‘School of Rock(ing) Copyright’ at the CC Europe meeting

School of Rock(ing) Copyright
Mobilising Copyright Reform Advocates

This post was written by Natalia Mileszyk and Lisette Kalshoven, and also posted on the Creative Commons blog.

Last week at the Creative Commons Europe Meeting in Lisbon, COMMUNIA organised a “School of Rock(ing) Copyright” workshop. Creative Commons affiliates from Poland, the Netherlands, and Portugal joined efforts in sharing knowledge about the current European copyright reform. We examined the political process for updating the copyright rules, and asked for help from other CC Europe affiliates in advocating for positive copyright changes. We were pleased to have around 15 participants from as many EU countries attend the session. Since we’re at a crucial stage within the European legislative process, we were eager to discuss the ins and outs on how we can create a better copyright for Europe.

Why does the CC community care about copyright reform? We all stand for creativity, innovation, access to knowledge, and development. Copyright can both boost or limit these goals, so we are actively involved to make progressive changes to copyright to benefit users, education, and the commons.

What we presented at the workshop

At the ‘school’ we focused on four different areas that people need to know about when engaging in advocacy for copyright reform in Europe. First, we provided a quick overview on ‘Brussels’ and how the different institutions such as the European Commission and Parliament interact. Second, we explained how the legislative process works. The Commission proposal is out, but it’s far from the end of the process! Third, we shared tactics and tips for getting involved in advocacy activities. These often seem obvious, but are very important when interacting with politicians. For example: never ask for anything people can’t give you, and come to the table with clear, concise suggestions. Few politicians have the time to read a 200 page research report, no matter how riveting we think it is! The fourth and last part of our workshop dug into a few key topics within the current copyright reform proposal, including areas such as cultural heritage, education, and research. Continue reading

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

Lost in the EU copyright labyrinth

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

Italian Landscape with Umbrella Pines
A step toward securing a right to read for all

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.

Europeans deserve a better copyright reform

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

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

Unlocking copyright for users: Make law, not licenses

Unlocking Copyright for users panel in the European Parlliament
Debating copyright in the European Parliament

In the copyright reform process, according to MEP Therese Comodini Cachia, the European Parliament is not looking for polarized stakeholder opinions. Instead, it is looking for data and evidence. On September 8 in Brussels we delivered on the latter by showing there is still a chance to unlock the copyright for users. As to what MEPs don’t need, polarization may be difficult to avoid as long as legitimate users’ interests are considered to harm traditional copyright revenue streams.

Our event “Copyright reform – unlocking copyright for users?”—which we  organized together with  EDRi and hosted by MEPs Comodini Cachia (EPP) and Carlos Zorrinho (S&D)—gathered a full house in the European Parliament on a sunny afternoon. Representatives of digital rights’ organizations, creative industries, publishers, collecting societies, and artists were eager to talk about the future of copyright in the light of the imminent publication of the Commission’s copyright reform proposals.

Complain, and then move forward

From the perspective of COMMUNIA and EDRi the leaked drafts of the Commission’s  proposal presents a grim picture, where all ambitious attempts to adjust copyright to the challenges of the digital economy were replaced by a focus on propping up existing revenue streams. If the leaked proposals are measured against EDRi’s list of copyfails, almost none of the points identified as necessary to address are covered by the draft legislation. Those that are addressed are only superficial fixes to the existing state of affairs. The leaked proposal is like the new ACTA, as EDRi’s Diego Naranjo put it. 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.

Commission proposes to limit text and data mining in Europe

De zanderij
The right to read should be the right to mine!

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

Education and copyright: we were promised an exception but are offered licenses instead

i wanted exceptions but got licenses insteadLicentie

In its communication on the copyright framework, the European Commission has promised to clarify the scope of the existing exception for illustration of teaching, and its application for digital uses. The overarching goal was to have a mandatory exception that is relevant and effective in the digital age.

Having read the leaked draft of the proposed Copyright in the Digital Single Market Directive, it is clear to us that these goals will not be met. The proposed educational exception, despite having some good elements, will overall worsen the legal environment for educators. And it likely will introduce major costs for public educational systems around Europe.

The licensing narrative

The worst part of the proposed exception is a rule that gives member states the right not to apply the exception, if adequate licenses are provided by the rights holders. This is a rule that in practice makes the exception powerless as a tool for supporting education through legal means at the European level, as member states ultimately will decide whether to provide an exception. And it’s hard to imagine that they will be willing to avoid the rule “no exception can exist if licensing options are available”.

Around Europe, educators depend on the exception to conduct innovative, modern education. Yet they often fall into a grey zone of legal uncertainty – in the most typical scenario, a teacher sets up a school film club, only to find out that viewing films might not be covered by an exception. At that point, a commercial intermediary usually presents itself, and offers a licensing option. There is nothing wrong with that – other than that public school systems are not able to cover these costs. According to our analysis of the situation in Poland, if every school had to purchase one of the available licenses, the public budget would have to invest half the amount it pays every year for financial support to poor students. These are large amounts that could be invested otherwise in generally underfunded educational systems. The proposal does not seem to draw conclusions from this scenario, and seems happy to force educational institutions to adopt licenses – as there won’t be any exception available, to provide a safe, free space for educational uses.

The Commission argues, in the leaked Impact Assessment, that data from member states where licensing options proliferate show that “costs are rather limited if compared to establishments’ overall costs”. This comparison is misleading and unhelpful. Surely, licensing would cost less than upkeep of thousands of school and academic buildings, or that which is allocated for educators’ wages. But licensing fees can still be large sums—which most of the time do not fit into tight budgets. And we need to remember that the ECL scheme, demonstrated by the Commission as a best case scenario, functions well only in rich, Scandinavian countries. Continue reading

Copyright Reform: European Commission does the rightsholders’ bidding

Odysseus en de sirenen
EU copyright reform hijacked by rightsholders

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!

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