New study explores possible effects of counterproductive press publisher’s right

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At the end of December we published a position paper on the Commission’s proposal to introduce new rights in publications available to press publishers for control over the digital use of their content. The right would apply for 20 years, and would also apply retroactively to content already published. From our perspective, the press publishers’ right will not only fail to increase publisher revenues, but also decrease competition and innovation in the delivery of news, limit access to information, and create widespread negative repercussions for related stakeholders. For this reason we argue that Article 11 (“Protection of press publications concerning digital uses”) should be removed from the proposal.

Today, OpenForum Europe published a paper written by Prof. dr. Mireille M.M. van Eechoud which analyses the press publisher’s right (they call it “PIP”, for short). The study examines the justifications for the proposed press publisher’s right, and assesses how it would fit in the EU copyright framework. (Read full paper here)

The report echoes the skepticism (and dearth of evidence) about whether an additional right would even be able to address the challenges faced by press publishers today:

Neither the Impact Assessment nor the Commission Communication explains in what way the introduction of an additional layer of rights would facilitate the clearing of rights for online uses and reduce transaction costs for all stakeholders concerned. The claims that are made about the causal relationship between the introduction of a publisher’s intellectual property right, increasing revenues and a sustainable press leading to media diversity, are not substantiated with data.

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Commission’s proposal on Text and Data mining: a strategic mistake

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Today we are publishing the second in a series of position papers dealing with the various parts of the European Commission’s proposal for a Directive on Copyright in the Digital Single Market (see our first paper on the education exception here). Today’s paper deals with the Commission’s proposal to introduce a mandatory exception that would allow research organisations to conduct Text and Data mining for scientific research purposes (you can download a pdf version of the paper here). From our perspective this exception is much too narrowly defined and has the potential to stifle the potential of Text and Data mining as a key enabler of social and scientific progress in Europe. For this reason our paper argues for expanding the proposed exception to allow Text and Data Mining by anyone for any purpose.

Position paper: Copyright Reform to Facilitate Research and Innovation

Text and data mining (TDM) is “any automated analytical technique aiming to analyse text and data in digital form in order to generate information such as patterns, trends and correlations.” There is huge potential for text and data mining—in terms of scientific advancement and discovery, civic engagement, and economic activity and innovation within the Digital Single Market.

The European Commission recognizes that researchers encounter legal uncertainty about whether—and how—they may engage in text and data mining, and are concerned that publishers’ contractual agreements may exclude TDM activities. In addition, the Commission observes that the optional nature of existing exceptions could negatively impact the functioning of the internal market.

To rectify this situation the Commission proposes changes to existing rules “to ensure that researchers can carry out text and data mining of content they have lawful access to in full legal certainty, including across borders.” Continue reading

Peculiar policymaking: a post-mortem on the Commission’s overdue report on copyright consultations

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Last week the European Commission released its bombshell Directive on Copyright in the Digital Single Market. And while analyzing this proposal has occupied most of our time, there were several other documents released simultaneously by the Commission that also deserve the public’s attention. Of particular interest was the long-awaited report on the results of the public consultation on 1) the panorama exception, and 2) the role of publishers in the copyright value chain (aka ancillary copyright proposal).

We’ll explore these in more detail below, but first a word on process. The public consultation on freedom of panorama and ancillary copyright ended on 15 June. We think that the public input should have been analyzed by the Commission and released to the public long before any public release of a Directive in which those topics are discussed. Doing so would have demonstrated reasonable and responsible policy-making on behalf of the Commission. But by releasing the summaries of these consultations at the same time as the Directive—when it was far too late for the public to understand the Commission’s thinking, let alone advocate for other changes—only reinforces the EC’s disingenuousness in having a public consultation in the first place.Continue reading

European Commission sets clear path for implementation of treaty for the blind

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A step toward securing a right to read for all
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Yesterday the European Commission introduced the Directive on copyright in the Digital Single Market, and let’s be honest, it’s a disaster for citizens, educators, and researchers across Europe. But there’s a silver lining. The Commission also presented a Directive and a Regulation to implement the Marrakesh Treaty into EU law.

The Marrakesh Treaty would improve access to copyrighted works for the blind and visually impaired. States that are party to the treaty must provide for an exception to copyright law that allows for the “creation of accessible versions of books and other copyrighted works for visually impaired persons.” After years of frustrating debate at WIPO, the treaty was finally signed in Marrakesh, Morocco in June 2013. It was ratified by the required 20 states in June of this year, and now each party must provide for a legislative implementation of the treaty provisions.

The Commission’s Directive and Regulation constitute a much needed breakthrough in the drawn out process of  implementation of the Marrakesh Treaty into EU law. The both pieces of legislation  will now need to be approved by the European Parliament and the Council of Member States.

Ratification of the treaty by the EU has so far been held up by a disagreement between the Member states with regard to the ratification procedure. Over the last few years several Member States have called into question whether the EU has the “competence” (read: authority) to ratify on behalf of all members. However, earlier this month the EU Advocate General published an opinion confirming the “exclusive competence of the EU” to ratify the Marrakesh Treaty.

We’re glad to see this process finally coming to a close with a positive result that will improve access to copyrighted materials for the blind, visually impaired, or print disabled. It’s about time.

Commission proposes to limit text and data mining in Europe

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We’re continuing to analyse the prospective changes to EU copyright law described in both the leaked impact assessment, and last weeks week’s leaked draft for a Directive on copyright in the Digital Single Market. In this post we take a closer look at the proposed exception for text and data mining (TDM).

The Commission recognises the incredible potential in text and data mining, writing that “TDM can be a powerful scientific research tool to analyse big corpuses of text and data such as scientific publications or research datasets.” They also note that researchers would be more likely to engage in text and data mining if it was not for the legal uncertainty that exists as a result of the current copyright rules. The draft Directive notes that there are parts of existing EU law that already would cover some TDM activities, except for the fact that these exceptions are “optional and not fully adapted to the current use of technologies in scientific research.” So, in order to overcome this legal uncertainty, the draft directive provides for a mandatory exception for uses of text and data mining technologies in the field of scientific research.

In article 3 the Directive stipulates that member states shall provide for an exception to the exclusive rights granted in the Copyright and Database Directives and the new publishers’ right proposed further down in the Copyright in the Digital Single Market Directive…

…for reproductions and extractions made by research organizations in order to carry out text and data mining of works or other subject-matter to which they have lawful access for the purposes of scientific research. […] Any contractual provision contrary to the exception […] shall be unenforeceable.

There are a few good things about this approach. First of all, making the Directive mandatory will ensure that the exception applies uniformly across all EU members states. We also welcome the explicit clarification that the rights granted under the exception cannot be contracted away.

In addition, it is a step in the right direction that the proposed exception would now apply to all acts undertaken “for the purpose of scientific research” whereas earlier statements by the Commission hinted at an exception that would only apply to non-commercial research purposes. Unfortunately these steps do not fix the fatal flaw of the approach proposed by the Commission:Continue reading

Lisbon Council calls for broad text and data mining exception to promote EU research competitiveness

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Yesterday the Brussels-based think tank The Lisbon Council published the policy brief Text and Data Mining for Research and Innovation: What Europe Must Do Next. It was written by Sergey Filippov and Paul Hofheinz. In the paper, the authors analyse contemporary text and data mining (TDM) trends, and make recommendations for how European policymakers can better support researchers who wish to engage in TDM activities.

The authors observe that Europe has fallen behind other parts of the world in text and data mining research. One reason is due to the ambiguous legal environment in Europe surrounding TDM. In 2014 the United Kingdom adopted a copyright exception for text and data mining for non-commercial research purposes, but the situation for other countries in Europe is not so clear. The European Commission has not been entirely helpful, either. In their December 2015 communication on copyright, they said they would consider introducing an exception for TDM. However, instead of recommending a robust exception that would truly support text and data mining as an increasingly important research tool, the Commission suggested a narrow interpretation that would restrict TDM only to those affiliated with a “public interest research institution”, and only for “scientific research purposes.”

In their paper, Filippov and Hofheinz say that European researchers may be “hesitant to perform valuable analysis that may or may not be legal”, and that scholars “are forced, on occasion, to outsource their text-and-data-mining needs to researchers elsewhere in the world.” They recognize that some of the language in play—such as “public interest research organisation”, “scientific research purposes”, and “non-commercial”—could be open to misinterpretation, or even be at odds with the underlying public policy intention.

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COMMUNIA response to Commission’s consultation on ancillary copyright and freedom of panorama

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The European Commission’s public consultation on the role of publishers in the copyright value chain and on the ‘panorama exception’ wraps up on 15 June. COMMUNIA has submitted its response (PDF) to the questionnaire. Our answers reflect the role of COMMUNIA as a non-profit organisation that defends the public domain and advocates a copyright system that benefits users, creators, educators, researchers and cultural heritage institutions. Below we provide a summary of our responses to both parts of the consultation.

Ancillary copyright for publishers

It will come as no surprise that we oppose the creation of a new neighbouring right for publishers. Doing so would have a strong negative impact on all the audiences identified in the questionnaire, including publishers, authors, journalists, researchers, online service providers, and users.

For the majority of publishers, it would establish an unnecessary (and often unwanted) additional right that they would have to deal with, and could even make it harder for them to grow and develop innovative business models. And perhaps more to the point, the experiments with ancillary rights for press publishers in both Spain and Germany did not result in increased revenues. Instead, it likely decreased the visibility (and by extension, revenues) of their content—exactly the opposite of what was intended.

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Ancillary Copyright: bad for both end-users and creators

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The Commission’s public consultation on whether to grant additional rights to press publishers is aimed at audiences beyond the publishers themselves, to include a wide range of stakeholders – including end users, consumers, and citizens. In this third post of our series on the consultation, we highlight what the introduction of an additional right for publishers would mean for end-users of news and online information, as well as content creators. We encourage everyone to make their views known to the Commission by answering the consultation questionnaire by 15 June.

[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.]

Bad for end-users

We’ve already argued that granting new rights to press publishers is a fool’s errand. The adoption of an EU-wide ancillary copyright would have significant negative consequences for end-users of online news and information.  And users would encounter additional hurdles in finding the news and content they were looking for. In addition, these users would potentially face more constraints in quoting, linking to, aggregating, or otherwise finding and using works. Many users that rely on curated news aggregators like Google News or even RSS readers or other apps that reproduce snippets of content from news articles. If an additional right for press publishers is enacted, users would find that these existing news products and services will likely be disrupted, their prices increased, or even discontinued altogether (as we’ve seen in Spain with Google News).

The creation of an ancillary copyright for press publishers can have far reaching effects with regard to access to information beyond the traditional new aggregation services. For example, popular social networking apps and websites used by hundreds of millions of people could be affected too. Think about sites like Facebook and Twitter that permit anyone to post links and short pieces of text. Under a system where publishers are granted an additional right to such snippets, those publishers would be able to extract fees from social networking sites (who of course would likely pass on that cost to their users) in order to allow for open linking to content.

Bad for creators

The adoption of an ancillary copyright for press publishers would also harm content creators.  The data show that granting additional rights for press publishers does not lead to higher compensation for creators. Instead, it frustrates end-users and results in big content aggregators like Google News threatening to discontinue operations if they would be required to pay royalties to publishers for linking to content or providing short snippets to publishers’ content. Even if a system could be arranged where publishers would be compensated for the reproduction of short snippets or links, it’s not clear how (or if) that money would flow back to the authors of the original content.

In addition, an ancillary copyright for press publishers would run afoul of the intentions of creators who wish to share without additional strings attached because the right could be interpreted as unwaivable. For example, the Spanish ancillary right did not treat openly-licensed content differently from content under all rights reserved copyright. Content publishers sharing under Creative Commons licenses, which is increasingly popular, would still be subject to the ancillary copyright, as we wrote then: “By making the right unwaivable aggregators are required to pay fair remuneration to a collective rights management organisations even if a creator has chosen to apply a Creative Commons license that allows the free reuse of her creation.”

Make your voice heard

If you are are content creator, or end-user, we encourage you to make your voice heard and let the Commission know why introducing new rights for publishers is a terrible idea that will damage the European news landscape, social media platforms and more. You can respond directly to the consultation on the Commission’s site, or through an easy tool on youcan.fixcopyright.eu.

We will continue this series next week by highlighting the importance of securing a broad freedom of panorama across the EU.

European Commission wants feedback on ancillary copyright and freedom of panorama

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We just got done submitting our response to the Commission’s public consultation on the enforcement of intellectual property rights. But there’s no rest for the weary. Next up is the consultation on the role of publishers in the copyright value chain and on the ‘panorama exception’.

COMMUNIA will be responding to this public consultation, and you can too! Answers to the Commission’s survey must be received by 15 June. You can find a helpful answering guide at http://youcan.fixcopyright.eu/ which covers both topics adressed by the consultation. The guide was created by Copyright 4 Creativity in order to mobilize the voice of creators, internet users, and the public in the EU copyright reform process.

Ancillary copyright

Regarding the role of publishers, the Commission wants to “gather views…on the impact that granting an EU neighbouring right to publishers could have on the publishing sector, on citizens and creative industries and as to whether the need (or not) for intervention is different in the press as compared to other publishing sectors.” This “neighbouring right” is also known as “publishers right” or “ancillary copyright”. It’s also been referred to as a “link tax” because it is intended to permit content publishers to charge search engines and other content aggregators for incorporating short snippets or even linking to news articles.

As we’ve written before, ancillary copyright is good for no one. Everyday internet users and consumers of news and articles would then have a harder time finding the news and information they were looking for, and would potentially face more constraints in quoting, linking to, aggregating, or otherwise using works protected by a new ancillary right for press publishers.

There is no decent business case for ancillary copyright either. Spain and Germany experimented with ancillary copyrights for press publishers, and both seem to have failed miserably. The Spanish law ended in Google News shuttering its operation there because it did not make (economic) sense  to have to pay license fees to news publishers for the for the use of snippets as part of a service which primary function is to drive traffic to them. By now the publishers have figured this out themselves as the amount of traffic they receive from Google News and other aggregators has dropped significantly. After the implementation of the new law, traffic to the publishers’ content decreased 6 to 14 percent. The same thing happened in Germany, except the German publishers saw what had happened in Spain and literally gave Google a free license to their content. And it’s not just the big news aggregators that are affected. In Spain, some smaller aggregators shut down entirely. Recently, a small business which curated links and news about Alzheimer’s disease that had to remodel their entire business because of the ancillary copyright law in Spain.

Last year the European Parliament rejected the introduction of an ancillary copyright amendment into the Reda  report, and earlier this year over 80 MEPs wrote a letter to the Commission opposing it.

Freedom of Panorama

The current consultation also asks for input to inform the Commission’s analysis regarding the ‘panorama exception’. Freedom of panorama refers to the legal right to take and share photos, video, and images of architecture, sculptures and other works which are permanently located in a public place. We think that the freedom of panorama should be mandatory across the EU. The sharing of photos taken in public places is an example of an everyday activity that should not be regulated by copyright. This issue was also brought up in the discussion around the Reda report. An amendment was introduced to restrict freedom of panorama to only non-commercial uses, but a huge protest from citizens, photographers, and civil society organisations—including a Change.org petition that received over 500,000 signatures—helped remove the amendment from consideration.

It’s important that the Commission hear from the public about both of these topics. In the coming weeks, we will publish a series of blog posts about questions posed by this consultation. We hope that these posts will highlight what is at stake. Communia will also be responding to the public consultation process, and you can provide your feedback too. Again, responses to the Commission’s survey must be received by 15 June, and you can check out how to answer the questions with the guide at http://youcan.fixcopyright.eu/.

Fair use and the importance of flexible copyright exceptions

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A universe of limitations to copyright
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It’s Fair Use Week, and organizations and individuals are publishing blog posts, hosting workshops, and sharing educational media about the implementation and importance of this essential limitation to the rights endowed by copyright. Fair use is a flexible legal tool that permits some uses of copyrighted material without permission from the original rightsholder, such as for use in news reporting, criticism, teaching, and other reasons. A fair use is not an infringement of copyright.

The doctrine of fair use sits under the larger umbrella of limitations and exceptions to copyright. These limitations are a necessary check on the exclusive rights granted to copyright holders. Even though fair use has only been adopted by a small number of countries, in Europe there are several exceptions that are central to supporting permission-free uses of copyrighted content for various public interest goals. Both fair use and flexible copyright exceptions serve the same basic purpose, but under different legal landscapes.

We’ve highlighted several commonsense limitations to copyright that should be adopted and standardised throughout the EU. These include exceptions for educational use, for cultural heritage institutions to be able to share out-of-commerce works online, for freedom of panorama, and for audiovisual quotation. It’s important that these exceptions are made mandatory and are fully harmonised across all EU member states.

We’re especially interested in how limitations and exceptions to copyright can support modern education practices. Last month we published a policy paper outlining the requirements for a progressive EU-wide exception to copyright for educational purposes. This exception should 1) address local and cross-border education needs; 2) be mandatory; 3) be neutral with regard to media type, format, and technology; 4) be flexible; and 5) cover all necessary uses provided they are in accordance with fair practice.

As we observe Fair Use Week 2016, we’re happy to see that users around the world are taking advantage of limitations and exceptions—an important safety valve to the rules of default copyright. We’re hopeful that in the coming months the Commission will support the creation of exceptions that balance the interests of rightsholders with the needs of the public who wish to use copyrighted works in creative and educational ways.