European Commission fails to ban geoblocking, does not give up on plans to cripple online platforms

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It's not a Digital Single Market if there is geoblocking!
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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

Guestpost: Looking beyond Google for online access to EU culture and knowledge

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Europe needs a fair, legal framework
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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

How additional rights for publishers will hurt education and access to culture

Spotprent op de uitgever Jobard te Brussel
No additional copyrights for publishers!
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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

Ancillary Copyright, Publishers’ Right, Link Tax: a bad idea under any name

Spotprent op de uitgever Jobard te Brussel
No to additional copyrights for publishers!
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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

Online platforms: Commission wants to make the internet more like traditional media

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Reform copyright, don't break the internet!
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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

Contrary to what publishers think, Libraries serve the Public

Adreskaart voor boekhandel Scheltema en Holkema
Have the publishers lost it?
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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

#Stopgeoblocking: Make the internet less broken

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Geoblocking breaks the Digital Single Market
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BEUC, the European Consumers Association, has just launched a campaign against geo blocking. COMMUNIA has been using this term mainly in order to refer to the practice of limiting access to copyright protected content – such as films or music – to specific national markets. This prevents internet users from outside of that market to access the content in question which, in our opinion, is not coherent with the expectations of internet users and the idea of a EU Digital Single Market. However, the problem is not limited to access to works protected by copyright. As illustrated by the campaign video released by BEUC the idea of providing different services to people based on their nationality is fairly ridiculous:

You can find out more about the practice of geo-blocking and why it needs to end as soon as possible in this factsheet (pdf) and in BEUC’s factsheet on the issue. Needless to say we wholeheartedly agree with the analysis provided by BEUC. From the perspective of European internet users, ending these unfair business practices will be one of the key outcomes that the European legislator needs to achieve in order to deliver on the promise of a Digital Single Market.

More ancillary copyright madness: French proposal to tax websites for using image thumbnails to illustrate search results

Boudewijn van Heusden and his Wife Sophia Receiving Homage from the Legate of King Edmund
Open letter against ancillary copyright
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We spend a lot of effort pointing out that additional copyright, like rights for specific groups of rights holders, are a problematic concept that has potential to cause a lot of damage to the Public Domain. Most of our coverage has focused on efforts to establish an ancillary copyright for press publishers. We have seen the introduction of such rights first in Germany and then in Spain in recent years, and in both cases the legislators have failed to reach their objective. Especially in In Spain the newly introduced rights have caused so much collateral damage that the news publishers themselves (who were supposed to be the beneficiary) have come out against the concept of an ancillary copyright.

Part of the argumentation why ancillary copyrights are a bad idea has been the fact that they have the potential to limit the access to information, and thus damage the Public Domain. Trying to boost specific business models by adding more types of rights to an already overly complex copyright system is the wrong answer to the challenges posed by the rise of the internet. New rights do not only affect the rights holders they are intended to help, but have a much wider impact on how we access information and culture.

This point is once more illustrated by a recent attempt in France to establish a new right that would require search engines and indexing services to pay royalties for the use of thumbnail images of copyright protected works. According to French proposal, which has been approved by the French Senate, this new right would be managed by one or more collecting societies, regardless of the intention of the rightholders whether to be financially compensated for the use of their works by search engines.

As with the Spanish ancillary copyright for press publishers, the compulsory collective management of this right means that it would also apply to works that have been made available by their creators under Creative Commons licenses, severely limiting the ability of creators to contribute to the Public Domain. The French proposal would also be very likely to affect online resources such as Wikimedia Commons or Europeana, even though these platforms are based on voluntary sharing of images.

This is why we joined forces with 14 other organisations and expressed concerns in open letters to the French Minister of Culture (en/fr) and the rapporteur of the Assmblée Nationale (en/fr )for the ‘Liberté de la création, de l’architecture et du patrimoine‘ law which contains the proposal. The letters warn that:

The current proposal […] will impact many online services and mobile apps, from search engines to creative commons models and Europeana. Money would be collected arbitrarily and without any realistic way of redistributing it accurately. Basically, every day activities of online users, such as posting, linking, embedding photos online, would be subject to a cloud of legal uncertainty.

It would isolate France in the European Union, at a time when courts across Europe have made clear these were lawful activities under national, European and international laws. It would isolate France globally, as a country where using images online would be subject to restrictive and unworkable practice.

We hope that the French legislator will have the wisdom not to introduce this new right. This would send a strong signal that introducing new exclusive rights in an already too complex European copyright framework is not a suitable instrument to support specific business models in sectors negatively affected by the internet. We are convinced that the answer to the challenges posed by digitisation in certain sectors does not lie in the creation of new rights, but rather in a re-balancing of the existing copyright rules.

The EU wants your perspective on “intellectual Property enforcement”

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Make your voice count
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The European Commission is currently holding a consultation on the 2004 directive on the enforcement of intellectual property rights in the online environment (the so called IPRED directive). As the name suggests, this directive deals with the enforcement of copyright – including issues such as injunctions against internet service providers, internet blocking, and warning letters to individuals accused of unauthorised peer-to-peer filesharing. These issues have been hugely controversial in the past and there is considerable pressure from rights-holders to further expand the way they can enforce rights.

This is of course only one side of the story, as we have seen over and over again how enforcement actions are abused, chill speech, and limit access to information. The consultation is of great importance not only to those interested in copyright, but to anyone using the internet. The consultation covers how private companies should (or not) be involved in law enforcement online – for example by removing content uploaded by a user that includes any copyrighted material.

It also covers the range of internet intermediaries that could or should be subject to legal obligations to undertake law enforcement activities. Imposing extra requirements on internet intermediaries limits them in the types of services that they can offer to users, and can make it more difficult for non-professional creators to find an audience for their creations and/or opinions.

It is important that the Commission hears from as many internet users and creators as possible. The consultation consists of 5 different lists of questions for different types of respondents. Our friends at EDRi have built an online tool for answering the Commission’s questions. EDRi also provides guidance and advice for potential responses from particular audiences, including citizens, consumers, and civil society organisations.

If you regularly create content that you share online (such as photos, videos, and writing) you can also consider answering the question aimed at rightsholders: it’s crucial to show the Commission that copyright (enforcement) rules cannot be based solely on the entrenched “needs” of large commercial rights holders. Instead, the rules must reflect the reality where countless numbers of internet users create (and wish to share) copyright-protected works on a regular basis.

You have until the 7th of April to submit your responses via the EDRi answering tool.

Public Domain day 2016 at the European Parliament

Public Domain Day 2016
Celebrating the Public Domain in the European Parliament
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On Monday the 25th of January COMMUNIA organized a Public Domain Day celebration at the European Parliament. The event, which focussed on showcasing creators who have chosen to donate their output to the public domain, was hosted by MEP Julia Reda.

The following creators participated in the event and shared their experiences as input at the lunch table discussions: Kenney Vleugels, who makes game assets available to other game developers  under the the CC0 public domain dedication, Alastair Parvin of WikiHouse.cc, who is developing an open source approach to sustainable housing, Femke Snelting of Constant, who is publishing Public domain magazines, Eric Schrijver, who is writing a sharing guide for artists, and Thomas Lommee from Open Structures, a  standardised open design system. The lunch discussions focused on the artistic and design practices of these creators and the challenges they run into. A recurring theme was the legal uncertainty created by overly complex copyright laws, and the excessive length of copyright protection.

The Public Domain is traditionally seen as a body of old works that went out of copyright. Public Domain Day celebrates this very moment, when the period of copyright protection ends for works of certain authors. During our event we wanted to highlight the fact that the Public Domain is a modern phenomenon. That it is very much alive. From this perspective, the ongoing policy debate on European copyright will shape our Public Domain for years to come.

2016 is a crucial year for the public domain


As highlighted by Julia Reda in her intervention on Monday, 2016 promises to be a crucial year with regard to the future of the public domain. Later this year the European Commission will—for the first time in over 15 years—propose changes to the EU copyright rules. This provides the opportunity to adopt policies that will strengthen the public domain. Reda mentioned that the European Parliament clearly expressed the desire to better protect the public domain, both in the eponymous Reda report, and more recently in its report on the Commission’s Digital Single Market strategy.

Unfortunately, measures related to strengthening the public domain do not seem to be very high on the Commission’s agenda right now. This is why we have used the Public Domain Day celebration to present a list of seven actions that will support the growth of the public domain in Europe. These actions are aimed at creating a modern copyright framework that is fit to serve the public interest in the 21st century. These actions need to be part of the update of the EU copyright rules. Continue reading