Copyright law does not have to criminalise users

The Abduction of the Sabine Women
Better copyright in two steps
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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.

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Industry, Research and Energy Committee’s draft opinion is more conservative than it would seem

Participants of the first Solvay Conference, in 1911, Brussels, Belgium
Copyright is important for research & industry
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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.

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Draft opinion from research committee promotes a TDM exception available to all

Portret van Deborah Delano lezend, James Abbott McNeill Whistler, 1858
The right to read is the right to mine
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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.
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MEP Stihler highlights user-generated content, but where’s freedom of panorama?

Melancholia
Amendments should focus on user rights
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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.

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MEP Stihler means well for education, but there is serious room for improvement

The Birth of Minerva
Even the best exception is broken with licensing
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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

Rapporteur Stihler wants to protect users from content filtering

Vue du théatre taillé dans le roc, près du jardins de la maison de plaisance d'Hellenbrunn (!) pris du dehors.
The filter must go, and so should article 13
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Catherine Stihler, Rapporteur of the Committee on the Internal Market and Consumer Protection (IMCO) released her draft opinion on the proposed Copyright in the Digital Single Market Directive. In this opinion, Stihler rightly states that article 13, which proposes to implement content filter mechanisms that would block some of users’ uploads, fails to achieve its purpose. She tries to make sure rightsholders and creators would receive a fair and balanced compensation for the exploitation of their work without negatively impacting the digital economy or internet freedoms of consumers. Acting on this, Stihler tries to fix article 13. However, we believe that the only appropriate response is to delete it altogether.

The filter must go

It is commendable that in her opinion MEP Stihler explicitly says that any attempt to address the value gap cannot be enforced if it has a negative impact on fundamental rights and internet freedoms of consumers. This is something the potential beneficiaries of the proposed article seem to ignore.

Explaining why the upload filter must be removed, MEP Stihler states that filter machines are not capable nor suitable to take into account user rights such as exceptions and limitations. This is something all the opponents of the upload filter, including COMMUNIA, have pointed out before. Therefore in her amendments she rightfully removes all references to the ‘effective’ recognition technologies, which would make the Directive text more technology neutral and future-proof. Continue reading

The draft IMCO opinion is clear: the right to read is the right to mine

Gdynia, the Polish winter sea
Limiting TDM is counterproductive
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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.”

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MEP Stihler proposes the only solution for proposed press publishers right: delete

Destruction_of_General_Hood's_Ordnance_Train_-_NARA_-_533417
The best option is to delete article 11
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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

Draft Internal Market Committee opinion introduces balance into the copyright debate

De baljuw voert de koe van de boer weg
Important steps in the right direction
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Yesterday, Catherine Stihler, the Rapporteur for the Internal market Committee of the European Parliament (IMCO) published her draft opinion on the proposed Copyright in the Digital Single Market Directive. As with the draft opinion of the CULT committee which we have extensively discussed here, here and here the IMCO draft makes it clear that the European Commission’s proposal is seriously flawed and requires substantial changes.

Catherine Stihler’s opinion contains proposals for amendments that address many of the issues that we have identified with the proposal, and on all of them she makes suggestions that move into the right direction (which includes proposal for a total of five new mandatory exceptions).

R.I.P. press publishers right

The ill-considered proposal to introduce a new neighbouring right for press publishers right is met with the only sensible answer: deletion of the relevant article and recitals. She points out, in line with what we have argued for, that the protection sought by publishers can be achieved with much less invasive means than the reaction of a new right:

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.

Together with indications that the rapporteur for the JURI committee is also not convinced that press publishers need such a right, this starts looking like the end for the short sighted idea of curing the problems of the press sector with additional rights.

No upload filtering requirement for online platforms

While Stihler’s opinion is less rigorous on the upload filtering provisions contained in Article 13 (which we would also like to see deleted), her approach to the mess created by article 13 covers all the right bases. Her amendments remove all references to filtering measures and “effective content recognition technologies” and make it clear that any new obligations do not contradict the E-Commerce Directive: Continue reading

Why Australian Schools Need Fair Use

Interieur met een vrouw die de krant leest
Australia on getting a better copyright for education
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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