Leaked draft of Commission copyright white paper based on flawed assumptions

Earlier this week the IPKat leaked what appears to be an internal draft of the European Commission’s white paper on copyright policy reform (“A copyright policy for Creativity and Innovation in the European Union”). Once finalized this white paper is supposed to sum up the current Commission’s position on making European copyright policy fit for the digital environment. As such the white paper will build on work that has been undertaken during the last couple of years, which included the Licenses for Europe stakeholder dialogue, a number of studies commissioned by the commission and a public consultation on a review of the European copyright rules that generated more than 11 thousand responses.

The white paper has been keenly awaited by anyone engaged in discussions about the future of copyright in the EU. Unfortunately, the document – at least in the form of the leaked internal draft – is a massive disappointment for anyone hoping for a serious review of copyright in the EU. This white paper clearly shows that at the end of one and half years of discussion those in the Commission who do not see a need for reform have managed to maintain their position. The white paper makes almost no mention of a need for legislative reform at the European level and instead presents a disjoined array of measures mainly consisting of recommendations for more harmonization between the member states and some extra guidance from the Commission to the member states.

After having been told by their own studies that a new balance between the rights of creators and the rights of users is both necessary and possible, and after having received literally thousands of responses to the consultation arguing in favor of more user rights, the commission has come full circle back to its initial position: At the core of the white paper lies the notion that copyright is not broken and that most problems created by the current copyright rules can be fixed through the reliance on licensing, minor, negligible changes to existing law, and reiteration of enforcement mechanisms. Coincidentally, this is perfectly in line with the position advocated by traditional publishers and other rights holder representatives throughout the entire process.

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Make your voice heard to fix copyright in the EU!

As we have mentioned here before, the European Commission has launched a consultation on the future of European copyright policy. The responses provided to the questionnaire must be submitted by 5 February 2014 and will be used as a justification for future policy proposals from the Commission. If citizens and professionals don’t make their voice heard the outcomes of the consultation will likely be used to further limit citizens’ rights to create, share and access culture and to further weaken the public domain.

Fix copyright – take part in the consultation

In order to prevent this from happening, COMMUNIA has joined forces with a range of other NGOs and professional associations to produce a tool that helps citizens and professionals to respond to the consultation in a way that promotes access to culture and a strengthening of the the public domain. The results of this collaboration can be found at youcan.fixcopyright.eu.

The tool lets you filter the 80 questions from the consultation document based on a number of different personas (we have compiled selections for online users, parents, teachers/academics/researchers, freelancers/entrepreneurs/businesspersons, librarians/cultural heritage professionals, bloggers/remixers, disabled users and rights holders). There is of course an option to answer all questions. The website also provides background information and advice on how to respond to the questions.

If you care about a copyright system that promotes innovation and access to culture in the digital environment and if you care about the public domain, you should respond to the consultation today! You may also want to ask friends and colleagues to do the same.

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Commission announces public consultation on the review of EU copyright rules

Last week Thursday the European Commission launched its much anticipated public consultation on the review of the EU copyright rules. This consultation is the first visible sign of the second track of the Commission’s attempt to modernise the EU rules (the first track consisted of the rather unsuccessful Licenses for Europe stakeholder dialogue). In the words of the Commission the focus of the consultation is on:

… ensuring that the EU copyright regulatory framework stays fit for purpose in the digital environment to support creation and innovation, tap the full potential of the Single Market, foster growth and investment in our economy and promote cultural diversity.

With regards to the contents of the consultation, a first reading reveals a mixed bag of questions, with a surprising amount of them actually touching on issues that are closely related to our own policy recommendations. The consultation comes in the form of a 37 page document with a grand total of 80 questions that cover everything from the functioning of the single market for copyrighted works, linking and browsing, copyright term duration, registration of copyrighted works and exceptions and limitations for cultural heritage institutions, education, research, persons with disabilities and “user generated content”. In addition, there are questions about private copying and levies, the fair remuneration of authors and performers, respect for rights, and even the possibility of a single EU copyright title. Finally there is an open question for everything else that stakeholders might want to tell the Commission.

The deadline for providing answers to all of these questions is the 5th of February, which if one takes into account the upcoming holiday period is rather short. Continue reading

Responding to the European Commission consultation on PSI: Minimizing restrictions maximizes re-use

The Communia Association has responded to the European Commission’s consultation on recommended standard licenses, datasets and charging for the re-use of public sector information (PSI). The Commission asked for comments on these issues in light of the adoption of the new Directive on re-use of public sector information. See our response here. The Directive 1) brings libraries, museums, and archives under the scope of the Directive, 2) provides a positive re-use right to public documents, 3) limits acceptable charging to only marginal costs of reproduction, provision, and dissemination, and 4) reiterates the position that documents can be made available for re-use under open standards and using machine readable formats. Communia recognizes the high value of PSI not only for innovation and transparency, but also for scientific, educational and cultural benefit for the entire society.

We have been providing feedback to the Commission during this process. We last wrote about the Directive in June, and questioned why the Commission had not yet clarified what should be considered a “standard license” for re-use (Article 8). The dangers of license proliferation–which potentially leads to incompatible PSI–is still present. But it’s positive that the Commission is using this consultation to ask specific questions regarding legal aspects of re-use.

Part 3 of the questionnaire deals with licensing issues. One question asks what should be the default option for communicating re-use rights. We believe that there should be no conditions attached to the re-use of public sector information. The best case scenario would be for public sector information to be in the public domain. If it’s not possible to pass laws granting positive re-use rights to PSI without copyright attached, public sector bodies should use the CC0 Public Domain Dedication (CC0) to place public data into as close as possible to the public domain to ensure unrestricted re-use.

Communia calls on the Commission and Member States to ensure that core datasets are released for maximum re-use, either by exempting PSI from copyright and sui generis database rights altogether, or by requiring that these rights are waived under the CC0 Public Domain Dedication.

Another question first states that the Commission prefers the least restrictive re-use regime possible, and asks respondents to choose which condition(s) would be aligned with this goal. Again, we think that every condition would be deemed restrictive, since the best case scenario would be for PSI to be removed from the purview of copyright protection through law or complete dedication of the PSI to the public domain using CC0.

Some conditions would be particularly detrimental to interoperability of PSI. An obligation not to distort the original meaning or message of public sector data should be deemed unacceptable. Such an obligation destroys compatibility with standard public licenses that uniformly do not contain such a condition. The UK’s Open Government License has already removed this problematic provision when it upgraded from OGL 1.0 to OGL 2.0. Any condition that attempts to discriminate based on the type of use or user, or imposes additional requirements on the re-user, should be avoided. Examples include: 1) fees for cost recovery, 2) prohibitions on commercial use, modifications, distortion, or redistribution, and 3) unreasonable attribution requirements. Copyleft conditions can threaten interoperability with existing “attribution-only” standard licenses.

In addition to mentioning CC licensing as a common solution, the questionnaire notes, “several Member States have developed national licenses for re-use of public sector data. In parallel, public sector bodies at all levels sometimes resort to homegrown licensing conditions.” In order to achieve the goals of the Directive and “to promote interoperable conditions for crossborder re-use,” the Commission should consider options that minimize incompatibilities between pools of PSI, which in turn maximize re-use. As far as we are concerned that means that governments should be actively discouraged from developing their own licenses. They should consider removing copyright protection for PSI by amending copyright and/or PSI law or waive copyright and related rights using CC0.

Part 4 of the questionnaire addresses charging options for PSI re-use. While the Communia Association did not provide an opinion on this matter, Federico Morando, Raimondo Iemma, and Simone Basso have provided an in-depth analysis on the Internet Policy Review website.

Intellectual Property Rights do not equal Innovation and Creativity

The post below is cross posted from Kennisland (Kennisland is a COMMUNIA member).

Last month, the Office for the Harmonization of the Internal market (OHIM) and the European Patent Office (EPO) published a study on intellectual property rights intensive industries’ contribution to the economic performance and Employment in the European Union.

The study is modelled after a much criticized 2012 study published by the Department of Commerce and the US Patent and Trademark Office that attempted to measure the impact of IPR intensive industries on the US economy. Both studies come to similar conclusions, namely that IPR intensive industries make significant contributions to overall employment and GDP in the surveyed economies. For the European Union OHIM and EPO claim that:

IPR-intensive industries contribute 26% of employment and 39% of GDP in the EU. (page 6)

The study could be read to imply that without IPR one quarter of us would be out of work and that the EU would suddenly lose more than a third of its economy. Although it is fairly obvious that this is rather unrealistic, it did not prevent EU Commissioner (and noted copyright hawk) Michel Barnier from jumping on the opportunity to express once more how important he thinks that IP rights are:

“I am convinced that intellectual property rights play a hugely important role in stimulating innovation and creativity, and I welcome the publication of this study which confirms that the promotion of IPR is a matter of growth and jobs. It will help us to further underpin our evidence-based policy making.”

Unfortunately, this particular study has almost nothing to do with evidence-based policy making. On the contrary, the study represents one of the more brazen attempts to mislead the public (and policy makers) by throwing lots of data around and calling that evidence. Continue reading

Hugenholtz & Hargreaves on Modernising the European Copyright Framework

Last week the Lisbon Council published a new Policy Brief on Copyright Reform for Growth and Jobs: Modernising the European Copyright Framework. In the policy brief Ian Hargreaves and Bernt Hugenholtz draw up an agenda for copyright reform in the European Union by proposing a menu of policy options that could be implemented relatively quickly.

Copyright reform?

Hugenholtz and Hargreaves start their policy brief by looking at the current situation in Europe, and they do not like what they see: Not only do they consider Europe’s copyright framework to be out of touch with an economy that is shaped more and more by the impact of digital technologies, they are also skeptical about what currently passes for copyright reform in the EU:

In December 2012, the European Commission vowed “to ensure that copyright stays fit for purpose in this new digital context” after a key orientation debate convened by President Barroso. […] As practical steps, the Commission offered two parallel tracks of action. The first, already underway, is a “stakeholder dialogue” to address six issues […]. A second track of work is to arise from a series of market studies, impact assessment and legal drafting work “with a view to a decision in 2014 whether to table legislative reform proposals.”
How does this emerging European approach to reform look in a global context? The answer is it looks rather cautious, given the continued pace of technological change and the increasing indications that other countries are ready to pursue more rapid and more radical reform. History also suggests that Europe will struggle to achieve the political momentum needed to deliver even the modest and piecemeal change of the type currently under discussion.

We have already pointed out the flaws of the Licenses for Europe approach here, so we could not agree more. While the Commission directs critics of the stakeholder dialogue to the parallel review of the EU legal framework that the Commission is currently undertaking, there is very little reason to believe that this will result in any substantial reform agenda. In this situation Hugenholtz and Hargreaves see an urgent need for reform that is both effective and can be implemented within the existing European and international frameworks: Continue reading

EU Presidency proposes compromise on draft Directive on collective management of copyright

The proposal for a Directive on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online uses in the internal market is now awaiting first (and single) reading by the European Parliament (indicatively foreseen in November). According to the European ordinary legislative process (the Directive proposal is following the ordinary codecision procedure), the Parliament is asked for its opinion on the proposed legislation before the Council adopts it. In the framework of the inter-institutional dialogue, the Conciliation Committee of the Council of the European Union issued a compromise text (aka ‘Presidency Compromise’) aiming at reconciling the positions of the EP and of the Council.

The Compromise text was adopted in early April (to our knowledge, it has not been widely circulated but has been made available online by the Austrian Parliament). The adoption of this text at a rather early stage of the legislative procedure, suggests that a possibility of a conclusion at first reading exists. However, it does not take account of the draft reports released by the Parliamentary Committees a few weeks after. As we highlighted earlier, the opinion drafted by MEP Helga Trüpel for the CULT Committee shares some core arguments with Communia’s policy. The deadline for tabling amendments on the leading Committee’s report (JURI) is June 6th.

It is thus interesting to look more closely at the content of the Compromise text to have a better idea about what the Council would be ready to vote for at the present time of the procedure (more than the Parliament insofar as the guessing about the final parliamentary vote is very uncertain at this stage of the procedure), although new matters of discussion may arise during the amendment and ‘lobbying’ period. Continue reading

European parliament starts discussing the proposed Directive on collective management of copyright

The European Commission’s Proposal for a directive on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online uses in the internal market is slowly progressing through the legislative process in Brussels. As part of this no less then five committees of the European Parliament (Legal Affairs, Culture and Education, Industry, Research and Energy, Internal Market and Consumer Protection and International Trade) are in the process of forming their opinion on the proposal.

At this stage the draft opinions written by the rapporteurs for the four non-leading committees have been published. These opinions take the form of amendments proposed to the text of the directive (sometimes these are accompanied by short justifications).

In our policy paper from January we identified two main issues with the proposed directive: The first one concerns the transparency of repertoire information that has to be provided by collective management organisations and the second concerns the relation between collective management and open content licenses. In our analysis the proposed directive fails to sufficiently address these two issues.

We are happy to see that among the four published opinions the draft opinion of the Committee on Culture and Education authored by Helga Trüpel shares the concerns voiced in our policy paper. In the introduction of the document she writes:

The Rapporteur would like to stress that rightholders should have the possibility to make their works available under an open content license of their choice, for instance under Creative Commons, without necessarily opting out from the collective management system.

Furthermore, the Rapporteur would like to give even more flexibility to rightholders in the management of the rights. CMOs should provide accurate repertory information, in particular for works falling into the Public Domain. CMOs should ensure that the information in respect of the works whose term of protection terminates is accurate and regularly updated, in order to exempt such works from licensing and avoid claims to be enforced by CMOs in that regard.

In the following we take a closer look at the relevant amendments contained in the draft opinion of the Committee on Culture and Education:

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Open Letter regarding the Commission’s stakeholder dialogue on text and data mining

In January Communia was invited to participate in the European Commission’s ‘Licenses for Europe‘ stakeholder dialogue. This stakeholder dialogue is one part of the Commission’s agenda to ‘modernise copyright in the digital economy‘. Communia participated in Working Group 4 on Text and Data Mining for Scientific Research Purposes.

Unfortunately the first meeting of this working group which took place on the 4th of February in Brussels did not live up to the expectations raised by the Commission’s earlier announcement. It quickly became evident that the stakeholder dialogue is based on a flawed assumption (‘more licensing will bring copyright in line with the requirements of the digital economy’) and that the process was designed to prevent a serious discussion about how to unlock the potential of scientific text and data mining.

Given this the participating organisations representing academia, researcher community and civil society (including Communia), have decided to make these concerns public in the form of an open letter to the Commissioners Barnier, Geoghegan-Quinn, Kroes and Vassiliou (re-published at the end of this post). The letter which was published today raises a number of concerns that need to be addressed before the stakeholder dialogue on text and data mining can continue.

Chief among these concerns is the belief that in order to have an open discussion about the reform, possible solutions cannot be limited to licensing. From our perspective text and data mining cannot be solved by re-licensing texts to libraries, researchers or the public. What Europe needs is clarity that text and data mining works that are lawfully available does not require permission by rights holders. A stakeholder dialogue that simply declares this position off limits can hardly be called a dialogue at all. In the case of Public Domain content, there is a risk that a focus upon licensing will lead to unlawful re-licensing of content that is out of copyright.

In addition the whole process needs to become more transparent and needs to include all stakeholders (including academics and the Commissions own Research and Innovation Directorate General, which is currently being limited to attend as an observer).

The open letter has been published in the hope of getting the Commission to change the terms under which the stakeholder dialogue is being conducted. Should this not be the case, Communia and the other organisations that have signed the letter are very likely to step away from the dialogue. As the list of supporting signatories shows this is supported by a growing number of academics who are rightfully concerned about the prospects for conducting data driven research in Europe. Continue reading

COMMUNIA policy paper on proposed Directive on collective management of copyright

Today the COMMUNIA International Association presents its sixth policy paper. The paper is a reaction to the European Commission’s proposal for a directive on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online uses in the internal market.

The COMMUNIA Association welcomes the European Commission’s efforts to modernise collective management in Europe by providing rules for multi-territorial licensing of rights in musical works for online uses, and more generally by increasing the standards for transparency and accountability of Collective Rights Management Organizations (CMOs) operating in Europe.

Copyright management plays a central role in determining legal certainty for the digitisation of the European cultural heritage and for enabling an accessible and reusable digital Public Domain. This proposed directive intervenes at a crucial moment in the evolution of the information society and in the history of the European copyright system, where innovation and public access to knowledge should be a priority of policy-making.

The policy paper draws attention to two issues where the proposal should be improved. The first one concerns the transparency of repertoire information. We consider the proposed measures not sufficient and suggest an amendment to require that CMOs must provide this information more widely. The second issue concerns the relation between collective management and open content licenses. In our opinion, the proposed directive fails to address the existing incompatibilities between the collective management of rights and open content licensing.

The full COMMUNIA Association reaction on the Directive proposal on Collective Management of Copyright can be downloaded here. For further information about the paper please contact the COMMUNIA Association at communia DOT association AT gmail DOT com.