New study explores possible effects of counterproductive press publisher’s right

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At the end of December we published a position paper on the Commission’s proposal to introduce new rights in publications available to press publishers for control over the digital use of their content. The right would apply for 20 years, and would also apply retroactively to content already published. From our perspective, the press publishers’ 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.

Today, OpenForum Europe published a paper written by Prof. dr. Mireille M.M. van Eechoud which analyses the press publisher’s right (they call it “PIP”, for short). The study examines the justifications for the proposed press publisher’s right, and assesses how it would fit in the EU copyright framework. (Read full paper here)

The report echoes the skepticism (and dearth of evidence) about whether an additional right would even be able to address the challenges faced by press publishers today:

Neither the Impact Assessment nor the Commission Communication explains in what way the introduction of an additional layer of rights would facilitate the clearing of rights for online uses and reduce transaction costs for all stakeholders concerned. The claims that are made about the causal relationship between the introduction of a publisher’s intellectual property right, increasing revenues and a sustainable press leading to media diversity, are not substantiated with data.

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Ansip is forgetting about important parts of education

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Leaving important educational players behind
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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.

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Join us in the fight for good copyright for education

Johan de Witt 's nachts op straat aangevallen
Copyright should facilitate education
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COMMUNIA organised the first meeting of our new project ‘Copyright for Education’ at the beginning of December. We invited over a dozen stakeholders and experts from the education field, from organisations such as Wikimedia Deutschland and the Reading and Writing foundation. One of the essential questions of the meeting was how can we collaborate for a better copyright for education. We want the broad education sector to have a voice in the current copyright reform.

The transformation of education

Participants in our meeting discussed how technological developments have opened a lot of new opportunities for educators. It has become easier to share and collaborate with one another, even when you are miles apart – as proven by the European eTwinning project. Many organisations and schools are already working on transforming education in the digital age. They are adapting the mindset of Erasmus, the European exchange program that enables EU students to study abroad, to the way they share, teach and collaborate.

Yet copyright does not adapt quickly enough to keep up. Everyone at our workshop was able to share concrete examples of copyright problems in education from their own experience. For example, for many teachers it is unclear if and how they can share material as simple as a poem. They do not always know if they can link it in an email sent directly to their students or should put the link in the closed network of the school. We cannot simply attribute this to a lack of knowledge on copyright. Copyright should be clear and consistent, so that you do not have to be a copyright expert alongside being a teacher.Continue reading

Communia at WIPO: copyright needs to empower teaching and learning

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Fixing copyright at WIPO
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The bi-annual meeting of the World Intellectual Property Organization (WIPO) Standing Committee on Copyright and Related Rights (SCCR) took place last week in Geneva. Teresa Nobre and Alek Tarkowski participated in the meeting on behalf of Communia, which has observer status. We were particularly interested in the debate on exceptions for education.

As Communia, we have until now focused our policy work on the European Union (albeit we were present at WIPO, as observers, briefly for debates on the public domain in 2012). We decided to start attending SCCR meetings in order to address the issue of good copyright for education also at global level. We hope that we can contribute to set out a global education exception.

In Geneva, we joined a broad coalition of civil society organizations and groups, and representatives of public interest institutions such as libraries or archives that have been participating in these meetings. Our particular focus is on education, an issue that until now has not been strongly represented by civil society observers at WIPO. We are hoping to change this situation. Delia Browne, who represented Creative Commons as a representative of Creative Commons Australia, joined us at the meeting.

The issue of exceptions and limitations to copyright has been on the WIPO agenda for years. In 2013, the Marrakesh Treaty was signed, requiring all WIPO members to provide a domestic copyright exception that allows the creation of accessible versions of books and other copyrighted works for visually impaired persons. The exception secured by the treaty is an important win, and a clear evidence that a global copyright standard that supports public interest can be established through the WIPO process.Continue reading

CJEU ruling in Doke & Soulier case emphasizes the need for a real solution to the out-of-commerce problem

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Universal access to out of commerce works now!
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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

CJEU on e-lending: The right to lend books includes the right to lend electronic books.

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The right to lend is the right to lend!
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Yesterday the Court of Justice of the European Union delivered good news in a case that that eagerly watched by Librarians across the Europeana Union. In its judgement in the case VOB vs Stichting Leenrecht (C-174/15 – press release here) the court ruled that rental right and lending right directive also covers e-lending. This is good news for libraries and their users as this means that (within certain limits) libraries can lend out e-books on the same legal basis as they lend out paper books. Prior to this judgement it was generally assumed that e-lending was not included in the scope of the rental right and lending right directive and as a result public libraries wishing to lend out e-books had to conclude licenses with publishers in order to do so.

Yesterday’s judgement came out of a reference to the CJEU in the context of proceedings brought by the Association of Dutch Public Libraries (VOB) which held the view that libraries are entitled to lend e-books included in their collections according to the principle “one copy one user”. This view was not shared by the Dutch government which has passed legislation based on the premises that the digital lending of electronic books does not come within the scope of the exception provided by the rental right and lending right directive.

The VOB wants libraries to allow users to download an electronic copy of a work included in the collection of a library while ensuring that  – as long as that user can access that copy – it is not possible for other library users to download another copy. At the end of the e-lending period, the copy downloaded by the first user would become inaccessible, and as a result another lender can download a separate copy. Continue reading

The Copyright Reform – a Guide for the Perplexed

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Copyright so complicated
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The debate whether the copyright reform in a proposed shape would be beneficial for Europe or not is now a key topic for digital rights organizations. But what do measures suggested by the European Commission actually mean? COMMUNIA and EDRi have jointly developed a Copyright reform guideline to the “legalese” of the draft directive. We present key issues and solutions that should be taken into consideration by the Members of the European Parliament (MEPs) who will soon discuss the proposal.

We believe that the current reform is a chance to empower users across Europe to access culture in ways that have been proved not to undermine authors’ revenues. This would boost the creation of new business models that will support authors, creators and journalists, and not only powerful intermediaries such as book publishers and record companies.

The copyright reform should also safeguard freedom of expression and privacy by curbing the surveillance capacity of filtering technologies. The Commission’s proposal fails to take advantage of these opportunities to secure a better future for Europe and European culture.

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VIDEO: experts on how to make copyright work again

Can we make copyright serve users better? We asked several copyright policy experts from civil society organisations for their view on the current copyright reform: what are the biggest hopes, the biggest fears and their concrete plans to improve the current copyright regime to fit our digital society? Film maker Sebastiaan ter Burg created the video below to share their answers:

The video was recorded during the event Copyright Reform: Unlocking copyright for users co-organised by COMMUNIA and EDRi and co-hosted by MEPs Therese Comodini Cachia and Carlos Zorrinho.

We would like to thank Diego Naranjo (Edri), Raegan MacDonald (Mozilla), Dimitar Parvanov Dimitrov (Wikimedia), Ruth Coustick-Deal (OpenMedia), Till Kreutzer (IGEL) and Gwen Franck (Creative Commons) for their contribution to this video.

CopyrightExceptions.eu: much needed insight into EU exceptions patchwork

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Harmonisation can solve the puzzle
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This week COMMUNIA founding member Kennisland launched CopyrightExceptions.eu, a website that collects information related to the national implementation of 22 exceptions and limitations to copyright in the EU Member States. CopyrightExceptions.eu provides much needed clarity of the current patchwork state of implementations of the exceptions open to Member States.

Exceptions represent the user rights in EU copyright

While over the years a number of studies have been undertaken to provide insight into the state of implementation of the possible exceptions, there was no easily accessible, up-to-date information resource about user rights across the European Union. In the past few months Kennisland collected and combined the information it could find from multiple sources and had the results reviewed by national experts. Information was gathered about whether an exception is implemented and whether the exception requires remuneration. The tool also includes links to national acts and any other comments on the specifics of the implementation.

User rights are not looking good

While the Commission, based on the recently leaked impact assessment and dito draft directive, aims to solve parts of this non-user friendly patchwork, it is not looking good. The draft directive provides for only a limited TDM exception that will scare away data start ups, and strange licensing requirements in a new additional exception for education. It also doesn’t do much to harmonise important exceptions for the daily lives of citizens (such as freedom of panorama), or cultural heritage institutions (to make out-of-commerce works available). We don’t feel that the forthcoming directive will at all champion a true ‘Digital Single European Market’.

Kennisland, and COMMUNIA with them, believes that a single market means that we need to ensure that all participants in that market have the same rights: rights of creators and rights of the user, and equal in all member states. The directives unfortunately do not require the same harmonisation for user rights as it provides to rights holders.

We need a better harmonised copyright for users in Europe, and we urge you to use CopyrightExceptions.eu to experience for yourself how diverse the landscape of exceptions is, and how far we still have to go.

Unlocking copyright for users: Make law, not licenses

Unlocking Copyright for users panel in the European Parlliament
Debating copyright in the European Parliament
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In the copyright reform process, according to MEP Therese Comodini Cachia, the European Parliament is not looking for polarized stakeholder opinions. Instead, it is looking for data and evidence. On September 8 in Brussels we delivered on the latter by showing there is still a chance to unlock the copyright for users. As to what MEPs don’t need, polarization may be difficult to avoid as long as legitimate users’ interests are considered to harm traditional copyright revenue streams.

Our event “Copyright reform – unlocking copyright for users?”—which we  organized together with  EDRi and hosted by MEPs Comodini Cachia (EPP) and Carlos Zorrinho (S&D)—gathered a full house in the European Parliament on a sunny afternoon. Representatives of digital rights’ organizations, creative industries, publishers, collecting societies, and artists were eager to talk about the future of copyright in the light of the imminent publication of the Commission’s copyright reform proposals.

Complain, and then move forward

From the perspective of COMMUNIA and EDRi the leaked drafts of the Commission’s  proposal presents a grim picture, where all ambitious attempts to adjust copyright to the challenges of the digital economy were replaced by a focus on propping up existing revenue streams. If the leaked proposals are measured against EDRi’s list of copyfails, almost none of the points identified as necessary to address are covered by the draft legislation. Those that are addressed are only superficial fixes to the existing state of affairs. The leaked proposal is like the new ACTA, as EDRi’s Diego Naranjo put it. Continue reading