On his blog just before Christmas, Vice President Ansip made a case for a simple copyright law for education to help Europe’s teachers and students. While we can only support a simple copyright law that supports education instead of making it harder for educators to teach, the Commission did not propose such a solution in the directive. The Commission has limited the new exception to official ‘educational establishments’ and has written a preference for licenses over the exception in the text. By doing so they are leaving important parts of education behind.
Leaving important players behind
Ansip writes about the important transition from solely physical education to embracing digital technologies. In the process, the patchwork of exceptions to copyright for educational purposes across Europe blocks much innovation in education:
Unfortunately, there are many differences around Europe in how these exceptions are applied, especially when it comes to using copyright-protected material in digital or online teaching activities.
Digital technologies are transforming the teaching and learning environment. They are being used more and more throughout education: laptops in the classroom to show video clips, interactive whiteboards to display webpages, for example.
But current EU law does not properly address digital’s significant presence and influence in the learning environment. It needs to catch up.
This makes it strange that the Commission’s definition of ‘learning environment’ is so limited to official educational establishments in the proposed directive. Education is understood today as a lifelong process that is conducted by a multitude of institutions, and even learners themselves. This was noted in the Commission Communication ”Making a European Area of Lifelong Learning a Reality” and the subsequent Council Resolution of 27 June 2002 on lifelong learning. Yet, when defining copyright law, the European Commission fails to embrace its own lifelong learning approach by limiting the potential beneficiaries of the proposed exception to ‘educational establishments’.
In doing so, the proposed exception will leave unharmonised the digital uses for educational purposes made by other individuals and organisations, such as the great value that museums, libraries, archives, professional associations, and civil society organisations give to education. Think for example of education about the dangers of drugs that civil society organisations provide for teenagers, or the great educational programmes of libraries that help Europeans embrace their local culture. This limitation would also exclude employees, apprenticeships and practical learning as vocational education at their company, which is a key part of Europe’s lifelong learning goal.
Today we are publishing the fifth in a series of position papers dealing with the various parts of the European Commission’s proposal for a Directive on Copyright in the Digital Single Market (the previous papers dealt with the education exception, text and data mining, the press publisher’s right and freedom of panorama). The paper deals with article 13 of the Commission’s proposal which introduces a filtering obligation on online platforms that allow users to upload content (such as facebook, youtube flickr and many other online services). The proposal fails to establish clear rules for internet users that make it clear how they can share and remix content legally. Instead it introduces a filtering requirement for online platforms that can potentially serve as a censorship machine and will violate users’ fundamental rights and distort the existing legal framework. From our perspective article 13 and the related recitals should be deleted from the proposal (You can download a pdf version of the position paper here).
Position paper: Use of Protected Content by Information Society Service Providers
Article 13 of the European Commission’s proposal for a Directive on Copyright in the Digital Single Market attempts to address the disparity in revenues generated for rightsholders and platforms from online uses of protected content. The proposed article attempts this by introducing an obligation for “Information society service providers that store and provide to the public access to large amounts of works” to filter user uploads. It would also require these providers to set up licensing agreements with rightsholders.
These proposed measures, however, do not address the issue adequately; instead, they violate fundamental rights of users, contradict the E-Commerce Directive, and go against CJEU case law.
The measures proposed in the Commission’s proposal stem from an unbalanced vision of copyright as an issue between rightsholders and ‘infringers’. The proposal chooses to ignore limitations and exceptions to copyright, fundamental freedoms, and existing users’ practices. In addition, the proposal fails to establish clear rules with regard to how citizens can use protected works in transformative ways—such as remixes and other forms of so-called “user-generated content” (UGC). As a result, a system of this kind would greatly restrict the way Europeans create, share, and communicate online.
Traditionally, at the beginning of the new year we celebrated what is known as Public Domain Day: on the first of January of any given year the works of authors who have been dead for more than 70 years enter the public domain. As this is a decisive year for copyright reform in the European Union, it seems much more important to highlight the dangers for the public domain that we are facing in the context of the copyright reform process (you can refer to Wikipedia and the Public Domain Review for overviews of works that have entered the public domain this year).
While copyright reform generally has a positive connotation, it is important to realise that a reform does not mean that things will change for the better. As we have pointed out before, the copyright reform package presented by the Commission is extremely one-sided. And both the attempt to introduce a new right for press publishers, and the requirements for online platforms to filter user uploads, have the potential to cause a lot of damage to the public domain and the ability of users to access information and express themselves online.
Shrinking the public domain
When it comes to the public domain the proposal to introduce a new right for press publishers contained in article 11 of the Commission’s proposal is the most dangerous, as it has the potential to shrink the public domain. Our 2010 Public Domain Manifesto defines the public domain as being
… comprised of our shared knowledge, culture and resources that can be used without copyright restrictions by virtue of current law.
This definition implies that the scope of the public domain can change in response to changes of the legal environment. The most obvious would be changes to the duration of copyright protection. Lengthening the term of protection would shrink the public domain while shortening the term would grow the public domain (as we argue for in our policy recommendation #1). Continue reading
Last week a number of Europeana organisations representing libraries and other cultural heritage organizations released a joint response to the Commission’s copyright proposals. The paper, issued by LIBER, EBLIDA, IFLA, Public Libraries 2020 and Europeana, deals with those elements of the EU copyright framework that are directly relevant to cultural heritage institutions.
This includes four issues addressed in the Commission’s Proposal for a Directive on Copyright in the Digital Single Market (the exceptions for Text and Data Mining, Education, and Preservation copies, and the measures aimed at improving access to out-of-commerce works), and a number of issues that the Commission’s proposal fails to address, such as on-site access to collections and online document supply.
Exceptions are too narrow
The paper underlines that from the perspective of cultural heritage institutions, EU copyright reform needs to focus on updating and harmonizing copyright exceptions:
We believe that overall welfare is best served by a robust and mandatory set of copyright exceptions which facilitate access to knowledge.
Given this general approach it is not surprising the cultural heritage institutions share many of the same concerns we raised in our analysis of the Commission’s proposal. Continue reading
Today we are publishing the fourth in a series of position papers dealing with the various parts of the European Commission’s proposal for a Directive on Copyright in the Digital Single Market (see our papers on the education exception, text and data mining exception, and press publisher’s right). Today’s paper deals with the Commission’s handling of what is commonly known as “Freedom of Panorama”—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 (you can download a pdf version of the paper here). From our perspective this issue was not adequately addressed in the Commission’s proposal, and we ask the European Parliament to introduce a broad, EU-wide Freedom of Panorama right that applies to both commercial and noncommercial uses of all works permanently located in public spaces.
Position paper: Copyright Reform to Protect the Rights of Photographers and Painters
Public spaces in our cities and countrysides are a functional part of the commons, the places accessible to all members of society. These belong to the public and are not owned privately. The right to take and re-use pictures of our public spaces is critical for the arts, preservation of culture, and education. It is also highly relevant to freedom of expression. It forms the foundation upon which many European photographers, painters, and visual artists create art and earn a living.
The European Commission ran a consultation on this right, known commonly as “Freedom of Panorama”. The results of the consultation confirm that consumers, institutional users, service providers, professional photographers, and architects believe that making this right mandatory across the EU will have a positive impact on their activities.
In its communication published alongside the EU copyright reform proposal, the European Commission “confirms the relevance of this exception” and “strongly recommends that all Member States implement this exception.” Both Vice-President Ansip and Commissioner Oettinger have since publicly confirmed that there is a majority in the Council for such a mandatory right. Continue reading
Today we are publishing the third in a series of position papers dealing with the various parts of the European Commission’s proposal for a Directive on Copyright in the Digital Single Market (see our other papers on the education exception, text and data mining). Today’s paper deals with the Commission’s proposal to introduce new rights in publications available to press publishers for control over the digital use of their content (you can download a pdf version of the paper here). From our perspective, this new right will not only fail to increase publisher revenues, but also decrease competition and innovation in the delivery of news, limit access to information, and create widespread negative repercussions for related stakeholders. For this reason we argue that Article 11 (“Protection of press publications concerning digital uses”) should be removed from the proposal.
Position paper: New Rights for Press Publishers
Copyright already provides rightsholders with a broad range of protections over their creative works, typically lasting for the life of the author plus 70 years. However, the European Commission has proposed new rights in publications available to press publishers for control over the digital use of their content. This new right has been called many things, including a publisher’s right, ancillary copyright, link tax, Google tax.
The Commission’s proposal to introduce a right for press publishers falls outside the EU mandate to establish a Digital Single Market. The case for EU intervention is weak, as it does not meet the requirements of subsidiarity and proportionality. If adopted, the new right for press publishers will decrease competition and innovation in the delivery of news, limit access to information, and create widespread negative repercussions for related stakeholders. Continue reading
Today we are publishing the second in a series of position papers dealing with the various parts of the European Commission’s proposal for a Directive on Copyright in the Digital Single Market (see our first paper on the education exception here). Today’s paper deals with the Commission’s proposal to introduce a mandatory exception that would allow research organisations to conduct Text and Data mining for scientific research purposes (you can download a pdf version of the paper here). From our perspective this exception is much too narrowly defined and has the potential to stifle the potential of Text and Data mining as a key enabler of social and scientific progress in Europe. For this reason our paper argues for expanding the proposed exception to allow Text and Data Mining by anyone for any purpose.
Position paper: Copyright Reform to Facilitate Research and Innovation
Text and data mining (TDM) is “any automated analytical technique aiming to analyse text and data in digital form in order to generate information such as patterns, trends and correlations.” There is huge potential for text and data mining—in terms of scientific advancement and discovery, civic engagement, and economic activity and innovation within the Digital Single Market.
The European Commission recognizes that researchers encounter legal uncertainty about whether—and how—they may engage in text and data mining, and are concerned that publishers’ contractual agreements may exclude TDM activities. In addition, the Commission observes that the optional nature of existing exceptions could negatively impact the functioning of the internal market.
To rectify this situation the Commission proposes changes to existing rules “to ensure that researchers can carry out text and data mining of content they have lawful access to in full legal certainty, including across borders.” Continue reading
Today we are publishing the first in a series of position papers dealing with the various parts of the European Commission’s proposal for a Directive on Copyright in the Digital Single Market. Today’s paper deals with the Commission’s proposal to introduce a mandatory exception that would allow a limited number of beneficiaries to use works and other subject-matter “in digital and cross-border teaching activities” (you can download a pdf version of the paper here). From our perspective the proposal, while well intended, is a missed opportunity to provide the robust education exception that educators, students and everyone else engaging in educational activities, both online and offline, needs. For this reason the paper argues for the introduction of a mandatory exception for educational purposes that does not primarily focus on the type of person or institution doing the teaching, but rather on the educational purpose of the use, and that cannot be excluded by Member States if licensed content is available.
Position paper: Better Copyright Reform for Education
Exceptions and limitations to copyright for education should support necessary access and re-use of copyrighted content of all types in a variety of education settings, locally and across borders. Copyright needs to be reshaped to be fit for modern education—which spans the lives of learners, and takes place in a variety of formal and informal settings, online as well as off. In this context, exceptions and limitations should promote positive learning outcomes, and the rights of copyright owners should be balanced with the public interest. We also need to reduce legal uncertainty faced by educators that use copyrighted content.
What is proposed in the directive?
In the Proposal for a Directive on Copyright in the Digital Single Market, the European Commission proposes to introduce a mandatory exception or limitation to copyright for educational purposes. The exception only covers the acts of reproduction, communication to the public, and making available to the public of protected works and other subject matter made in the context of a digital use. The digital uses have to be made for the sole purpose of illustration for teaching. Recital 16 clarifies that all digital uses that “support, enrich or complement the teaching, including the related learning activities” are covered.
The exception is intended solely for activities “carried out under the responsibility of educational establishments”. The uses allowed must (1) take place on the premises of the establishment or (2) through the establishment’s secure electronic network, accessible only by its teachers and learners. The concept of educational establishment is not defined, but Recital 15 states that “all educational establishments in primary, secondary, vocational and higher education to the extent they pursue their educational activity for a non-commercial purpose” are covered. The noncommercial nature of the activity is a condition of the use, however “[t]he organisational structure and the means of funding of an educational establishment are not the decisive factors” to assess that. Continue reading
Earlier this week the JURI committee of the EP held the first hearing on the proposed Copyright in the Digital Single Market directive. This hearing officially kicks off the process through which the European Parliament will develop its position on the Commission’s proposal. The parliamentary process is shepherded by MEP Therese Comodini Cachia (EPP, Malta). According to a preliminary timeline published by her, the process will be completed before next year’s summer break.
Wednesday’s hearing (recording) focussed on one of the most controversial issues of proposed Directive, the measures for filtering and blocking user uploaded content contained in article 13. These are supposed to address a so-called “value gap” caused by online platforms that allow users to share content online. The Commission has bought into the rightsholders narrative, although evidence why these measures are necessary is still lacking.
The wrong answer to online creativity: privatised censorship and filtering
As our friends at EDRi have pointed out in painstaking detail, such an obligation to monitor and filter is at odds with other EU laws and with jurisprudence from the Court of Justice of the EU, and would negatively impact the freedom of expression online. Continue reading
Last week the CJEU handed down another judgement dealing with digital activities of libraries (see our take on the e-lending decision from 2 weeks ago here). In its judgement in the Doke & Soulier case (C 301/15) the court ruled that the French law on out-of-print books, which allows French publishers to publish digital editions of out-of-print books, violates the exclusive rights of authors as established by the InfoSoc directive. This means that the French scheme for making out-of-print books available (reLire) will either need to be modified or scrapped.
The judgement does not come entirely unexpected as it is largely in line with the Advocate General opinion from earlier this year. As we have already noted in our analysis of the AG opinion, the case has the potential to undermine Extended Collective Licensing (ECL), which is currently held as the solution for the issue of out-of-commerce works.
At this point it is unclear how the Doke & Soulier judgement relates to the EU Commission’s proposal for dealing with out-of-commerce works in the collections of cultural heritage institutions—currently a part of the proposal for a Copyright in the Digital Single Market directive. Regardless, the judgement casts a shadow of doubt over ECL arrangements such as the one at the center of the Commission’s proposal. This is mainly due to the fact that through this decision the court has established stringent criteria that national measures would need to fulfil. The fact that according to the court “every author must actually be informed of the future use of his work by a third party and the means at his disposal to prohibit it if he so wishes” (para 38) seems to contradict the very purpose of Extended Collective Licensing arrangements, which is to circumvent the need to clear rights on a per-work (or per-rightsholder) basis.
Can ECL still provide a solution for out-of-commerce works?
Looking at the reasoning of the court, it becomes evident that the judgement is not so much concerned with the operation of of ECL as a legal mechanism, but rather with the question of whether EU member states can limit the ability of authors to exercise their exclusive rights in ways other than those foreseen by the EU legislator. The court answers this with a resounding “no” and then goes on to examine whether the French system respects the ability of authors to object to the use of their out-of-print works. The court comes to the conclusion that it does not, because authors are neither individually informed about future uses of their works, and because their ability to opt out of such uses is limited. In summary, the court does not declare ECL in general incompatible with the InfoSoc directive, but has ruled, that the French ECL implementation does not sufficiently respect the authors’ exclusive rights. Continue reading