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

Markt te Beauvais
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

The Copyright Joke

Cure of Folly (Extraction of the Stone of Madness)
EUIPO's Q&A on copyright
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How many European lawyers does it take to explain copyright? Start with 28 and add another dozen, because opinions vary. Even a basic project of explaining key copyright issues to EU citizens in 15 Q&As demonstrates that not only is European copyright fragmented into 28 incompatible systems but also that explaining the law is time-consuming and sometimes plainly ridiculous.

Continue reading

Freedom of Panorama – can we be satisfied with only non-commercial use?

Spotprent op de uitgever Jobard te Brussel
Public spaces are part of the commons
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The current European Commission public consultation is about ancillary copyright as well as the ‘panorama exception’ (nobody seems to understand why these two were combined in a single consultation process). Freedom of panorama refers to the legal right to take and share photos, video, and images of architecture, sculptures and other works which are located in a public place. We think that the freedom of panorama should be mandatory across the EU for both noncommercial and commercial purposes. Since the issue is now on the table, it’s important that any outcome supports the commonsense right to take and share images of objects in public places.

Everyday activities should not be limited

The sharing of photos taken in public places is a commonplace activity that should not be regulated by copyright. The issue of freedom of panorama was also discussed in the Reda report. An amendment was introduced by Jean-Marie Cavada 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.

But this didn’t stop the Commission from reopening the issue in its most recent consultation when it  asks, “What would be the impact on your activity of introducing an exception at the EU level covering non-commercial uses of works, such as works of architecture or sculpture, made to be located permanently in public places?”. Implementing a distinction between commercial and non-commercial use of images covered under the panorama exception will muddy any legal certainty for citizens engaged in taking and sharing images. What does “commercial use” mean? Is it related only to payments for direct use of a photograph? Would images that appear on a website that also contains online advertising automatically considered to be a commercial use? Would Wikipedia be considered a commercial project because it also asks for individual donations on its site? Could a user publish a photo on a for-profit social media platform? 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

European Commission wants feedback on ancillary copyright and freedom of panorama

Vrouw met spreektrompet
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/.

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

Fight with Cudgels
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

COMMUNIA response to IPRED consultation

lillies
enforcement of copyright must not curb creativity
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Last week COMMUNIA submitted its response to the European Commission’s public consultation on the evaluation and modernisation of the legal framework for the enforcement of intellectual property rights (IPR).

We believe that the existing Directive fails to adequately address the varying types (and by extension, impact) of activities that would technically constitute copyright infringement. This is particularly worrying in the case of online infringement, where many violations occur due to unconscious actions by internet users who are not familiar with complex copyright rules. To be justly enforced, the rules should take into account the fact that there are many forms of incidental or relatively harmless forms of infringements today. The law should weigh the seriousness and impact of these minor infringements when deciding on enforcement measures and damages.

Excessive enforcement of copyright against everyday activities must not curb creativity, freedom of expression, and innovation.

From the perspective of internet users, there is no need to revise the Directive in order to strengthen its enforcement provisions. If anything is to be changed, it should be those provisions that support a better balance between the interests of consumers and the protection of the rights of content creators. The following changes should be considered:

 

  1. Ending both civil and criminal prosecutions of citizens for non-commercial file sharing, and withdrawing from prosecuting the creators of derivative works who produce non-commercial remixes. In addition, criminal penalties for violations of intellectual property rights by individuals should be minimized.
  2. Introducing mechanisms for safeguarding fair use and the public domain, including a ban on direct contractual restrictions on access and use of these materials, or of using digital rights management or other technical mechanisms to prevent citizens from exercising their rights under the law.
  3. Avoiding the situation where ISPs or hosting services are forced to filter content based on the orders imposed by civil courts attempting to enforce intellectual property rights, contrary to the provisions of Directive EC / 21/2000 (“the E-Commerce Directive”). There should not be any involvement of intermediaries other than the notice and takedown rules already in place under the E-Commerce Directive. As highlighted in our answers above, these rules already negatively impact internet users because they do not adequately provide users the ability to file counter notices. The ability of users to oppose and counter unjustified takedowns needs to be strengthened, and rights holders need to be required to take into account exceptions and limitations to copyright before filing notice and takedown requests.

We will continue to monitor the outcomes of this consultation. We’re curious to see how the Commission will take into account responses from end users who have contributed to the consultation via youcan.fixcopyright.eu.

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

Creators sharing in the public domain

De Roof van Europa
The Public Domain strengthens Europe
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Last January, COMMUNIA invited creators to share thoughts about their relationship with the public domain. They spoke at the Public Domain Day 2016 event we organised in the European Parliament, hosted by MEP Julia Reda. We learned from their experiences that copyright can be perceived as a hurdle for creators, that sharing your work into the public domain can make businesses grow, and that the reuse  of materials of which the copyrights have expired can lead to beautiful new things happening.

Sebastiaan ter Burg made a great video about this  event. Watch and learn how a stronger public domain can foster culture and innovation in Europe:

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. You can read more here on how COMMUNIA thinks that can be done.