7 reasons why the European Parliament’s vision of copyright reform is more progressive than the Commission’s

Schaatsenrijden in een dorp
The Commission has opted for a safe approach
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While at this stage almost everyone agrees that the EU’s 2001 Copyright Framework is outdated and needs to be reformed, there is a very broad spectrum of ideas of what such a reform should look like. Recently, two of the three EU legislative bodies (who will need to agree on the final outcome) have laid their cards on the table: on the 9th of December 2015 the European Commission presented its long-awaited communication on copyright ‘Towards a modern, more European copyright framework‘ (our comments can be read here), and on the 19th of January the European Parliament followed up with a report on how to achieve a Digital Single Market Act (our opinion on the document is presented here). Next, the Commission will come up with specific legislative proposals before the summer, which will then need to be approved by the Parliament.

In this situation it is interesting to compare the overall positions of these two actors. From our perspective the Parliament’s approach to copyright reform is more progressive.  This is because the Commission has opted for a safe approach that proposes only minimal changes to the existing rules, whereas the Parliament put forward a number of more interesting and substantial ideas on the direction of the reform:  

  1. The European Parliament calls for abolishing the failed Directive on Databases, since the directive is considered to be an impediment to the development of a European data-driven economy. On the other hand, the Commission’s communication doesn’t even mention any changes related to the  Directive. The Parliament’s recommendation would set a positive precedent in abolishing IP rights if they do more harm than good.
  2. Creative Commons licences are perceived by the Parliament as digital forms of collaborative work and communication that should be be taught and applied across national and linguistic borders in education and training, in public research establishments, and to be promoted in public procurement procedures. Such an approach to open licences will strengthen open culture and open knowledge, and is in our opinion worthy of consideration by the Commission, which omitted the issue of open licensing in its communication.
  3. The Parliament encouraged the Commission to examine whether potential issues related to online platforms could be resolved by proper and full implementation of existing legislation and effective enforcement of EU competition law. The Parliament stressed that the limited liability of intermediaries is essential to the protection of the open internet; this is which is coherent with Communia’s approach. But the Commission’s recommendations seem to be more willing to put additional obligations on intermediaries and to change legislative framework, which was demonstrated in the way the Commission’s consultations on this issue was developed.  
  4. The Parliament wants to introduce the rule of free accessibility (a.k.a. open access) of research results which are at least 50% publicly funded. Such approach is very progressive since none of EU member states have thusfar introduced such a rule on a general scale. Currently, provisions promoting open access to scholarly research can be found as requirements in public procurement procedures and some grants programs, but not in national policies.
  5. The Commission and the Parliament have different approaches to text and data mining (even while both agree that TDM should fall under an  exception to copyright to avoid uncertainties in the research community). The Commission wants to allow public interest research organisations to carry out text and data mining of content they have lawful access to, with full legal certainty, for scientific research purposes. However, the Parliament’s suggestion does not include the  limitation to engage in text and data mining only for  “scientific research purposes”. The Commission’s approach would cover an extremely limited set of beneficiaries, and endorse a licensing-based approach instead of creating a harmonized exception for the benefit of researchers across the EU.
  6. The Parliament warns that everyone shall be cautious against indiscriminately promoting the issuing of mandatory pan-European licences as a tool to deal with geo-blocking, since this could lead to a decrease in the types of content made available to users. The Commission seems not to see such a threat, and is willing to give rights holders and distributors the freedom to reach an agreement on licences that would allow for cross-border access to content. Once again, the Commission seems to believe that licencing is the answer to almost all of the challenges surrounding this issue.
  7. According to the Parliament, fundamental rights such as freedom of expression and privacy are among the factors that should be taken into consideration while shaping a comprehensive copyright framework. In addition, the Parliament wishes to explore fair and appropriate remuneration for creators and other rights holders, economic growth, competitiveness and enhanced consumer experience. For the Commission, protection of fundamental rights only matters while discussing enforcement mechanisms.

Without a doubt, the Parliament’s report could have been more progressive by tackling issues such as the threat of ancillary copyright for press publishers, or the need to safeguarding the public domain. And of course the Parliament’s report only provides suggestions for the ongoing reform discussions— the Commission is not required to take the opinions expressed by the Parliament into account when drawing up their proposals. Nevertheless, we hope the Commission will seriously evaluate and integrate some of the Parliament’s proposals. If they do so, it will go a long way in  helping create ‘a more modern, more European copyright framework’, and not simply a temporary remedy for current problems.

The European Parliament and its path toward a Digital Single Market Act

Children of the Sea
The call to abolish the failed database directive is the highlight of the report
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Creating a fully integrated Digital Single Market (DSM) is one of the main priorities of the current European Commission. The commission has outlined its general approach in last years Digital Single Market communication (which we have discussed here). In reaction to this communication the European Parliament has been working on a report. The report on achieving a Digital Single Market Act, as adopted jointly by ITRE and IMCO Committees on 14 December 2015, was discussed and voted on by the European Parliament on 19 January 2016.

Since the report deals with issues related to the copyright framework of the European Union (among many others, such as boosting access for consumers and businesses to digital goods and services, developing the conditions for digital networks and services to prosper, and making the best of the growth potential of digital economy) Communia perceives the discussion on the document as another step in the ongoing processes related to to tearing down digital boundaries that still exist in Europe. The document is also a “demand” for the what should be contained in the Commission’s 2016 legislative proposals.Continue reading

Challenges and problems of EU consultation on copyright

Clear Weather with a Southerly Wind
The Commission should not impose its own objectives and agenda during the consultation period.
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This post was written by Agnieszka Vetulani-Cegiel. 

The European Commission is willing to cooperate with interested parties (i.e. civil society, interest groups, stakeholders, other entities). The open attitude of the Commission is demonstrated by the inclusion of these parties in the policy-making process, and in work on legal mechanisms. This situation is beneficial to both sides. For the interest groups, it is an opportunity to participate in the policy-making process and to influence EU policies through advocacy and lobbying. For the Commission, it is a way to learn about stakeholders’ views, to earn their support for its actions, and to obtain input to possible legislative proposals.

A big debate on the transparency of the EU policy-making process was triggered by the issuing of the White Paper on European Governance. As a result, since 2001, a range of standards and principles covering the transparency of the policy-making process—as well as relations with ‘interested parties’—has been adopted. Also, the Transparency Register, the Register of Expert Groups, and the Comitology Register were established.

The Commission recently issued a new document called the Better Regulation Guidelines. The Better Regulation initiative aims at making EU action more effective by ensuring that “policy is prepared, implemented and reviewed in an open, transparent manner, informed by the best available evidence and backed up by involving stakeholders”. The Guidelines cover the whole policy cycle: from policy design and preparation, to adoption, implementation (transposition, complementary non-regulatory actions), application (including enforcement), evaluation and revision, and include inter alia Guidelines on Stakeholder Consultation (Chapter VII).

The objective of the Stakeholder Guidelines is to complement and further define the scope of the General principles and minimum standards for consultation set in 2002. It is worth mentioning that a lot of attention has been paid to the mapping of different categories of stakeholders taking part in the EU consultation. It is stated, also, that “open, internet-based public consultation” is mandatory for initiatives with impact assessments, evaluations, fitness checks and Green Papers. The consultation needs to run for at least 12 weeks. Moreover, the Guidelines provide that stakeholders must be enabled to give feedback on the following aspects: roadmaps for evaluations and fitness checks (4 weeks), roadmaps, inception impact assessments (indication of time to be provided after publication), draft delegated acts (4 weeks), draft implementing acts (4 weeks), legislative or policy proposals adopted by the College and, where applicable, the accompanying impact assessments (8 weeks).Continue reading

Copyright Communication: the good, the bad, and the ugly

Het brood der toekomst wordt strijdend gewonnen
Copyright reform: the long struggle ahead
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Yesterday, the European Commission published its long awaited communication on copyright. The document titled ‘Towards a modern, more European copyright framework‘ doesn’t contain many surprises, which is both due to the fact that it is largely identical to a draft version that was leaked at the beginning of November, and that the Commission has opted for a safe approach that proposes minimal changes to the existing rules.

The latter is confirmed by the proposal for a regulation ‘on ensuring cross-border portability of online content services in the internal market’ that the Commission published alongside the Communication. In the light of the Commission’s earlier statements that it wants to create a digital single market, this proposal is a huge disappointment as it only covers access to online services while users are temporarily outside of their ‘Member State of residence’. It does nothing to address the much more important problem that copyright-protected works that are available to citizens of some member states are not available to users in other member states (the Commission promises to ‘address’ this issue in 2016 through a number of market led interventions, suggesting a slow policy crawl against geoblocking).

Ensuring that paid-for subscriptions to content continue to work once the paying customer travels to another member state is nice, but it does not constitute a digital single market. The proposed regulation on cross border portability will put an end to one of the most annoying consequences of a territorial copyright system. But by making the system a little more bearable the this move can also be expected to further entrench the reality of territorial markets.

The fact that enabling portability requires a legislative intervention on the EU level speaks as much to the growing imbalance of the copyright system as it does to the inability of the Commission to deliver on the digital single market promise. Even though this intervention seems to be rather minimal, rights holders are already complaining about the Commission’s proposal, and it will be interesting to see if the Commission will be able to make good on its intention to shepherd the proposal through Parliament and Council within the next year so that it can come into effect in 2017.

The rest the communication does not contain any concrete proposals, but rather identifies areas where the Commission is planning legislative (and non legislative) interventions in 2016. As mentioned above, the text of the communication is largely identical to the leaked draft which we have analysed here. In the following section we will highlight the good, the bad, and the ugly parts of what the Commission is planning for 2016.Continue reading

Securing user rights in education – reflections from our policy debate.

De eerste schooldag
Both copyright reform and voluntary licensing secure user rights in education
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How to secure user rights in education? This was the question we asked during a policy debate organised by Communia and hosted by MEP Michał Boni in the European Parliament on the 17th of November. Panelists, politicians and stakeholders participating in this debate discussed two approaches: the creation and use of Open Educational Resources (OER), and a progressive copyright reform for education.

While these issues are usually presented separately, as Communia we see them as two aspects of a single effort to ensure user rights in education. This two-path approach has been acknowledged at least since 2013, when the Creative Commons community argued that the movement behind open licensing policies needs to be involved in the copyright reform debate as well. Today in Europe, we are facing both developments related to OER policies (related to the Opening Up Education initiative, launched in 2013), and a copyright reform process in which education has been highlighted by the EC to be one of key areas for modernisation of copyright.Continue reading

European People’s Party on copyright reform: or, how to use licenses in 100 creative ways

representation of Last Judgement, with the archangel Michael weighing the souls (or dividing the blessed and the damned)
The EPP group seems to be in favor of preserving the status quo
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Copyright reform is one of the most vividly-discussed topics in European Union in last few weeks. After the leak of the European Commission’s communication, the political parties did not wait long to take a stand in the debate. Socialists and Democrats opted to listen instead of presenting their own ideas, and organized a conference on limitations and exceptions, and geoblocking. The event was held in the Parliament on 19th November.  

On the other hand, the European People’s Party (EPP Group), the largest party in the European Parliament, issued a rather uninspiring position paper on copyright. Many wondered whether the document would present a more progressive stance on copyright reform than what we’ve seen so far from the Commission. And the answer is simply: No.

On an ideological level, the document starts with a really promising message and tone. The EPP Group claims that the most important issue is “a balanced approach on copyright” to accommodate needs of creators and consumers alike. We cannot agree more. But after stating this introduction, the EPP focuses only on creators’ rights, and presents their ultimate goal as ensuring the growth of the creative sector, leaving the issue of public domain out. It’s even more alarming that according to the EPP the only way to preserve cultural diversity in Europe is “ensuring a high level of copyright protection”.

In one sentence,  the EPP Group advocates for “a copyright system that promotes investments, the efficient functioning of value chains between authors, creators, performers, producers, publishers, journalists, intermediaries, service providers, consumers and users”. Apart from the obvious fact that culture cannot be reduced to value chains (or value trees for that matter), it is impossible to understand what they mean when they mention the needs of consumers and users, since these stakeholders have not been well represented in considering a balanced copyright reform.

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EU consultation on online platforms – your voice counts!

Vrouw met spreektrompet
Don't mess with the right to link!
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As part of its effort to build a digital single market and to modernise the European Copyright rules the European Commision is currently running an online consultation on the ‘Regulatory environment for platforms, online intermediaries, data and cloud computing and the collaborative economy‘. As the name suggests this consultation bundles an enormous amount of issues into a single consultation. This monster consultation consisting of at least 115 questions depending on which type of user you are, hides a number of questions that can have huge impact on the shape of the future EU copyright framework and determine how we share and collaborate online.

These questions relate to the regulatory framework for online platforms, a term that is defined so broadly by the consultation that covers wide swaths of the Internet:

“Online platform” refers to an undertaking operating in two (or multi)-sided markets, which uses the Internet to enable interactions between two or more distinct but interdependent groups of users so as to generate value for at least one of the groups.

In other words, the Commission asks questions about platforms and services like SoundCloud, Wikipedia, YouTube, Flickr, Facebook, Snapchat, Instagram, Twitter and many others, that have become central in how European citizens communicate with each other and express themselves. Changing the regulatory framework that applies to these platforms will have far reaching consequences for all of us. In this light it is very disturbing that these questions are hidden in a consultation that appears to be designed to discourage responses from citizens. Continue reading

Leaked copyright communication: A more modern copyright framework for Europe?

Routekaart voor de beroemde plekken in Ise
Copyright quo vadis?
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On Tuesday the European Commission published a roadmap outlining the next steps in their effort to modernize the EU copyright rules. The (not entirely unexpected) main takeaway from this roadmap is that the Commission is retreating from its earlier announcement that it will present a comprehensive legislative proposal for copyright modernisation before the end of 2015.

Instead the Commission will address the modernisation of copyright via a series of interventions, starting in December with a “Communication on copyright which will provide a comprehensive overview of the main issues to be tackled in order to ensure the proper functioning of the copyright marketplace, in particular in the online environment and in a cross-border context”. This communication will come together with two legislative proposals, the first dealing with the (long overdue) implementation of the Marrakesh Treaty, and the other about cross-border portability of content. In a second phase – currently promised for ‘Spring 2016’ – the Commission plans to present additional measures, including legislative updates of the InfoSoc directive.

Announcements about announcements

The rest of the roadmap consists of a fairly unstructured discussion of what might possibly be contained in the December consultation, and an extensive description of the available evidence, including the highly contentious outcomes of the 2013/2014 copyright consultation and the ongoing consultations on online platforms and the SatCab directive. But at its core the roadmap does not constitute much more than an announcement of the December communication, which in turn will be an announcement of legislative and non-legislative interventions.

Fortunately, we can ignore the rather vague roadmap and jump straight to a leaked draft of the actual communication published on Thursday by the IPkat. The draft appears to be fairly recent and is scheduled to be adopted by the Commission on the 9th of December. It is also a much more coherent document that provides us with a relatively clear overview of the Commission’s ideas of how ‘a modern, more European copyright framework’ should look. Continue reading

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

Een violist en een fluitist musicerend
ACS: a viable solution for creators and users?
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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. Continue reading