How many European lawyers does it take to explain copyright? Start with 28 and add another dozen, because opinions vary. Even a basic project of explaining key copyright issues to EU citizens in 15 Q&As demonstrates that not only is European copyright fragmented into 28 incompatible systems but also that explaining the law is time-consuming and sometimes plainly ridiculous.
Last month the US Supreme Court refused to hear an appeal from US authors who attempted to overturn a prior decision that Google’s scanning of millions in copyright books amounted to “fair use”. This refusal marks the end of a decade long legal fight about the Google books project. This means that in the US Google is free to scan and index in copyright protected books, in order to allow internet users to search the contents of the books.
The fact that Google is allowed to do this has received much criticism, not only from authors in the US but also from rights holders and media in Europe. Much of this criticism has been directed to the fact that the ruling allows a commercial entity to provide access to the full corpus of literature published in the US, but misses a much more important point.
As Ellen Euler, the Deputy Managing Director for Finance, Law, Communication of the Deutsche Digitale Bibliothek points out in her guest contribution below, this means that internet users in the US have access to a much broader body of knowledge and culture than the internet users in the EU. According to Euler we should not see Google Books as a threat to culture but rather as a reminder that Europe urgently needs to create a legal framework that enables access to the collections of our libraries, archives and museums, preferably by allowing them to make their collections available via their own online platforms.
Looking beyond Google for online access to EU culture and knowledge
by Ellen Euler
In the the digital and networked 21st century, cultural heritage institutions have an extended mandate: they must not only provide local access to culture and knowledge, but are also expected to make their collections available via the internet. As we spend an increasing amount of our time online, expect to be able to view and enjoy the the rich collections of our libraries, museums, and archives. And it’s important to provide online access to enable the discovery and innovative reuse of our shared cultural commons. As Tim Berners-Lee, one of the inventors of the web, sums up: “What’s not on the Net, is not in the world”.
When we digitize content from cultural heritage institutions, we begin the process of opening those materials to the world. As Armand Marie Leroi, a humanist and professor of evolutionary biology once said, “digitisation transforms them from caterpillars into butterflies”. Digitized texts allow us to pose entirely new questions and acquire new knowledge based on full-text searches and via other analytical tools and methods. This type of information mining is no longer restricted only to texts. Image recognition tools, combined with standardised metadata and geographical data, make it possible to interrogate other types of content too. We can use new quantitative research methods to test hypotheses and create linkages between bodies of knowledge. We can create virtual research environments to enable the contextualisation of collections within a broader framework.Continue reading
The Commission’s public consultation on whether to grant additional rights to press publishers is aimed at audiences beyond the publishers themselves, to include a wide range of stakeholders – including end users, consumers, and citizens. In this third post of our series on the consultation, we highlight what the introduction of an additional right for publishers would mean for end-users of news and online information, as well as content creators. We encourage everyone to make their views known to the Commission by answering the consultation questionnaire by 15 June.
[If you have not read our introductory post that deals with the more general problems of granting additional rights to publishers, you may want to read that first.]
Bad for end-users
We’ve already argued that granting new rights to press publishers is a fool’s errand. The adoption of an EU-wide ancillary copyright would have significant negative consequences for end-users of online news and information. And users would encounter additional hurdles in finding the news and content they were looking for. In addition, these users would potentially face more constraints in quoting, linking to, aggregating, or otherwise finding and using works. Many users that rely on curated news aggregators like Google News or even RSS readers or other apps that reproduce snippets of content from news articles. If an additional right for press publishers is enacted, users would find that these existing news products and services will likely be disrupted, their prices increased, or even discontinued altogether (as we’ve seen in Spain with Google News).
The creation of an ancillary copyright for press publishers can have far reaching effects with regard to access to information beyond the traditional new aggregation services. For example, popular social networking apps and websites used by hundreds of millions of people could be affected too. Think about sites like Facebook and Twitter that permit anyone to post links and short pieces of text. Under a system where publishers are granted an additional right to such snippets, those publishers would be able to extract fees from social networking sites (who of course would likely pass on that cost to their users) in order to allow for open linking to content.
Bad for creators
The adoption of an ancillary copyright for press publishers would also harm content creators. The data show that granting additional rights for press publishers does not lead to higher compensation for creators. Instead, it frustrates end-users and results in big content aggregators like Google News threatening to discontinue operations if they would be required to pay royalties to publishers for linking to content or providing short snippets to publishers’ content. Even if a system could be arranged where publishers would be compensated for the reproduction of short snippets or links, it’s not clear how (or if) that money would flow back to the authors of the original content.
In addition, an ancillary copyright for press publishers would run afoul of the intentions of creators who wish to share without additional strings attached because the right could be interpreted as unwaivable. For example, the Spanish ancillary right did not treat openly-licensed content differently from content under all rights reserved copyright. Content publishers sharing under Creative Commons licenses, which is increasingly popular, would still be subject to the ancillary copyright, as we wrote then: “By making the right unwaivable aggregators are required to pay fair remuneration to a collective rights management organisations even if a creator has chosen to apply a Creative Commons license that allows the free reuse of her creation.”
Make your voice heard
If you are are content creator, or end-user, we encourage you to make your voice heard and let the Commission know why introducing new rights for publishers is a terrible idea that will damage the European news landscape, social media platforms and more. You can respond directly to the consultation on the Commission’s site, or through an easy tool on youcan.fixcopyright.eu.
We will continue this series next week by highlighting the importance of securing a broad freedom of panorama across the EU.
The European Commission recently decided to consult stakeholders on their views about two hot topics in the copyright reform discussions in Brussels: ancillary copyright and freedom of panorama. Copyright for Creativity (C4C), has released two short videos to explain what Ancillary Copyright (AC) and Freedom of Panorama (FoP) are about, and why they are important. We found these videos useful in explaining these complex legal concepts to general public. We encourage you to watch and share them.
Freedom of Panorama:
The discussion around copyright reform is summarised in the third movie “#FixCopyright: Copy (aka copyright) – Draw My Life”.
We just got done submitting our response to the Commission’s public consultation on the enforcement of intellectual property rights. But there’s no rest for the weary. Next up is the consultation on the role of publishers in the copyright value chain and on the ‘panorama exception’.
COMMUNIA will be responding to this public consultation, and you can too! Answers to the Commission’s survey must be received by 15 June. You can find a helpful answering guide at http://youcan.fixcopyright.eu/ which covers both topics adressed by the consultation. The guide was created by Copyright 4 Creativity in order to mobilize the voice of creators, internet users, and the public in the EU copyright reform process.
Regarding the role of publishers, the Commission wants to “gather views…on the impact that granting an EU neighbouring right to publishers could have on the publishing sector, on citizens and creative industries and as to whether the need (or not) for intervention is different in the press as compared to other publishing sectors.” This “neighbouring right” is also known as “publishers right” or “ancillary copyright”. It’s also been referred to as a “link tax” because it is intended to permit content publishers to charge search engines and other content aggregators for incorporating short snippets or even linking to news articles.
As we’ve written before, ancillary copyright is good for no one. Everyday internet users and consumers of news and articles would then have a harder time finding the news and information they were looking for, and would potentially face more constraints in quoting, linking to, aggregating, or otherwise using works protected by a new ancillary right for press publishers.
There is no decent business case for ancillary copyright either. Spain and Germany experimented with ancillary copyrights for press publishers, and both seem to have failed miserably. The Spanish law ended in Google News shuttering its operation there because it did not make (economic) sense to have to pay license fees to news publishers for the for the use of snippets as part of a service which primary function is to drive traffic to them. By now the publishers have figured this out themselves as the amount of traffic they receive from Google News and other aggregators has dropped significantly. After the implementation of the new law, traffic to the publishers’ content decreased 6 to 14 percent. The same thing happened in Germany, except the German publishers saw what had happened in Spain and literally gave Google a free license to their content. And it’s not just the big news aggregators that are affected. In Spain, some smaller aggregators shut down entirely. Recently, a small business which curated links and news about Alzheimer’s disease that had to remodel their entire business because of the ancillary copyright law in Spain.
Freedom of Panorama
The current consultation also asks for input to inform the Commission’s analysis regarding the ‘panorama exception’. Freedom of panorama refers to 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. We think that the freedom of panorama should be mandatory across the EU. The sharing of photos taken in public places is an example of an everyday activity that should not be regulated by copyright. This issue was also brought up in the discussion around the Reda report. An amendment was introduced to restrict freedom of panorama to only non-commercial uses, but a huge protest from citizens, photographers, and civil society organisations—including a Change.org petition that received over 500,000 signatures—helped remove the amendment from consideration.
It’s important that the Commission hear from the public about both of these topics. In the coming weeks, we will publish a series of blog posts about questions posed by this consultation. We hope that these posts will highlight what is at stake. Communia will also be responding to the public consultation process, and you can provide your feedback too. Again, responses to the Commission’s survey must be received by 15 June, and you can check out how to answer the questions with the guide at http://youcan.fixcopyright.eu/.
The text was written by Katarzyna Strycharz.
Since the beginning of the year there’s been a lot of discussion (and confusion too) about whether the Diary of Anne Frank is now in public domain. Under the normal rules regarding the duration of copyright protection, the work should have entered into the public domain on 1 January 2016. However, there were several unusual circumstances that brought this into question. First, the Anne Frank Foundation announced their plans to list Otto (Anne Frank’s father) as a co-author, which would extend the protection period of the published diary until 2050. Next, due to a transitional rule in Dutch law it became clear that Anne Frank’s original writings would not enter the public domain in 2016 in the Netherlands (and many other EU countries with similar rules). Finally, in early February the Wikimedia Foundation (the organization that hosts Wikipedia and related projects) decided to remove the Dutch-language text of the diary from Wikisource.
On Tuesday 26 April, World Intellectual Property Day, the original, Dutch-language version of ‘The Diary of Anne Frank” will be published online at annefrank.centrumcyfrowe.pl. With this publication of the original version of the diary we seek to highlight the absurdly long duration of copyright in the EU, as well as the fact that, contrary to general assumptions, the duration of copyright is still not unified across the EU and the troubling fact of geo-blocking which creates boundaries online.
On the Anne Frank Foundation website we can read that “Anne Frank’s original writings, as well as the original in-print versions will remain protected for many decades”. So, when does the copyright of the diary expire? It seems that the answer varies from country to country, and we’ll try to investigate whether there is somewhere in the EU where the writings of Anne Frank are now in the public domain.
Transitional provisions in the Dutch law
To fully understand the issue at hand, we observe that there are actually three versions of Anne Frank’s diary writings. Two versions of her manuscripts (version A and B) were combined into the book (version C). This book is commonly known as the the Diary of Anne Frank, and was published in 1947.
As we have previously discussed, version C was compiled by Otto Frank and thus is still protected by copyright 70 years from the time of his death in 1980. But in the case of manuscripts (version A and B) there is no doubt that Anne Frank was the sole author. As we can read in the statement of the Anne Frank Stichting (who runs the Achterhuis in Amsterdam)“Otto Frank is not the co-author of the original diary writings of Anne Frank”. The same is confirmed by the Anne Frank Foundation (who own the copyrights in Anne’s work), which claims that “copyrights to Anne Frank’s original texts originally belonged to the author, Anne Frank herself”.
In the Netherlands copyright lasts for 70 years after the death of the author. And even though Anne Frank was killed in 1945, this doesn’t mean that the A and B versions of her diary are in the public domain under Dutch law. This is because the full manuscripts were first published in 1986, and the rule at that time said that works which were first published posthumously are protected for 50 years after the initial publication.
The 2013 Dutch copyright act implementing the 1991 term directive contained transitional provisions stipulating that rights which existed under the previous law continue to exist. This means that versions A and B of the Frank diary will remain under copyright in the Netherlands until 1 January 2037 (50 years after the 1986 publication).
Last week COMMUNIA submitted its response to the European Commission’s public consultation on the evaluation and modernisation of the legal framework for the enforcement of intellectual property rights (IPR).
We believe that the existing Directive fails to adequately address the varying types (and by extension, impact) of activities that would technically constitute copyright infringement. This is particularly worrying in the case of online infringement, where many violations occur due to unconscious actions by internet users who are not familiar with complex copyright rules. To be justly enforced, the rules should take into account the fact that there are many forms of incidental or relatively harmless forms of infringements today. The law should weigh the seriousness and impact of these minor infringements when deciding on enforcement measures and damages.
Excessive enforcement of copyright against everyday activities must not curb creativity, freedom of expression, and innovation.
From the perspective of internet users, there is no need to revise the Directive in order to strengthen its enforcement provisions. If anything is to be changed, it should be those provisions that support a better balance between the interests of consumers and the protection of the rights of content creators. The following changes should be considered:
- Ending both civil and criminal prosecutions of citizens for non-commercial file sharing, and withdrawing from prosecuting the creators of derivative works who produce non-commercial remixes. In addition, criminal penalties for violations of intellectual property rights by individuals should be minimized.
- Introducing mechanisms for safeguarding fair use and the public domain, including a ban on direct contractual restrictions on access and use of these materials, or of using digital rights management or other technical mechanisms to prevent citizens from exercising their rights under the law.
- Avoiding the situation where ISPs or hosting services are forced to filter content based on the orders imposed by civil courts attempting to enforce intellectual property rights, contrary to the provisions of Directive EC / 21/2000 (“the E-Commerce Directive”). There should not be any involvement of intermediaries other than the notice and takedown rules already in place under the E-Commerce Directive. As highlighted in our answers above, these rules already negatively impact internet users because they do not adequately provide users the ability to file counter notices. The ability of users to oppose and counter unjustified takedowns needs to be strengthened, and rights holders need to be required to take into account exceptions and limitations to copyright before filing notice and takedown requests.
We will continue to monitor the outcomes of this consultation. We’re curious to see how the Commission will take into account responses from end users who have contributed to the consultation via youcan.fixcopyright.eu.
In the ongoing reform of copyright, the European Commission has presented a conservative approach . There are some alarming ideas being raised, such as ancillary copyright and broadening the scope of internet intermediaries’ liability. If these concepts are translated into policy, it would make copyright even more complicated to understand and the internet a less free place. The reform discussions so far look neither progressive nor adjusted to users’ needs. This worries Communia and other organisations that serve the public interest.
COMMUNIA is one of the signatories of an open letter on copyright reform sent today to the European Commision. Various civil society organizations and representatives of consumers, businesses, creators, distributors, broadcasters, and public institutions voice their support for a more ambitious reform that is fit for the digital environment and that upholds and strengthens fundamental principles such as the limitation of intermediaries’ liability, rights of citizens to freedom of communication, and access to knowledge.
The letter underlines the notion that online platforms such as search engines and aggregators should not be required to monitor content submitted to their platforms. Even more importantly, they should not be held responsible for blocking links to websites that are accused of hosting illegal content or providing access to content made available illegally. From the letter:
We ask you now to deliver an ambitious reform that is fit for purpose in the digital environment and that upholds and strengthens fundamental principles such as the limitation of intermediaries’ liability, rights of citizens to freedom of communication and access to knowledge.
What does “ambitious copyright reform” mean to COMMUNIA? We advocate for policies that strengthen and expand the public domain and increase access to and re-use of culture and knowledge. We advocate for using Creative Commons licences, enhancing and harmonizing copyright legislation, securing users’ rights in education and culture, and introducing new exceptions to copyright, such as for text and data mining. The Commission needs to hear the voices of organisations and individuals supporting the public interest. The Commission should give copyright the modernisation it deserves by enabling innovation and the sharing of culture—not by adding new layers of protection and complexity to already complex system.
BEUC, the European Consumers Association, has just launched a campaign against geo blocking. COMMUNIA has been using this term mainly in order to refer to the practice of limiting access to copyright protected content – such as films or music – to specific national markets. This prevents internet users from outside of that market to access the content in question which, in our opinion, is not coherent with the expectations of internet users and the idea of a EU Digital Single Market. However, the problem is not limited to access to works protected by copyright. As illustrated by the campaign video released by BEUC the idea of providing different services to people based on their nationality is fairly ridiculous:
You can find out more about the practice of geo-blocking and why it needs to end as soon as possible in this factsheet (pdf) and in BEUC’s factsheet on the issue. Needless to say we wholeheartedly agree with the analysis provided by BEUC. From the perspective of European internet users, ending these unfair business practices will be one of the key outcomes that the European legislator needs to achieve in order to deliver on the promise of a Digital Single Market.
We spend a lot of effort pointing out that additional copyright, like rights for specific groups of rights holders, are a problematic concept that has potential to cause a lot of damage to the Public Domain. Most of our coverage has focused on efforts to establish an ancillary copyright for press publishers. We have seen the introduction of such rights first in Germany and then in Spain in recent years, and in both cases the legislators have failed to reach their objective. Especially in In Spain the newly introduced rights have caused so much collateral damage that the news publishers themselves (who were supposed to be the beneficiary) have come out against the concept of an ancillary copyright.
Part of the argumentation why ancillary copyrights are a bad idea has been the fact that they have the potential to limit the access to information, and thus damage the Public Domain. Trying to boost specific business models by adding more types of rights to an already overly complex copyright system is the wrong answer to the challenges posed by the rise of the internet. New rights do not only affect the rights holders they are intended to help, but have a much wider impact on how we access information and culture.
This point is once more illustrated by a recent attempt in France to establish a new right that would require search engines and indexing services to pay royalties for the use of thumbnail images of copyright protected works. According to French proposal, which has been approved by the French Senate, this new right would be managed by one or more collecting societies, regardless of the intention of the rightholders whether to be financially compensated for the use of their works by search engines.
As with the Spanish ancillary copyright for press publishers, the compulsory collective management of this right means that it would also apply to works that have been made available by their creators under Creative Commons licenses, severely limiting the ability of creators to contribute to the Public Domain. The French proposal would also be very likely to affect online resources such as Wikimedia Commons or Europeana, even though these platforms are based on voluntary sharing of images.
This is why we joined forces with 14 other organisations and expressed concerns in open letters to the French Minister of Culture (en/fr) and the rapporteur of the Assmblée Nationale (en/fr )for the ‘Liberté de la création, de l’architecture et du patrimoine‘ law which contains the proposal. The letters warn that:
The current proposal […] will impact many online services and mobile apps, from search engines to creative commons models and Europeana. Money would be collected arbitrarily and without any realistic way of redistributing it accurately. Basically, every day activities of online users, such as posting, linking, embedding photos online, would be subject to a cloud of legal uncertainty.
It would isolate France in the European Union, at a time when courts across Europe have made clear these were lawful activities under national, European and international laws. It would isolate France globally, as a country where using images online would be subject to restrictive and unworkable practice.
We hope that the French legislator will have the wisdom not to introduce this new right. This would send a strong signal that introducing new exclusive rights in an already too complex European copyright framework is not a suitable instrument to support specific business models in sectors negatively affected by the internet. We are convinced that the answer to the challenges posed by digitisation in certain sectors does not lie in the creation of new rights, but rather in a re-balancing of the existing copyright rules.