Ancillary Copyright: bad for both end-users and creators

Spotprent op de uitgever Jobard te Brussel
No additional copyrights for publishers!
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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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Make your voice count
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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.

 

Copyright Week 2016: The public domain as foundation for EU copyright law reform

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We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation.

COMMUNIA advocates for policies that expand the public domain and increase access to and re-use of culture and knowledge. Over the last few years we’ve focused on policy advocacy and copyright reform in Europe, especially in light of the review of the EU copyright rules. The public domain is an essential sphere for creativity and knowledge production, and its limitless potential continues to inform our copyright reform advocacy.

We write in our March 2015 policy paper about several changes to EU copyright law that would better support the public domain. Some of these include capping the term of copyright protection to the minimum required by the Berne Convention, opposing the introduction of ancillary copyrights, protecting the freedom of panorama, and exempting works produced by the public sector from copyright protection. In addition, we call for the introduction of a positive definition of the public domain, the recognition of the legal validity of voluntary dedication of works to the public domain by their authors, and clarity that digitizing public domain works should not generate new exclusive rights.

In June of last year the European Parliament adopted an evaluation report on the existing EU copyright rules authored by MEP Julia Reda. While the EP failed to call for substantial updates to exceptions and limitations, it contains some support for the public domain. It urges the European Commission to clarify that once a work is in the public domain, the simple act of digitisation does not create new rights. It suggests that the term of copyright be held at the international standard (life of the author plus 50 years). It also states that works created by government employees should be in the public domain. Finally, it recognizes that authors should be able to dedicate their works to the public domain.

With its report, the European Parliament also rejected the introduction of an ancillary copyright for for press publishers. This is an important victory as adding such an extra layer of rights to the already extensive body of copyright and copyright-like protections would further limit the public domain. Unfortunately, the European Commission still hasn’t distanced itself from plans to introduce an ancillary copyright on the EU level, which has prompted 83 members of parliament to reconfirm their opposition to it in December.

With legislative proposals promised by the Commission in the first half of this year, 2016 promises to become a crucial year with regard to the shape of the public domain in Europe. On the 25th of January we are kicking the year off with an event in the European Parliament celebrating Public Domain Day (hosted by MEP Julia Reda). Together with creators and policymakers, we will discuss the value of the public domain and how an update of the EU copyright rules can strengthen the public domain for everyone.

COMMUNIA policy paper on leveraging copyright in support of education

Leerlingen in een lokaal van een kunstnijverheidsschool in Amsterdam
Principles for education exceptions to copyright
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Communia has published a policy paper on the topic of leveraging copyright in support of education. We contend that exceptions and limitations to copyright for education should support broad access and re-use of copyrighted content of all types in a variety of education settings and across borders.

The best way to achieve the proper balance of interests at stake is through the adoption of an exception or limitation to copyright for educational purposes that meets the following requirements:

  • it should be able to address local and cross-border education needs;
  • it should be mandatory;
  • it should be neutral with regard to media type, format, and technology;
  • it should be flexible; and
  • it should cover all necessary uses provided they are in accordance with fair practice.

We note that an exception or limitation to copyright for educational purposes is crucial because licensing will never be a wholly adequate solution to provide access to these works.

The full policy paper can be viewed online or downloaded as a PDF here.

Doubling the size of the useable public domain

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The commons continues to grow
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On Tuesday Creative Commons released its 2015 State of the Commons report. The annual report showcases data and trends about the growth and diversity of the commons.

Creative Commons—which is a founding member of COMMUNIA— reported a major milestone this year: over 1.1 billion CC licensed photos, videos, audio tracks, educational materials, research articles, 3D models and more have now been contributed to the shared global commons. More people and institutions than ever before make use of CC’s tools to free up rights-protected content for everybody to re-use.

In addition, CC noted a huge increase in the number of works shared in the public domain using the CC0 Public Domain Dedication and out-of-copyright works marked with the Public Domain Mark. According to the data, the total number of public domain works using these tools in 2014 was about 17.5 million. That number jumped to nearly 35 million in 2015. This means that the size of the CC-marked public domain nearly doubled over the last year. This is in part due to the tools being more widely and adopted by platforms like Europeana and Flickr. Providing clear information about the public domain status of works is crucial so that subsequent creators know they can use those works without any restriction. Continue reading

Reboot of YouCan.FixCopyright.eu for Commission’s platform consultation

The Letter Writer
Dear European Commission...
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Last month we wrote about how the European Commission is running a consultation on the ‘Regulatory environment for platforms, online intermediaries, data and cloud computing and the collaborative economy’. While this is an important opportunity to provide feedback, it’s not been easy for individuals to parse the Commission’s long and complicated questionnaire.

The Copyright4Creativity coalition (of which COMMUNIA is a member) relaunched its YouCan.FixCopyright.eu site to help people respond to the questions. This tool is useful because it will allow respondents to select questions that are relevant to them, and provides a “human readable” explanation of what the Commission’s questions mean.

The consultation runs until 30 December 2015 and the C4C’s YouCan.FixCopyright.eu form will be available until midnight 25 December, as they need to transfer the collected responses from the site to the European Commission. Here’s what you can do to help:

If you have 20 minutes:

  • Go to YouCan.FixCopyright.eu questionnaire, chose your ‘persona’, and fill in the questions you want to respond to, from those we selected as relevant to copyright.

If you have 2 minutes:

  • Send an email to your networks to inform them of this initiative and encourage them to participate.

If you have 20 seconds:

Why is a museum suing Wikipedia for sharing?

Portrait of Richard Wagner
digitisation of public domain works doesn't create new rights
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Above is the Portrait of Richard Wagner by Cäsar Willich, one of the contested images.

Yesterday the Wikimedia Foundation and Wikimedia Deutschland announced that they’re fighting a copyright infringement lawsuit brought by the Reiss Engelhorn Museum. The German museum is suing Wikimedia for publishing digital reproductions of public domain artworks from its collection on Wikipedia. The physical works of art housed in the museum are clearly in the public domain, but German copyright law might apply to photographic reproductions of those works. According to Wikimedia,

The Reiss Engelhorn Museum asserts that copyright applies to these particular images because the museum hired the photographer who took some of them and it took him time, skill, and effort to take the photos. The Reiss Engelhorn Museum further asserts that because of their copyrights, the images of the artwork cannot be shared with the world through Wikimedia Commons.

Wikimedia aligned its goals with those of many cultural heritage institutions, and restated their community’s ongoing commitment to increasing the accessibility and reuse of creative content in the commons. The foundation and Wikimedia Deutschland disagreed with the views of the museum, saying that “Copyright law should not be misused to attempt to control the dissemination of works of art that have long been in the public domain…[t]he intent of copyright is to reward creativity and originality, not to create new rights limiting the online sharing of images of public domain works.” Continue reading

More licenses are not the solution for text and data mining

De zanderij
The right to read is the right to mine!
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Earlier this week  LIBER released a response to the STM Association’s statement about text and data mining (TDM). The STM Association asserts that legal certainty already exists for TDM via publishers’ licences, and that creating copyright exceptions for text and data mining activities would undermine the investment incentives for ensuring that high-quality content is available.

LIBER refutes these claims. First, they say that publishers’ licenses for TDM are not straightforward or easy to understand.

Licences could never be described as simple; they are highly complex and can take months or even years to complete. They often refer to laws in other jurisdictions and in most European countries they can override the flexibilities that exceptions are intended to provide. Many licences explicitly forbid TDM associated activities such as crawling of content and the depositing of data in institutional repositories.

Second, LIBER argues that forcing researchers to acquire licenses to engage in text and data mining will divert investment money away from conducting important research, and instead will be used to pay for license compliance and monitoring activities. Instead, they say that a copyright exception for TDM would actually promote investment, not inhibit it. Continue reading

Why licensing is not always the solution

Last week we took part in a breakfast meeting at the European Parliament under the theme “Why licensing is not always the solution”. The meeting was hosted by MEP Jytte Guteland and co-organised by Communia together with Copyright for Creativity, IFLA, EBLIDA, and LIBER. Our goal was to demonstrate the need for reforms that go beyond licensing-based solutions, and focus in particular on supporting and expanding exceptions and limitations to copyright.

Alek Tarkowski, speaking on behalf of Communia, talked about the importance of exceptions and limitations as one of the building blocks of the Public Domain. As such, they are fundamental for creating breathing spaces within the copyright system, in which public interest goals can be achieved without copyright-related limitations.

The insufficiency of licensing-based solutions was a clear outcome of the “Licenses for Europe” structured debate in 2013. Yet in recent weeks licensing-based solutions have started to resurface in the public debate on copyright. The European Publishers Council pushes for self-regulatory solutions (that is licenses) in its submission to the Digital Single Market consultation. CISAC, in its letter to MEP Reda, goes even further and describes exceptions and limitations as damaging to artists and their families.

It is in this context that we are asking for the European legislator to review the scope of the exceptions and limitations that are currently in force – and which were defined in the InfoSoc Directive almost 15 years ago. We need strong, harmonised, re-imagined exceptions and limitations as a fundamental building block of a copyright system fit for the digital age.

While not the focus of our position paper, free licensing is sometimes seen as a specific case of self-regulation. The success of Creative Commons licensing has been raised in the past as an argument in favor of a focus on licensing-based solutions. We are against such arguments and see free licensing as another founding element of the Public Domain. It is worth reminding in this context the Creative Commons statement in support of copyright reform.

Our position is fully described in our new position paper, “The importance of exceptions and limitations for a balanced copyright policy. ​Licensing alone will not secure user rights”. You can find it, alongside previous statements, in our “Policy Papers” section.

UPDATE: IFLA and Copyright for Creativity have also published posts about the meeting.