

Odysseus en de sirenen
EU copyright reform hijacked by rightsholders
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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

EU Commission: Yes, we will create new ancillary copyright for news publishers, but please stop calling it a “link tax”

Spotprent op de uitgever Jobard te Brussel
No to a failed german-style ancillary copyright for the EU!
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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.

Ansip: 'Commission has no plans to introduce a link tax'

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

Advocate General Wathelet: Extended Collective Licensing is NOT the answer for mass digitisation!

Keizerlijke bibliotheek en rariteitenkabinet
Enable access to digitized cultural heritage now!
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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