If this week’s leak of a draft version of the European Commission’s Impact Assessment on the modernisation of EU copyright rules shows one thing, it is that the various rightsholder groups have managed to completely hijack the EU copyright reform process.
A first analysis of the ten measures included in the Impact Assessment reveals that, under pressure from organized rightsholders, the EU copyright reform process, which started in 2014 with ambitious goals to modernize the EU copyright rules in order to create a digital single market in the European Union, has turned into a fragmented effort to protect the self-proclaimed interests of rightsholders.
Instead of harmonizing copyright rules across the EU and ensuring that they will not limit the potential of digital technologies, the Commission has chosen to focus on supporting legacy business models of rightsholders in an attempt to defend the status quo. This is a remarkably short-sighted approach to modernizing one of the core policy frameworks governing the information economy, especially if one takes into account that these rules will likely remain in effect for the decades to come.
While we are working on a more detailed analysis of the policy options proposed in the Impact Assessment, here are our initial thoughts on the ten measures covered. It is important to keep in mind that we base ourselves on a leaked version and that the final version can still change, although substantial changes are very unlikely. The document at hand is largely in line with other internal Commission documents, such as last December’s communication on the same topic (see our analysis here), and it is consistent with public statements of key policy makers.
The Impact Assessment is divided into three sections. The first one contains four measures aimed at ‘ensuring wider access to content’. The second one contains three measures aimed at ‘adapting exceptions to digital and cross-border environment’, and the final section contains three measures aimed at ‘achieving a well functioning market place for copyright’.
Exceptions as restrictions
One of the most interesting parts of the Impact Assessment is the section on ‘adapting exceptions to digital and cross-border environment’. The Impact Assessment proposes the creation of three new mandatory exceptions: one covering text and data mining for “public interest research organisations”, one covering preservation copies made by cultural heritage institutions, and one covering digital and online uses in the context of illustration and teaching. Creating mandatory exceptions to enshrine user rights is clearly a step in the right direction (although a tiny one in the case of the preservation exception, which already exists in most member states). At closer inspection, however, two of the three proposed exceptions come with significant flaws. Continue reading
In anticipation of the EU Commission’s copyright reform proposal (and just in time for the confirmation that the Commission’s plans will be everything but forward-looking), our friends at Mozilla have launched a new copyright reform campaign. They are taking this step because “it’s time our laws caught up with our technology.”
The campaign focusses on issues which have traditionally been dear to Mozilla, such as online learning, creative expression and innovation. Therefore, the three main strands where Mozilla wants to see an update of the current EU copyright rules (our summary) are:
- Update EU copyright law for the 21st century The EU’s current copyright laws were passed in 2001, before most of us had smartphones. We need to update and harmonise the rules to create room to tinker, create, share, and learn on the Internet. Education, parody, panorama, remix, and analysis shouldn’t be unlawful.
- Build in openness and flexibility to foster innovation and creativity Copyrighted works are remixed, reimagined, and reused in new and creative ways every day. These elements build on existing ideas in a way that breathes new meaning into old content.
- Don’t break the Internet Some people are calling for licensing fees and restrictions on Internet companies for basic things like creating hyperlinks or uploading content. Others are calling for new laws that would mandate monitoring and filtering online. These changes would establish gatekeepers and barriers to entry online, and would risk undermining the Internet as a platform for economic growth and free expression.
Sign the petition!
All of these issues are ignored by the leaked Commission’s Impact Assessment. This makes Mozilla’s campaign timely and relevant. We fully agree with Mozilla’s efforts to update and fix copyright and urge you to take a look at the Mozilla Campaign and sign the petition.
Well that was quick: just two days after Commissioner Ansip delivered a non-denial denial that “this Commission does not have any plans to tax hyperlinks” Statewatch published a draft of the Commission’s own Impact assessment on the modernisation of EU copyright rules which clearly states that the Commission will indeed propose the introduction of an EU wide ancillary copyright for news publishers.
While nobody expected the EU commission to come forward with a proposal for a literal “link tax”, the “introduction in EU law of a related right covering online uses of news publications” is exactly what civil society groups like Save the Link are criticising as a link tax.
The term “link tax” is being used to point to the fact that granting news publishers’ additional rights will likely result in limitations on how Internet users and online platforms can interact with news content that has been published online. Over the last few years Spain and Germany have both introduced ancillary copyrights for press publishers, with the explicit purpose of allowing publishers to charge aggregation platforms and search engines for providing links to their content. Even though both attempts have failed in achieving this objective (something that the Commission concedes in the impact assessment), the publishers have clearly managed to convince the Commission that they should be granted a german-style ancillary copyright on the EU level. Continue reading
We happily invite you to the event Copyright Reform: Unlocking copyright for users? that will take place on September 8 in Brussels. The event is hosted by MEP Therese Comodini Cachia and MEP Carlos Zorrinho, and co-organised by COMMUNIA and EDRi.
Join us to discuss key aspects of the current EU copyright reform including the freedom to use copyrighted works (exceptions and limitations) as well as some of the failures of the existing legal framework (copyfails). After the event we invite you to lunch in Jan 3q Brasserie.
Copyright Reform: Unlocking copyright for users? – agenda
11:15 – 11:20 Introduction
Anna Mazgal, Communia
11:20 – 11:25 Welcome
MEP Therese Comodini Cachia (EPP)
11:25 – 11:35 How to understand the L&E practice better?
Launch of copyrightexceptions.eu – Maarten Zeinstra, Kennisland
11:35 – 11:45 What doesn’t work?
The #copyfails and ways out of the copy mess – Diego Naranjo, EDRi
11:45 – 11:55 What works?
Presentation of the Best Case Studies – Teresa Nobre, Communia
11:55 – 13:00 Questions and discussion
facilitated by Anna Mazgal, Communia
13:00 – 13:05 Commentary
MEP Carlos Zorrinho (PASD)
13:05 – 13:15 Closing remarks
MEP Therese Comodini Cachia (EPP)
13:15 – 14:00 Lunch
Brasserie Jan 3q Continue reading
On April 26—World Intellectual Property Day—the original, Dutch-language version of The Diary of Anne Frank was published online at annefrank.centrumcyfrowe.pl. With the publication of the original version of the diary, we wanted to highlight the absurdly long copyright terms in the EU. In addition, we wanted to point out that, contrary to the general assumption, the duration of copyright is still not unified across the EU. This leads to the troubling practice of geo-blocking which creates artificial boundaries online. Our posting of the diary online attempts to show the complicated copyright framework for this and similar works, and champions freedom to access to cultural heritage works in the public domain for creators as well as users. But our campaign appeared to convey an even stronger message.
The campaign raised various concerns with regard to copyright terms and access to culture. We’ve already examined the differences between the three versions of the diary, so we won’t go into that in depth here. Without a doubt, versions A and B did not enter into public domain in the Netherlands due to specific copyright regulations (This is due to a transitional rule in the Dutch copyright act which states that works posthumously published before 1995 will retain copyright — in this case large parts of the original writings will only expire in 2037).
The article was written by Marcin Serafin, the head of public policy team in Centrum Cyfrowe.
The Poles and French will probably fight for the next few centuries over whether Frederic (or Fryderyk) Chopin was of Polish or French nationality. Both nations view Chopin as a national treasure, and preserve his memory and heritage. And there is no doubt that in both countries copyrights to his work have expired. Contrary to the case of Little Prince, there is absolutely no doubt about this, as Chopin died almost 170 years ago. This is why we were shocked to learn that the National Institute of Fryderyk Chopin (NIFC) not only issued an ordinance protecting his name and public image, but also filed an application to register two trademarks with the European Union Intellectual Property Office (EUIPO) for all possible classes of products and services using the word “Chopin”. With that, no more “Chopin Hotels”, “Chopin chocolates”, composition of flowers named “Chopin bouquet” or any other product without a license, is possible.
First, let’s understand the facts. The EUIPO database holds 26 trademarks and 4 designs (some registered, some refused or rejected) with the “Chopin” element. Two of the trademarks have been filed on behalf of the NIFC for a wide variety of products and services. Also, NIFC has drafted a long list of terms and conditions users will need to agree to in order be able to use their Chopin trademark. Applications are reviewed by a board and if approve – the licensing fees are imposed. The board sets the rules to which a license may be obtained for use of the trademark. There are 8 applicable licensed uses, including “music with patriotic messaging”, “European high culture”, “high esthetical value”, and “mastership or highest quality.”Continue reading
We are impatiently awaiting the European Commission’s communication on the copyright reform that should happen on September 21st. We have a list of issues we think it should cover and together with EDRi we want to talk about what doesn’t work and should be changed as well as what does work and should be further reinforced.
On September 8th in Brussels MEPs Therese Comodini Cachia (EPP) and MEP Carlos Zorrinho (PASD) will host an event co-organized by COMMUNIA and EDRi on the possible future scenarios for copyright.
Our friends at EDRi will talk about the copyright deficiencies and areas for change based on their fascinating Copyfails series. We will talk about the need to reinforce users’ rights through the harmonization of limitations and exceptions based on our Best Case Scenarios for Copyright. Kennisland, a Communia member, will present the copyrightexceptions.eu, which collects and visualises where limitations to copyright are implemented in EU member states.
Regardless of the text of the EC Communication we will have our eyes set on the reform that should both protect users’ rights and adjust copyright for the 21st century. We are grateful that MEP Comodini and MEP Zorrinho are hosting this event and help spread this message.
We will publish the agenda of the event and registration info in mid-Agust. Meanwhile, please save the date for this important debate. See you on September 8th, 11:00-13:15 in the European Parliament, Brussels.
Last week we saw another Advocate General (AG) opinion published that deals with the position of cultural heritage institutions within the EU copyright framework. Hot on the heels of AG Szpunar’s opinion on e-lending, AG Wathelet weighed in on the question of whether the French system for making out-of-print books available online is aligned with the EU copyright directive. His opinion in the case C‑301/15 Soulier en Doke is that the French scheme, which assigns the digital reproduction and performance rights for out-of-print books to a collecting society that then licenses them, is incompatible with the InfoSoc directive. Such an opinion effectively undermines the idea that Extended Collective Licensing (ECL) can serve as a solution for the copyright problems created by mass digitisation of cultural heritage collections.
This opinion comes at a crucial time when the EU Commission is finalising its copyright reform proposal, which is scheduled to be published in September. As part of this proposal the Commission has promised to propose measures that will “make it easier to digitise out-of-commerce works and make them available”. While the Commission has so far been silent on the mechanism that it would propose to achieve this goal, it is generally understood that there are two different approaches on the table:
The Death of Extended Collective Licensing?
While AG Wathelet’s opinion only concerns the specific question referred to the CJEU by the French court, it has much wider-ranging consequences. Should the CJEU rule in agreement with the opinion (note that a decision is not expected until after the September publication of the Commission’s proposal), then Extended Collective Licensing is effectively dead as a solution for the copyright problems created by mass digitisation. In this sense, this opinion supports the position expressed by cultural heritage institutions that the only real solution for their issues is an update of the relevant exceptions in the InfoSoc directive. Continue reading
With the Best Case Scenarios for Copyright series we have proved that copyright has a brighter side for users. For satire and critique, in teaching, research and journalism, even while preserving memories of beautiful spaces – copyright exceptions help artists, audiences, students, and tourists alike benefit from access to culture and education.
What is important, the copyright exceptions do not break creative markets and don’t put creators out of business. On the contrary – which poet wouldn’t want her poems to be translated in class? Which architect wouldn’t want his building to become a landmark everybody recognizes? Such a massive spread of cultural tropes is possible through the exceptions we have presented: freedom of panorama in Portugal, parody in France, education in Estonia and quotation in Finland.
So what are the mechanisms and tricks that make exceptions great? Any copyright exception needs to balance legitimate interests of both the users and the rights holders. When that balance is achieved we can have more than 4 best case scenarios for copyright.
We have identified 6 magic ingredients that make copyright exceptions and limitations great. Here is how to mix them to #fixcopyright:
The right to quote is a pivotal element of science, study, critique, and art. By evoking somebody else’s words and creations we are able to enter into an intellectual dialog that is a foundation of our culture. Quotations substantiate scientific discourse and discovery of new knowledge. They are used widely in memes that have become a signature feature of social media.
Within the Best Case Scenarios for Copyright series, we present Finland as the best example for quotations. Below you can find the basic facts and for more evidence check the Best Case Scenario for Copyright – Quotations in Finland legal study. EU, it’s time to #fixcopyright!
What is a quotation exception?
- A quotation exception to copyright refers to citations or other uses of protected works as a way to support intellectual creation.
- The exception is justified by the freedom of intellectual creation.