The Rhetoric of Copyright Extremism

In the end, nothing happened. When the European parliament adopted a compromise version of MEP Julia Reda’s evaluation report of the EU copyright directive, the attempt of MEP Jean-Marie Cavada to restrict the right to publish pictures of buildings and artworks permanently installed in public places (“freedom of panorama”) was voted down by a huge margin. The majority that had supported the Cavada amendment in the legal affairs committee vanished under a storm of protest, spearheaded by Wikipedians fighting for their right to include pictures of buildings and artworks in their free encyclopedia.

However, while the final version of the report did not suggest restricting freedom of panorama, it did not include a specific provision to protect it, either. Instead, member countries would still be free in whether and how to implement such a limitation into their respective national copyright laws. In a way, this outcome is a typical example of the widespread copyright extremism in Europe, which blocks even the most sensible and moderate copyright reform proposals.

The overall spectrum of opinions in current copyright debates ranges from abolitionism, that is, proposals to discard copyright altogether, to copyright extremism on the other side. Copyright abolitionism is a position sparsely mentioned in regulatory conversations. While authors Joost Smiers and Marieke van Schindel, for instance, have managed to create some buzz around their book “No Copyright”, the attention was only short-lived and the discussion left no real lasting mark on the conversation overall. And abolitionist positions brought forward by libertarian researchers such as Michele Boldrin, David K. Levine and their colleagues have only played a very marginal role in scientific discourse, as well.

However, we observe that rhetoric around ratcheting up extreme copyright protections plays a major role in the mainstream of regulatory conversations around copyright, while rarely recognized and called out as extremism. Rather, even the most far reaching positions are considered perfectly legitimate when brought forward in committee hearings, policy papers or campaigns. In a way, current copyright discourse is heavily skewed towards the side of copyright extremism, which makes any moderate and balanced reform of copyright laws difficult, if not impossible. Taking a closer look at the relentless rhetoric of copyright extremism might therefore help to identify and address this problem. Continue reading

Alternative Compensation Systems only work if adopted by all sides

ACS-small

This post was written by Lisette Kalshoven and Katarzyna Rybicka.

Fifteen years ago, the explosive growth of the file sharing network Napster changed the music industry forever. It was a simple response to the difficulty of finding, downloading and sharing music over the web. Since then, policy makers and stakeholders have been trying to resolve the ongoing challenge of unauthorised copying, without much success. In many instances copyright enforcement turns out to be either ineffective, or is applied in such a way that violates fundamental rights such as the right to information, freedom of expression or privacy and protection of personal data.

Last Saturday in Amsterdam, the renowned institute for research on intellectual property rights, IViR (Institute for Information Law) held a symposium on Alternative Compensation Systems (ACS) for cultural goods. An ACS can be described as a legal mechanism which permits the reproduction, downloading, sharing and sometimes even modification of copyrighted works. This can be done without the need for an opt in from users (mandatory ACS) or with an opt in (voluntary ACS), but with both options giving compensation to the creators and copyright owners of those works.

The IViR researched the non-commercial use of cultural goods online for two years. The results suggest that consumers are dissatisfied with the existing legal access channels. As a consequence, different forms of ACS were supported by the majority of the Dutch population questioned.

One of the interesting results of the study was that if implemented, a monthly compensation system fee of only ca. €1.74–collected via a surcharge on existing Dutch Internet subscriptions–would raise the same amount of revenues for rights holders as the current market for recorded music, which is ca. €144 million per year. In addition, the researchers examined the amount the respondents said they would be willing to pay for participating in a compensation system covering recorded music, which is €9.25 per month for a mandatory ACS.

If this holds true, it means that a well-designed ACS for recorded music would mean bigger revenue in the recording industry (and thus more income for creators) while still within the acceptable range that consumers would be willing to pay. Interestingly, the biggest (voluntary) subscription-based music service now, Spotify, has a monthly subscription fee of €9.99, slightly higher than what users said they’d be willing to pay when asked by the IViR researchers.

“It shimmers, it’s yellow, it might be even gold,” said Dr. Christian Handke, the co-author of the report, during his presentation at the conference. But the economic panel raised important questions, such as who should be responsible for the distribution of revenues, who should bear the operating and enforcement costs, and how would a mandatory ACS be implemented without inhibiting innovation in the music industry. These are still questions without clear answers. In short, the results are promising, but it seems we are far from implementing a mandatory ACS.

The panel on user involvement in copyright policy had intriguing panelists, including MEP Julia Reda, Agustín Reyna from BEUC and Jim Killock from Open Rights Group. They discussed, among other things, how an ACS could be adopted within European policy.

There were two important take-aways from the panel on the adoption of a mandatory ACS. First, it needs to be tested on a smaller scale before it can be implemented at the national (or Europe-wide) level. IViR realises this and is designing an experiment in The Netherlands with relevant stakeholders.

Second, Reda pointed out that such a system would never come into being if rights holders and consumers are not on the same page. Past experience has shown that consumers and citizens are more likely to get involved with copyright policy if they sense a potential negative change in how they’re able to interact with copyrighted materials, as opposed to lending their voices for a positive campaign without an immediate observable threat. The recent media attention for the freedom of panorama in the EU illustrates her point. This is a challenge, and one that we should try to overcome. We need to get citizens more involved in copyright reform in a way that makes it better suited for the digital age. We welcome discussion on how to overcome this challenge.

European Parliament adopts Reda report, fails to demand real copyright reform

Yesterday the European Parliament approved MEP Julia Reda’s evaluation report of the copyright directive. With the report the European Parliament gives a clear signal that the European Copyright rules need to be modernised. This puts the ball in the court of the Commission, which needs to come up with concrete legislative proposals for a copyright reform – which it promised to deliver before the end of the year. Both Commissioners Oettinger and Ansip have reacted positively to the Report, while its author, Pirate Party MEP has expressed the hope that the Commission’s proposal will be more ambitious than the EPs report, which has been watered down considerably through a large number of amendments.

So while the report is a clear signal that MEPs want to see a modernisation of the EU copyright rules that date back to 2001, it is much less clear what shape these modernised rules should take. Most of the report is based on compromises that MEP Reda has brokered between all major political groups represented in the EP. As a result, the report does not outline a clear plan for reforming copyright. Still, it is possible to distill from it a number of things that MEPs clearly both want and don’t want to see in the reform proposal. It is also clear that pressure from civil society – related to such issues as Freedom of of Panorama, hyperlinking or ancillary copyright, helped avert worst amendments to the report.

MEPs do not want to see further limitations of user rights.

Attempts have  been made to include language that would limit the rights of end users. Fortunately all of these attempts failed. The majority of MEPs is clearly unwilling to further limit the ability of citizens and other users to interact with copyright protected material. Continue reading

BEUC highlights consumer confusion in everyday uses of copyrighted material

BEUC, The European Consumer Organisation, has released an interesting fact sheet pertaining to confusion and uncertainty in consumer use of copyrighted materials. BEUC surveyed relevant stakeholders about the current copyright reform debates in the EU. These stakeholders ranged from collecting societies to academics and government ministries, and the conclusions drawn from their answers are both predictable and problematic: it seems no one can agree on the legality of using copyrighted content.

john from BEUC making a video

BEUC took simple and everyday examples on how consumers interact with copyrighted material (for example, making private copies of DVDs, selling an ebook online, or using a VPN to access your Netflix account while on holiday) and asked the stakeholder whether they believed the act was legal or not. Continue reading

Reda report: the good, the not-so-bad and the ugly compromise amendments

vote for the public domain

Back in April we published our list of the 10 worst and the 5 best amendments to Julia Reda’s draft report on the implementation of the InfoSoc Directive. Tomorrow the Legal Affairs committee (JURI) of the European Parliament will vote on these amendments to the draft report. In light of the upcoming vote and given that Julia Reda has just published the final voting list – including the compromise amendments – it is time for one last round of analysis.

As the name implies, compromise amendments are amendments the different political groups have agreed on as replacements of sets of (often contradictory) amendments related to a specific section of the draft report. Given that they reflect a partial consensus among some of the political groups, they are relatively likely to be adopted. If a compromise amendment (AMC) is adopted, the individual amendments that they replace are automatically rejected. If a CAM is rejected then all original amendments will be voted on individually.

In the following we are taking a quick look at the compromise amendments that deal with the issues we’ve previously highlighted. If you haven’t done so already, you may want to read our initial analysis first.

The Good

Three of our five best amendments have found their way into compromise amendments: AM 264 – which clarifies that what is in the public domain must stay in the public domain (in line with our policy recommendation #5 and with the Europeana Public Domain Charter) – has been subsumed into AMC 6, making it much more likely to be adopted. Having this compromise amendment adopted would be a significant win for the public domain. Continue reading

Copywrong website launched: help fix copyright

Today a new website was launched in the amp up to the vote on the Report on the Implementation of the InfoSoc Directive and its amendments on June 16 in the European Parliament’s legal affairs (JURI) Committee. The website aims to mobilise internet users to help save copyright reform at European level, in face of what is described as sabotage. It features a short film that explains in common language why copyright reform needed to make it functional in modern society:

The website, copywrongs.eu, also lists some of the most important amendements that need extra support during the vote. There is much to like on this list, including some reforms that are among our priorities: safeguarding the public domain, harmonising exceptions across Europe or providing a strong educational exception (which does not exist today). The list also includes ending geoblocking and speaks in favor of the right to quote to include video’s and sound recordings.

For more information on what is at stake in the vote, read our blogpost on the 10 worst and 5 best amendements on the Report.

The website was created by Pirate Party MEP Julia Reda (who wrote the Report) together with copy-me.org, a platform that shares information on culture and the information society. The site is available on GitHub for forking.

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.

London Manifesto: Copyright has to be fair

“We are calling for fair copyright that is fit for purpose and will benefit every European citizen” – that is the main message of the newly published manifesto, drafted by the Libraries and Archives Copyright Alliance (LACA), convened by the British Chartered Institute for Library and Information Professionals (CILIP). The London Manifesto is one more voice in support of a progressive copyright reform, raised in the ongoing European debate on copyright.

The London Manifesto (PDF) defines, in ten points, reforms that are necessary in order to make copyright fair for all stakeholders. These include:

  • Harmonised exceptions: Harmonisation and uniform application of copyright exceptions across all EU member states so that they apply regardless of media or technology.
  • Open norm: The addition of a new “open norm”, an open-ended exception subject to the three-step test, to avoid the current situation where European creativity and research cannot immediately benefit from technological innovations because copyright legislation is slow to catch up.
  • Right to lend: An automatic “right to lend” for libraries, to include the right to lend all digital media, including transferring digital files for a limited period.
  • Right to mine: An automatic right to perform computer analysis of copyright works for libraries, archives or their users whenever they have lawful access to the content. This recognises that the right to read includes the right to mine.
  • Mass digitisation: An automatic right for libraries, archives and museums to mass digitise their commercially unavailable research collections, and give online access across the whole of the EU without liability to compensate rightholders.
  • Standardised terms of protection for copyright: Swift and complete harmonisation of copyright durations across all member states.

The manifesto has been signed by 30 libraries and library associations, research institutions and organisations, including Communia.

The concept of a copyright system fair to all is an important one, and points to the need of more than just a balance of copyright norms. Fairness needs to be secured for all stakeholders, including those who are not in a privileged position in the copyright debate. We treat the manifesto as one more voice that opposes growing pressure from the cultural industry lobbyists, who believe that copyright reform should only serve to strengthen protection and increase financial gains for copyright owners.

COMMUNIA position paper on EU Digital Single Market

The aim of this position paper is to respond to the call made by European Commission to open public discussion on digital single market and its expected shape in the coming years.

We fully agree with President Juncker that we need to “break down national silos in copyright”. As was noted by President Juncker in his opening statement, one of the challenges standing in front of the Digitial Single Market is a modernisation of the  copyright rules in the light of the digital revolution and changed consumer behaviour. We fully support this position, which considers copyright a fundamental regulatory mechanism for a modern economy.

The current system of IP protection is not only over-complicated, but also unclear to all its stakeholders. Thus one of the goals of this modernisation should be a simplification of rules, and in particular a harmonisation across Member States and jurisdictions. Typically, harmonisation is mentioned with regard to territoriality and market fragmentation that affects commercial content. We want to point out that it is just as important to harmonise copyright rules that create freedoms for public institutions, certain uses beneficial to society (for example, educational and research uses) or for individual citizens.

These issues are often, wrongly, seen as of secondary importance, because of the fact that they are exceptions, functioning largely in non-market environments. Yet in the context of the Digital Single Market it is necessary to point out that there is also significant economic potential related to these user freedoms – for example in areas related to education, research or health care, not to mention SMEs and entrepreneurs. Proper copyright exceptions and limitations lead not only to greater user freedoms, but are also themselves significant added value. A broadly understood public domain is in this aspect similar to Public Sector Information, which is well understood in Europe to be a raw material, on which added value is created through re-use (provided that we provide adequate reimbursement to right holders where necessary and protect privacy and personal data).

Due to a lack of such harmonised exceptions across Europe, we not only miss out on potential economic and social gains. Different legal rules between Member States lead to uncertainty for anyone attempting to engage in cross border activities. Massive open online courses (MOOCs) are but one example of educational enterprises that could benefit from greater legal clarity in this regard.

For those reasons, we urge the Commission to expand and adapt current copyright exceptions and copyright limitations so that they serve public benefit in the digital, online environment. Furthermore, we ask that the Public Domain, a body of knowledge and heritage that can be freely used, is protected, strengthened and widened. We also believe that an open provision that ensures flexibility with regard to digital technologies and social practices should be introduced to support innovative business and civic developments. The following pillars could be the base for Digital Single Market reforms:

1. HARMONISATION OF EXCEPTIONS AND LIMITATIONS. Europe should harmonise exceptions and limitations of the Copyright Directive among the Member States and open up the exhaustive list so that the user prerogatives can be adapted to ongoing technological transformations. The limited list of Exceptions and Limitations established by the Copyright Directive restricts the possibilities to adjust the copyright system to the rapid pace of technological innovation that shapes how we interact with copyright-protected works. This not only limits the abilities of citizens to gain access to our shared culture and knowledge but also imposes restrictions for innovative business models, and as a result, economic growth. In the absence of open-ended exceptions such as a fair use clause it is imperative that exceptions and limitations can be adjusted to the needs of society at large and innovative economic actors in particular.

2. TERM OF PROTECTION. The term of copyright protection should be reduced. The excessive length of copyright protection combined with an absence of formalities is highly detrimental to the accessibility to our shared knowledge and culture. There is no evidence that copyright protection that extends decades beyond the life of the author encourages the production of copyright protected works. Instead, there is compelling evidence that the requirement to obtain permission for works by authors that have long died is one of the biggest obstacles for providing universal access to our shared culture and knowledge.

3. REGISTRATION. In order to prevent unnecessary and unwanted protection of works of authorship, full copyright protection should only be granted to works that have been registered by their authors. Non-registered works should only get moral rights protection. One of the unintended consequences of the near universal access to electronic publishing platforms is an increase in the amount of works that are awarded copyright protection even though their authors do not require or desire such protection. This extension of protection threatens to undermine the value and effectiveness of protection for works where copyright protection is necessary and desired.

4. LEGAL UNCERTAINTY. As a prerequisite for unlocking the cultural, educational and economic potential of the public domain, identification of works in the public domain should be made easier and less resource-intensive by simplifying and harmonizing rules of copyright duration and territoriality. The rules for establishing the duration of the term of protection of individual works have become so complex that it is almost impossible to establish with certainty whether a work is protected by copyright (including all neighboring rights) or whether it is in the public domain. This complexity in the system makes it very difficult to automatically calculate the status of a work. Two factors have contributed to this situation: the divergence of legislation between the different Member States, and a large number of (national) exception clauses. This situation can only be remedied by intervention on the European level, preferably by simplifying the rules and harmonizing them across Europe. The work on public domain calculators has highlighted the incredible complexity of copyright term rules which makes it very difficult to determine the copyright status of individual works. This means that one of the biggest obstacles to positively identifying public domain works (and thus unlocking their cultural, educational and economic potential) lies in the cumbersome process of determining the term of copyright protection.

5. DIGITAL REPRODUCTIONS. Digital reproductions of works that are in the public domain must also belong to the public domain. Use of works in the public domain should not be limited by any means, either legal or technical. The Internet enables the widespread re-use of digital reproductions of works of authorship whose copyright protection has expired. The public domain status of these works means that there is no owner of the works who can impose restrictions on their re-use. At the same time the owners of the physical works (such as heritage institutions) often feel that they are entitled to control over digital reproductions as well and that they can impose restrictions on their re-use. However, digitization of public domain works does not create new rights over it: works that are in the public domain in analogue form continue to be in the public domain once they have been digitized.

6. PUBLIC FUNDING OF DIGITIZATION PROJECTS. Digitization projects that receive public funding must at the minimum ensure that all digitized content is publicly available online. Allowing for the free redistribution of digitized content should be considered since it is beneficial for the sustainability of the access to digitized cultural heritage. When public funding is used for digitization projects it needs to be assured that the public benefits from these efforts. At the minimum this means that digital versions need to be available online for consultation by the public that has paid for the digitization effort. Public funding bodies should prioritize digitization projects that will increase the amount of our shared and culture that is available to the public. Memory institutions that receive public funding should consider making available digitized collections with as little restrictions as possible. Free availability of collections which includes the free redistribution and re-use of the digital artifacts will result in wider availability and reduce the risks inherent to centralized storage.

We would like to express our true devotion to support the above mentioned recommendations.

Since the European Commission encourages also sharing of graphical and multimedia elements, we would also like to submit a set of thematic postcards. Each one combines a treasure of European cultural heritage with one of our policy recommendations. The postcards are available here.

Copyright 4 Creativity releases copyright manifesto

Today Copyright 4 Creativity (C4C), a coalition of 35 organisations from the NGO, library and technology sectors (including a number of COMMUNIA members) is launching a copyright manifesto. The copyright manifesto is intended as a contribution to the ongoing review of the European Union’s copyright rules. With the manifesto, Copyright 4 Creativity wants to stress the importance of a copyright system that can ‘effectively promote innovation, access and creativity’.

The manifesto starts by outlining what is wrong with the current EU copyright framework and how this is negatively affecting users, businesses, innovators and – as a result – the competitiveness of Europe’s economy. In doing so, the manifesto touches on many concerns shared by COMMUNIA, including the fact that the current term of copyright protection is much too long and undermines access to knowledge and culture.

Based on the analysis of the status quo the manifesto calls for a substantial reform of the copyright rules in the EU and argues that such a reform needs to address 4 main issues. According to C4C the EU needs to: Continue reading