(With Teresa Nobre).
Last week, the Committee on Culture and Education (CULT) of the European Parliament voted on its final opinion concerning the Commission’s Directive on Copyright in the Digital Single Market. Copyright law in the shape proposed by the CULT MEPs would spell disaster for educators and educational institutions across Europe.
This post aims to provide educators with an overview of the changes to the draft Directive proposed by rapporteur Marc Joulaud, a French MEP from the EPP group, and then through amendments by the members of CULT. We start with an analysis of two clashing logics visible in the CULT debate, followed by an overview of key decisions made during the vote. We finish with advice on next steps in the ongoing fight to secure an educational exception that meets the needs of educators.
If you want to learn more, we have been covering the policy process from the start, with a focus on how the new law will affect educators.
Copyright and education: two clashing views
There are two clashing viewpoints in the ongoing debate on the new educational exception, and each represents a different approach for how to achieve the goals defined by the Commission in its Communication on the DSM strategy and subsequent Directive. These goals include “facilitating new uses in the fields of research and education” and providing a “modernised framework for exceptions and limitations”—which will result in a situation where “teachers and students will be able to take full advantage of digital technologies at all levels of education”.Continue reading
Last week the Culture and Education Committee (CULT) and the Committee on Industry, Research and Energy (ITRE) voted on their final opinions on the Commission’s Directive on Copyright in the Digital Single Market. As our friends at EDRi have highlighted, both committees voted for measures that would make the Commission’s already bad proposal even worse. The ITRE and CULT (not published yet) opinions are particularly bad regarding the question of new rights for publishers.
The introduction of a new right for press publishers (aka the “link tax”) to extract fees from search engines for incorporating short snippets of – or even linking to – their content in article 11 is one of the most controversial issues of the proposed directive. Adopting this type of ancillary right at the EU level would have a strong negative impact on all stakeholders, including publishers, authors, journalists, researchers, online service providers, and readers.
We know that previous experiments with ancillary copyright in Spain and Germany have failed, a fact that was already known to the Commission because it is acknowledged in its impact assessment leading up to the release of the original proposal. We’ve argued that a new right for press publishers would undermine the intention of authors who wish to share without additional strings attached, especially creators that use Creative Commons licenses to share their works. We urged that the provision be removed from the directive.
In recent months there seemed to be an increasing focus on neutralizing this contentious provision. MEPs such as IMCO Rapporteur Catherine Stihler and former Legal Affairs Committee Rapporteur Therese Comodini had gathered support for deleting the press publishers right. Despite of this, last month the new right was retained in the opinion of the IMCO Committee. The opinion removes the clause of the Commission’s proposal which would retroactively apply the publishers right to anything published in the last twenty years. Continue reading
Tomorrow the Members of the Culture and Education Committee of the European Parliament (CULT) will vote on their position on the proposal on Copyright in the Digital Single Market directive. This will be the second vote in the European parliament after last month’s vote in the IMCO committee. While the CULT committee is nominally responsible for Culture and Education it seems rather likely that tomorrow’s vote will result in an one sided opinion that would support the key elements of the flawed directive, making them worse in many areas. Below is a quick rundown of what is on the table during tomorrow’s vote. We have listed voting recommendations for CULT MEPs interested in enacting real copyright reform that will foster Europe’s cultural and educational sectors:
Expand the scope of the text and data mining exception
We have argued many times that Text and Data mining should not be covered by copyright at all. A TDM exception such as the one proposed by the Commission would then be unnecessary. Any TDM exceptions enacted in spite of this would need to be as broad as possible both in terms of beneficiaries and in terms of purpose. Unfortunately the compromise amendment on the issue does nothing to broaden the scope of the proposed exception and merely reaffirms the Commission’s backwards looking proposal. MEPs should reject the compromise amendment and vote for AMs 337, 356, 360, 362 and 364 Instead.
Broaden the education exception to fit the needs of education in the 21st century
On the proposed education exception the Culture and Education committee seems intent to abandon the needs of 21st century educators. Instead of improving the Commission’s half-baked proposal, the compromise amendment reaffirms or worsens the most problematic elements of the proposal: Continue reading
Two weeks ago the IMCO committee managed to give a new breath of life into the proposal for an ancillary copyright for press publishers that many observers (including us) had presumed to be more or less dead in the water. Following on the heels of this surprising development interesting information is emerging from Spain where a similar right has been existing since 2015. The situation in Spain shows how ineffective additional rights for publishers are and how publishers try to influence the EU policy debate on copyright reform by manipulating evidence.
Earlier this week the Spanish Association of Publishers of Periodical Publications (AEEPP) published an English version of a study that assesses the impact of the introduction of the ancillary copyright (article 32.2 of the Spanish Copyright Act) in Spain. This article states that a copyright fee must be paid by sites aggregating or otherwise linking to online news to the publishers of such news. These payments (referred to as a Google Tax, after the fact that they seem to be primarily intended to extract revenue from Google) are collected by the CEDRO copyright collection society.
The study comes to a pretty devastating conclusion that clearly shows that granting a new right to press publishers is highly problematic and will not have the desired result of stabilising the business models of struggling publishers:
This analysis concludes that there is neither theoretical nor empirical justification for the introduction of a fee to be paid by news aggregators to publishers for linking their content as part of their aggregation services. Likewise, the arbitrary nature of the fee, which prevents publishers from opting out of receiving the payments, inflicts harm on a large number of outlets, particularly small publications.
Moreover, the introduction of such a fee has a negative impact on competition, not just for the aggregator segment, but also for online publications and, ultimately, for consumers, including readers and advertisers. Continue reading
As reported last week, the voting of the Internal Market Committee on the Draft Opinion on the proposed DSM Directive was full of plot twists, but none related to the issue of education. The Committee adopted its compromise amendment to article 4 and it was applauded by many, since this amendment offers a better solution to the obstacles faced by educators and learners across Europe than the Commission’s proposal. Yet, the educational exception resulting from this compromise is still not suitable to the modern needs of educators and learners across Europe.
Giving preference to new licenses is always a bad idea
The IMCO amended article 4(2) in order to give precedence only to extended collective licensing (ECL) schemes. This shows appreciation of the weak position of educational institutions to negotiate individual licenses, and thus represents a progress in relation to the Commission’s proposal. However, it’s not enough to guarantee that the new exception will not simply be replaced by ECL schemes all over Europe.
The ECL schemes have been in existence in the Nordic countries for a long time now, and there’s a general understanding that they have to be protected in those countries. We cannot overemphasize the fact that the term “limitation” in article 4(1) encompasses compulsory or statutory licenses. On the other hand, works of authors that opt out from voluntary licenses will fall under the exception anyway. In other words, maintaining article 4(2) is not that relevant.
What policy makers that want to protect the public interest related to education should worry about is that ECL may be exported to countries with no tradition whatsoever of implementing such schemes. These are also countries which currently do not foresee any compensation for most or all of the uses made under their educational exceptions. They might be forced to introduced compensation, based on the proposed law.Continue reading
Politics is full of plot twists and we have witnessed that today during the IMCO Committee vote on its opinion regarding the copyright directive proposal. The new rights for publishers that seemed to be red line for so many Parliamentarians have made their comeback. The upload filtering provisions have been removed—despite some MEPs’ efforts to make them even stronger. If the reform package was actually a coherent vision instead of a wish list of shortsighted interventions, we could be celebrating an entirely different vote.
The upload filter is gone, the e-commerce Directive is intact
In a surprising move, the Committee adopted the EPP proposal to include Article 13 as drafted by LIBE rapporteur Michal Boni into IMCO’s opinion. IMCO rapporteur Catherine Stihler supported these amendments over the compromise she had made with other Parliamentary groups: S&D, ECR, ALDE, GREENS and GUE. Since it was quite clear that the deletion suggested by some Committee Members is not an option for this article, it is seems like one of the best possible outcomes that MEP Boni’s proposal has been picked up by IMCO.
Rapporteur Boni’s take on how platforms should cooperate with rightholders offers a rational distinction between entities falling under the scope of Article 13 and those protected by the e-commerce directive exemptions. It also steers clear of content recognition and technological measures as the go-to solutions for shaping that cooperation regarding MEP Stihler’s compromise amendment.
Red line? What red line?
The big surprise of the IMCO vote is the U-turn it took on the issue of new rights for press publishers (a.k.a “the link tax”). Rapporteur Stihler proposal to delete all of Article 11 had gained some traction in the Committee, which resulted in about a dozen other IMCO Parliamentarians also tabling provisions to remove it. In the vote, however, the amendments to delete were almost entirely rejected. The Commission’s version of Article 11 has been adopted with some tweaks: hyperlinking would not fall under the new right, and the new law would not be applied retroactively.
Now that the EU Parliament committees have introduced their amendments to the Commission’s Directive on Copyright in the Digital Single Market, it’s useful to take a look back at the evolving nature of various aspects of the reform. This week we’ll review the copyright exception for text and data mining. Text and data mining (TDM) enables mechanical analysis of huge amounts of text or data, and has the potential to unlock interesting connections between textual and other types of content. Understanding these new connections can enable new research capabilities that result in novel technological discoveries, critical scientific breakthroughs, journalistic endeavors, and new business analytics opportunities.
The Commission first asked about text and data mining in its 2013 public consultation on the review of the EU copyright rules, and Communia responded to the call for feedback. We argued that text and data mining should be considered as an extension of the right to read—that mining texts and data for facts is an activity that is not and should not be protected by copyright. We noted that TDM should not be addressed through contractual-, license-, or fee-based approaches, and urged that technical protections measures should not prevent users from engaging in text and data mining activities. We argued for legal clarity in our 2015 policy paper on the the review of the EU copyright law: “the development of clear rules for researchers who must be able to read and analyse all information that is available to them, whether through text and data mining or otherwise.”
The Commission’s Crippled Proposal
In September 2016 the European Commission released its copyright reform directive. For the most part it lacked a progressive vision, adequate protections for the public interest, and workable solutions to promote the European digital single market. This characterization is equally applicable to how the Commission handled text and data mining. In our response to the directive, we noted that it’s good that the Commission recognized that researchers encounter legal uncertainty about whether—and how—they may engage in text and data mining, and are concerned that publishers’ contractual agreements may exclude TDM activities. So, in this respect it’s positive that the Commission introduced a mandatory exception to copyright for text and data mining that would forbid contractual restrictions or terms of service from interfering with the right to exercise the exception.
Earlier today MEP Julia Reda has published two documents containing “EPP alternative compromise amendments” to the IMCO draft opinion on Copyright in the Digital Single Market directive. These documents propose alternative “compromise” AMs on the proposed publishers rights (article 11) and on the so called “value gap” (article 13). Both documents have been drawn up by MEP Pascal Arimont, the EPPs shadow rapporteur in IMCO and contain the most brazen attempt so far to push through a rightsholder agenda that goes even further than the commission’s flawed proposal. While it is unclear how much support these amendments have it is very clear that they express extremist positions rather than “compromises”.
Press publishers über alles
The first set of “compromise” amendments deals with article 11 and the associated recitals and represents an unprecedented land grab on behalf of press publishers. As part of this “compromise” proposal MEP Arimont wants to extend the term of protection for the new publishers right from 20 years (as proposed by the Commission) to 50 years. In addition he proposes to extend the right to include academic publications (which were explicitly excluded from the commission’s proposal) and also applies it to analogue uses.
This massive extension of the publisher’s rights will still be very unlikely to generate new income streams for publishers, not to mention delivering on the promise to ensure journalists get an “appropriate share of the remuneration”. Instead, it will cause substantial collateral damage. Libraries and other cultural heritage institutions will suddenly see themselves confronted with a new class of rightsholders who can make claims for publications that have been published many decades ago. As a result libraries will likely need to take archival collections off line and spend additional resources on clearing rights.
The EPP proposals will also introduce massive uncertainties for anyone linking to press publications online. According to the proposed language any hyperlink that contains “the key information which was to be conveyed” would be infringing. The proposed standard is as ridiculous as it is impractical. Unfortunately this does not seem to register with the EPP MEPs responsible for these “compromises” who are clearly willing to throw everyone else under the bus in their attempts to grant press publishers new exclusive rights. Continue reading
Yesterday we sent an open letter on copyright reform to the EU Member State ministers attending the Competitiveness Council. We have done so together with more than 60 other civil society and trade associations – representing publishers, libraries, scientific and research institutions, consumers, digital rights groups, start-ups, technology businesses, educational institutions and creator representatives.
The letter reflects our growing concern over the fact that the EU is wasting the long overdue opportunity to reform its outdated copyright framework. And that we are missing a chance to make it fit for purpose in the digital environment. At the root of the problem is the Commission’s backward looking proposal for a copyright in the digital single market directive that was presented in September of last year.
More than half a year later we see the discussion on the reform proposal caught up within the narrow vision that the Commission has presented. While the European Parliament is so far moving in the direction of fixing the biggest flaws of the Commission’s proposal and seems to be willing to introduce some additional positive elements, the Member States are moving in the opposite direction. There is a lot of concern that Member States are attempting to hollow out the positive aspects of the proposal while doubling down on the measures designed to protect the business interests of legacy intermediaries (such as publishers and record companies).
Given this we have joined forces with a diverse group of stakeholders to ask the Member States (and other EU lawmakers) to oppose the most damaging aspects of the proposal and to embrace a more ambitious agenda for positive reform. In particular the open letter is highlighting three key messages: Continue reading
We were hoping that the Committee on Civil Liberties, Justice and Home Affairs (LIBE) rapporteur Michal Boni would make use of the Committee mandate to suggest deletion of entire article 13 from the proposed Directive on Copyright in Digital Single Market. That didn’t happen. The justification of the report reflects a hope that the idea to regulate agreements between platforms and rightholders can be sustained while respecting fundamental rights of users. But do the LIBE amendments meet that goal?
Looking beyond technology
The very good news is that Rapporteur Boni proposes to remove content recognition and all references to the use of technology as a default option from the directive. MEP Boni also explicitly says in his report that the implementation of the agreements should not impose any general monitoring obligations.
Here the report builds nicely on theapproach paved by the JURI’s rapporteur MEP Comodini in her report. The removal of references to technology opens the path to looking for a variety of solutions in negotiating the division of revenues between service providers and rightholders. No doubt that technologies will be employed to verify if content is uploaded legally. But the EU copyright legislation should not require a direct connection between the business discussion on who the revenue should go to and the surveillance of users uploading stuff on a platform. Continue reading