Today, MEP Therese Comodini Cachia, the European Parliament’s main rapporteur for the proposed copyright in the Digital Single Market directive published her draft of the JURI report (pdf) on the Commission’s proposal. In line with the initial reactions from the rapporteurs from the Culture and Education (CULT), Internal Market and Consumer Protection (IMCO), and Industry Research and Energy (ITRE) committees Ms. Comoidini’s report points out substantial flaws in the Commission’s unbalanced and backward-looking proposal.
Unlike her colleagues from CULT and IMCO Comodini has limited her report to fixing flaws in the provisions proposed by the Commission. While such fixes are important, this means that her draft report constitutes a missed opportunity to introduce more forward-looking provisions that would strengthen the position of users such as much-needed exceptions providing legal certainty for user generated content and ensuring freedom of panorama in all of the EU.
Below we provide a brief overview of the changes to the Commission’s proposal that Ms. Comodini proposes in her draft report. We will follow-up over the next few days with more in- depth analysis of individual issues.
R.I.P ancillary right for press publishers
Her most straightforward intervention is to delete the Commission’s proposal for a new neighboring rights for press publishers. In line with what we and many others had proposed she instead proposes to solve the enforcement problems of press publishers by improving their ability to act against infringing uses of works published by them:
Member States shall provide publishers of press publications with a presumption of representation of authors of literary works contained in those publications and the legal capacity to sue in their own name when defending the rights of such authors for the digital use of their press publications. (AM 52)
Sharing cultural works online is a familiar part of life for hundreds of millions of people. Many of them share to satisfy a sincere desire to empower and inform their communities, to self-affirm and self-create in the virtual world. But under the law much of this sharing infringes copyrights and neighbouring rights, which means that rightholders are entitled to seek compensation. So how can we adjust the law to the realities lived by millions online and still be fair to authors?
Looking for more balance
A proper solution for these problems needs to introduce a space of legal safety for natural persons who use copyrighted works for noncommercial purposes as well as provide for a fair and transparent scheme for remunerating rightsholders. It could build upon users’ willingness to pay for on-line sharing, as shown by some studies.
However, putting those ideals into practice and translating them into the word of law is not easy. It is because any regulation of exclusive rights of authors should comply with strict requirements formulated in the international and EU copyright regime. The starting point is that generally a copyright holder’s consent is necessary for any use of a work. Traditionally, there have also been some uses of copyrighted works not requiring consent. In the EU such uses are usually called “exceptions and limitations”.
Noncommercial sharing exception
Can noncommercial sharing be covered by an exception? Well, current exceptions and limitations are listed in the INFOSOC Directive. This is a closed list, so although the idea is appealing, the Member States are not free to add new exceptions on their own. Hence a need for the activity at the EU level.
It is great that ITRE Rapporteur Zdzisław Krasnodębski joined IMCO Rapporteur Catherine Stihler in thinking that the right to read is the right to mine. As we explained in detail, his draft proposal opens up the TDM exception to anyone and makes sure any safeguarding measures won’t stand in the way of applying the technology. As progressive as it is, however, the fact that ITRE’s Rapporteur focused only on TDM and proposed a minor tweak of article 14 is also a statement. What is not mentioned is as significant as the changes that are proposed.
The fact that the most controversial articles are not a subject to any improvement by the ITRE draft opinion may of course indicate how the Rapporteur perceives the Commission’s mandate to propose input on copyright. Naturally, the TDM exception would provide an enormous opportunity for the European industry to expand their R&D without looking for an academic partner to benefit from the exception. But is that really all there is in the directive proposal that could benefit the realms of Industry, Research and Energy?
Better education makes better economy
In the information economy, modern accessible education is a cornerstone. Now that across all industries there is an enormous demand for workers that can keep up with developments in technology and knowledge, lifelong learning becomes an inseparable element of any professional career.
We’ve already reviewed the draft opinions from the European Parliament’s Culture and Education Committee (CULT) and the Committee on the Internal Market and Consumer Protection (IMCO) on the Commission’s proposal for a Directive on copyright in the Digital Single Market. Regarding the introduction of an exception for text and data mining (TDM), the IMCO amendments would strengthen the Commission’s original plan by creating a broad exception for text and data mining that would apply to anyone for any purpose. On the other hand, the changes offered by CULT would further restrict the ability to conduct TDM in the European Union.
TDM for all
This week the Committee on Industry, Research and Energy (ITRE) released its draft opinion on the Commission’s plan. Rapporteur Zdzisław Krasnodębski’s suggested changes focus on the proposed exception for text and data mining. ITRE’s amendments—similar to those offered by IMCO—would support an expansive TDM exception that could be leveraged by entities beyond research organisations, and for purposes beyond scientific research.
Last week the Committee on the Internal Market and Consumer Protection (IMCO) released a draft opinion on the proposed Directive on Copyright in the Digital Single Market. It’s not bad. Rapporteur Stihler’s opinion makes it clear that the European Commission’s proposal is seriously flawed and requires substantial changes. It contains proposals for amendments that address many of the issues with the original proposal. This week we’ve written more extensively on these, including the suggestion to drop the ancillary copyright for press publishers, the broadening of the TDM exception to permit mining by anyone for any purpose, a potential fix to the content upload filtering mechanism, and the continued problematic reliance on licensing within the exception for educational purposes.
We are pleased that just as in the draft CULT opinion, IMCO acknowledges the importance of protecting and strengthening user rights. Rapporteur Stihler’s broad scope is especially important, as it would permit a person “to use an existing work or other subject matter in the creation of a new work or other subject-matter, and use new work or other subject matter”. In other words, it doesn’t matter what a user needs the protected content for, he or she may just use it as long as they create something new with it. For reference, CULT’s draft opinion proposed a UGC exception to apply primarily when it serves criticism, illustration, parody, etc.
We welcome the positive sound that MEP Stihler’s draft opinion for the Committee on the Internal Market and Consumer Protection (IMCO) brings to the copyright debate. She proposes to broaden the TDM exception to a level of ‘right to right is the right to mine’, hears the clear call from the cultural heritage institutions to fulfill their public task of providing (online) access to culture, and proposes to delete the unsubstantiated article 11 of the proposed directive on copyright in the Digital Single Market.
For education, the Scottish MEP has aims that strongly resonate with us, as she noted in her introduction:
Also, in the field of the use of works and other subject matter in teaching activities (Article 4), the Rapporteur believes that the exception should benefit not only all formal educational establishments in primary, secondary, vocational and higher education, but also other organisations such as libraries and other cultural heritage institutions, providing non-formal or informal education. The Rapporteur believes that the best solution is to have a single and mandatory exception for all types of teaching, both digital and non-digital, formal and informal.
These are more-or-less the same points we make in our position paper on the draft directive. In it, we argue that ‘the devil is in the detail’. The analysis of MEP Stihler’s proposed amendments appears to require the same title. While we can do less than fully applaud her aims, there is some serious room for improvement in the actual proposed text. We appreciate amendments that strengthen the exception, but note at the same time that even the best exception will be broken if licensing solutions are favored by the legislator. Continue reading
Last week the Committee on the Internal Market and Consumer Protection (IMCO) released a draft opinion on the proposed Directive on Copyright in the Digital Single Market. Rapporteur Stihler’s recommendations lay in stark contrast to both the Commission’s original flawed TDM exception, and CULT’s draft opinion published just a few weeks ago. While CULT Rapporteur Joulaud’s suggestions would further restrict the ability to engage in TDM in the European Union, Stihler’s opinion champions a broad exception for text and data mining that would apply to anyone for any purpose. Rapporteur Stihler proposes 3 amendments regarding TDM that are coherent with our position:
- removal of the restriction that only research organisations may benefit from the exception,
- removal of the limitation that the exception may only be used for the purposes of scientific research,
- introduction of the rule that technical protections that prevent activities under the text and data mining exception will also be inapplicable under the law.
From IMCO’s draft opinion:
“the Rapporteur believes that limiting the proposed EU exception to a narrow definition of research organisations is counterproductive, and therefore introduces a simple rule, which does not discriminate between users or purposes and ensures a strictly limited and transparent usage of technological protection measures where appropriate.”
Rapporteur Catherine Stihler of the Committee on the Internal Market and Consumer Protection (IMCO) in her draft opinion on the proposed Copyright in the Digital Single Market Directive, suggests amendments that address many of the issues that we have identified with the proposal. Regarding ancillary copyright, she simply suggests that the best option is to the delete the article 11, which is what we have been advocating for.
The Rapporteur believes that the introduction of a press publishers right under Article 11 lacks sufficient justification. It is true that publishers may face challenges when enforcing licensed copyrights, but this issue should be addressed via an enforcement regulation. Simple changes made to Article 5 of the Enforcement Directive 2004/48/EC, making it also applicable to press publishers, will provide the necessary and appropriate means to solve this matter. The Rapporteur believes that there is no need to create a new right as publishers have the full right to opt-out of the ecosystem any time using simple technical means [emphasis added].
While recognizing the problems of the press publishers in digital era, we believe that all
of them can be addressed by establishing a rule that press publishers are entitled to enforce the copyrights over the works that are licensed to them. One way to do this would be by extending Art. 5 of the Enforcement Directive (2004/48/EC) to also apply to press publishers with regard to their licensed works or other subject matter. The other would be for publishers to review their business models and adjust them better to the digital reality. Continue reading
It is Fair Use week, and we have a special guest author sharing about a copyright debate that is considering implementing Fair Use: Delia Browne is National Copyright Director of the Australian National Copyright Unit (Schools and TAFEs). Australia is in the process of re-evaluating its copyright law, including the rules regarding education. The Australian reform offers interesting parallels with the actions in the European Union. We can only wish that a debate on flexible copyright norm was taking place also in Europe.
Like almost all nations, education is crucial to the future economic and social well-being of Australia. These are exciting times for education, but the benefits of the digital era will not be fully realised in our classrooms unless greater flexibility is introduced into our copyright laws. The rules around copyright were designed in the age of the photocopier; these are not working in the age of the iPad and the 3D printer, and are holding back innovation in schools.
The current system isn’t working
Copyright reform is a significant issue for Australian schools, as Australia’s outdated copyright laws currently stand in the way of teachers using the most modern teaching methods in the interests of Australian students. For example: Continue reading
Last week the Culture and Education Committee of the European Parliament (CULT) released its draft opinion on the European Commission’s proposal for a Directive on Copyright in the Digital Single Market. Rapporteur Joulaud highlights that the Commission’s proposal ignores many of the crucial concerns voiced by internet users, and offers some amendments to improve this situation. However, many of these changes do little to promote user rights and freedoms. Instead, he suggests a confusing change to the proposed ‘press publishers right’ by introducing a non-commercial clause, a push for an even stronger reliance on licensing instead of a broad education exception, renewed support for filtering of user uploaded content, and further restrictions on TDM activities.
From our perspective, the issue of 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—was not adequately addressed in the Commission’s proposal. In fact, it wasn’t included at all. We’ve urged 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.