MEP Joulaud’s opinion resurfaces non-commercial freedom of panorama

Ivens & Co. Fotoartikelen. Amsterdam Spuistraat 216 Nijmegen, Groningen
Europe needs a broad freedom of panorama right
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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.

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European Commission doesn’t want to say how the directive was conceived

The Birth of Minerva
does the directive come from one man's head?
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Wouldn’t we all want to know how the copyright reform proposal gained its current shape? Was it at a roundtable of sages? Did someone knock Commissioner Günther Oettinger’s head and the proposal sprung out? We have filed an access to documents request (FOIA) to find out what the EC legal services’ opinion was in this process.

Chances are we will not have full clarity on the evidence that substantiated the proposed directive on copyright in the digital single market. After European Digital Rights filed a request to access the correspondence between Commissioners, cabinets and services on the proposal for a copyright Directive in October 2016, the recent response was that there is 1 (ONE!) email that meets the criteria. It would seem that the Commission have a strong oral tradition and excellent collective memory if this is really the only recorded evidence to attest to the quality of the process.

To make things worse, the email cannot be revealed because “the disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure”. We believe that the public interest in knowing how absurdities such as new rights for publishers or the upload filter found its way to the proposal is indeed overriding the secrecy of the only email that has ever been exchanged on the topic. Obviously EDRi has filed a confirmatory application to review the handling of the request that is yet to be considered by the EC.

To learn more about the legality of the most problematic parts of the proposal, Centrum Cyfrowe, COMMUNIA member, filed a FOIA to access the European Commission’s legal service opinion(s) on the drafts of the proposal on February 13, 2017. With the two processes, the Commission has a chance to make the right choice and spill the beans on their intel and sources. If the European Commission decides otherwise, we will be left wondering if the proposal is a result of some intense industry lobbying, or perhaps of unpreparedness of DG Connect to properly address challenges of the 21st century.

Refusal will give a bad name to the EC legal services that could have let out a really bad piece of lawmaking that contradicts existing regulation as well as the EU case law. Moreover, the Commission will prove again that it is one of the least transparent European institutions while keeping its finger on the trigger of change that will shape our digital lives for many years to come.

Culture and Education Committee does not fight for a copyright that supports education

Cure of Folly (Extraction of the Stone of Madness)
Nothing traditional about remunerating exceptions for education
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Last week we started discussing the the draft opinion of the Culture and Education Committee of the European Parliament, presented by rapporteur Marc Joulaud. While he rightly points out how unbalanced the proposal is as it ignores many of the most pressing concerns of internet users, he does not help the discussions surrounding the ‘press publishers right’ by introducing a murky non-commercial clause. Today we discuss his amendments for education. In short: it does not spell good news for educational stakeholders. In a move that on the surface aims to provide greater clarity, Joulaud pushes for even stronger reliance on licensing for educational uses. Furthermore, he proposes to make remuneration for digital teaching uses mandatory. We opposed both these changes from the very beginning of the discussion on the scope of the copyright reform.

It is worth noting that the issue of exceptions (in particular for education) has not received as much attention as the link tax (art 11) or the content filter (art 13) in the whole debate on the proposed directive. Yet it is crucial from the viewpoint of a Committee that deals with education, and Joulaud rightly sees it as one of four key issues.

Joulaud, in the justification to the opinion, and in an opinion piece published by the Parliament Magazine, declares support for a balanced approach:

If the protection of intellectual property is a fundamental right, it should not be a disproportionate obstacle to the use of works for public interest.

He adds:

[…] for instance by threatening existing and perfectly viable ecosystems, like commercial licenses for data mining or educational licensing schemes.

This is reasonable as a general statement, but we’ll see that it leads Joulaud to propose amendments that are hardly balanced.

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Limiting the snippet levy to commercial use is tangling up an already muddy issue

elsevier
Ancillary copyright: still bad policy
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The Rapporteur Marc Joulaud of the Committee on Culture and Education (CULT) recognises the problem with proposed article 11 regarding protection of press publications concerning digital uses – it can threaten hyperlinking and various ways users use content online. In Communia’s opinion the Commission’s proposal to introduce a right for press publishers is poorly aligned to the objective of modernising the EU copyright framework and adapting it to the challenges of a fast-evolving digital environment. In the light of the above we believe that the only solution is to remove the whole idea from the directive. This is not the approach shared by CULT – instead 3 problematic changes were proposed:

  1. the limitation of the ancillary copyright is only for commercial purposes,
  2. the confusing and vague attempt to carve out snippets, and
  3. the term of protection is to be 3 years, which is still too long for news.

Muddy area’s still unclear

Instead of solving the problem, the Rapporteur Marc Joulaud made everything even more tangled by adding to the proposed scheme the requirement that press publication must be used ‘for commercial purposes’. As we raised before in freedom of panorama discussion, implementing a distinction between commercial and non-commercial use, namely two very vague terms, is never a good idea. It will muddy any legal certainty for citizens engaged in sharing press publications.

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Evidence from Spain shows that new rights for publishers become a racketeer tax

chokehold on aggregators
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Coincidence has written a postscript to our yesterday’s post Good news! Quality journalism doesn’t need the snippet levy. A recent tariff on how much linking will be charged for revealed by the Spanish Reproduction Rights Centre (CEDRO) shows that publishers’ appetites are great and likely to ruin online access to content we need and like.

CEDRO decided that per each active user per day it wants to charge a daily rate of € 0,05044854. We can endlessly discuss if this arbitrary rate is a lot or not much per user-day. But this is where the economy of scale of 5 cents is pivotal – Menéame, a Spanish aggregator has an average of 139 thousand unique users accessing their site per day. So 5 cents scales up to a quite substantial 7+ thousand euro per day and that to an astronomic 2,56 million euro per year.

The problem is that this is 20 times as much as Menéame’s annual turnover (125 thousand euro). In short, a piece of legislation aimed at Google chokeholds smaller enterprises while reinforcing the giant’s dominant position.

What is perhaps worse, we have landed in this mess based on false assumptions: whatever affects the traffic to news content (could it be the decreasing quality of the news and proliferation of meaningless clickbait? Hmmm…) it is not the aggregators. As research shows they in fact assist users in optimizing their attention economy and in result sustain the traffic.

Based on these false assumptions the publishers want to racket sums that have nothing to do with the economic situation or the scale of operations of the aggregators in a strive to compensate an imaginary loss by ripping off those who in fact help news readership. By doing so the rightsholders resemble thugs that raid a bar and extort payments only because the bar is in their neighborhood.

Say no to the racketeer tax in EU!

Now, thanks to the European Commission’s copyright directive proposal we are facing the danger of that mess spilling all over Europe. If you feel you’d like to do something about this, write an email to Members of the European Parliament from your country to kick off article 11 from the copyright directive proposal. There is still time to stop this nonsense.

Great news! Quality journalism doesn’t need the snippet levy

A woman shouting into a man's ear-trumpet. Wood engraving.
no new rights for publishers!
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As we vocally oppose the proposed new rights for press publishers, we’re often asked what could be done instead to ensure the quality of journalism in the digital era. The good news is there are examples of how good journalism could be assisted. The even better news is that these solutions do not require such level of protectionism as the European Commission seem to think they do.

Scaling up a horrible idea

To recap the issue: the new rights for publishers, called also the ancillary copyright or the snippet levy, would require online services to pay for linking to articles that are up to twenty years old. Almost every news link with an explanatory extract (a snippet) placed in a search engine would be subject to a fee. This measure included in the proposed directive on copyright in the digital single market, despite a spectacular failure of similar mechanisms in Spain in Germany, is heavily backed by powerful media outlets. Their argument: aggregators such as Google news make money on ads placed by the content they aggregate, while the newspapers suffer from the disruption technology brought.

In January 2017 we know better than ever that we need quality journalism as one of driving forces behind democratic debate and choices people make casting election ballots. And we all know it costs. But the assumption that the snippet levy will work if enough countries are bullied into adopting it through a European directive is the textbook example of insanity – it is employing the method that had already failed and expecting a different result. Instead, we should be looking into other European countries where non-regulatory measures improving business models are adopted, and search for an inspiration from places where that level of public interventionism does not happen and publishers have to adapt to the digital age in other ways.

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Call for Signatories: A Better Copyright Reform for Education

Johan de Witt 's nachts op straat aangevallen
Support our Letter to MEPs
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Update February 7th 2017: We have now closed our call for signatories and have updated the supporting organisations and individuals list in the post below. Thanks again for the big support for this call for a better copyright reform for education. 

COMMUNIA, together with other advocates of quality education in Europe, has developed a letter to members of the European Parliament. In the letter we express our concerns that the proposed directive on copyright in the Digital Single Market will make things worse for education. We make recommendations that would help copyright transform into copyright fit for modern, quality, and inclusive education and ask for amendments in line with these recommendations. Please read the full letter here.

Help us in supporting a better copyright for education

We want to gather wide support, so that we can impact the current copyright proposal. If you personally or your organisation wants to sign the letter, contact Lisette Kalshoven (lk@kl.nl). We accept additional signatories until February 6th 12:00 CET. We thank you for your support.

Right now the letter is supported by the following organisations: Continue reading

Evidence-based copyright policymaking should be a no-brainer

Adreskaart voor boekhandel Scheltema en Holkema
Beware, evidence-free policymaking ahead
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It’s Copyright Week and today’s topic is “Transparency and Representation”. Copyright policy must be set through a participatory, democratic, and transparent process. It should not be decided through backroom deals, secret international agreements, or unilateral attempts to apply national laws extraterritorially. Unfortunately, in many aspects the European Union is not meeting such standards.

The European Union began to consider updating its copyright rules in 2013. In September of last year the European Commission released its proposal for a Directive on Copyright in the Digital Single Market. Unfortunately, the plan fails to deliver on the promise for a modern copyright law in Europe. It also does not take into account results of consultations that the Commission has conducted.  

It’s obvious to us that any legislative proposal should be developed from reliable, impartial economic and policy research whose foundation is based on evidence and facts. This information should be broadly available for public inspection, and public institutions should solicit and fairly incorporate feedback from a wide range of stakeholders. The process undertaken by the Commission hasn’t lived up to these expectations.

Representation does not work if the consultation process is broken

The Commission released its copyright plan simultaneously with the long-overdue results of the public consultation on the panorama exception, and the press publisher’s right. This is a prime example of lack of commitment to transparency nor representation. As written in an earlier post:

The public consultation on freedom of panorama and ancillary copyright ended on 15 June. We think that the public input should have been analyzed by the Commission and released to the public long before any public release of a Directive in which those topics are discussed. Doing so would have demonstrated reasonable and responsible policy-making on behalf of the Commission. But by releasing the summaries of these consultations at the same time as the Directive—when it was far too late for the public to understand the Commission’s thinking, let alone advocate for other changes—only reinforces the EC’s disingenuousness in having a public consultation in the first place.

But looking beyond process considerations, it’s clear that a large swath of substantive feedback was mostly ignored by the Commission. We and many other respondents urged the Commission 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. The Commission decided not to include it in their proposal.

Link tax and evidence-free policymaking

But perhaps the Commission’s approach to the press publisher’s right (also known as ancillary copyright, linktax, etc.) is a better example of evidence-free policymaking. In opposition to much of the public feedback on this measure, the Commission still introduced the press publisher’s right within their copyright proposal. Their summary report on the public consultation does not communicate that there were nine times as many users, consumers, and citizens who opposed the introduction of the right than press publishers who supported it. The logical conclusion as to why the Commission doesn’t mention this—or provide any sort of numerical breakdown of respondents ‘for’ and ‘against’—is because it would plainly show that there is massive opposition to the introduction of a right for press publishers.

But even if we look beyond public opinion, there’s obvious and direct evidence that a press publisher’s right does not work. Similar rules have already failed to achieve their primary goals in Germany and Spain. A new right will not only fail to increase publisher revenues, but also decrease competition and innovation in the delivery of news, limit access to information, and create widespread negative repercussions for related stakeholders.

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New study explores possible effects of counterproductive press publisher’s right

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At the end of December we published a position paper on the Commission’s proposal to introduce new rights in publications available to press publishers for control over the digital use of their content. The right would apply for 20 years, and would also apply retroactively to content already published. From our perspective, the press publishers’ right will not only fail to increase publisher revenues, but also decrease competition and innovation in the delivery of news, limit access to information, and create widespread negative repercussions for related stakeholders. For this reason we argue that Article 11 (“Protection of press publications concerning digital uses”) should be removed from the proposal.

Today, OpenForum Europe published a paper written by Prof. dr. Mireille M.M. van Eechoud which analyses the press publisher’s right (they call it “PIP”, for short). The study examines the justifications for the proposed press publisher’s right, and assesses how it would fit in the EU copyright framework. (Read full paper here)

The report echoes the skepticism (and dearth of evidence) about whether an additional right would even be able to address the challenges faced by press publishers today:

Neither the Impact Assessment nor the Commission Communication explains in what way the introduction of an additional layer of rights would facilitate the clearing of rights for online uses and reduce transaction costs for all stakeholders concerned. The claims that are made about the causal relationship between the introduction of a publisher’s intellectual property right, increasing revenues and a sustainable press leading to media diversity, are not substantiated with data.

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Ansip is forgetting about important parts of education

Bible Reading
Leaving important educational players behind
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On his blog just before Christmas, Vice President Ansip made a case for a simple copyright law for education to help Europe’s teachers and students. While we can only support a simple copyright law that supports education instead of making it harder for educators to teach, the Commission did not propose such a solution in the directive. The Commission has limited the new exception to official ‘educational establishments’ and has written a preference for licenses over the exception in the text. By doing so they are leaving important parts of education behind.

Leaving important players behind

Ansip writes about the important transition from solely physical education to embracing digital technologies. In the process, the patchwork of exceptions to copyright for educational purposes across Europe blocks much innovation in education:

Unfortunately, there are many differences around Europe in how these exceptions are applied, especially when it comes to using copyright-protected material in digital or online teaching activities.

Digital technologies are transforming the teaching and learning environment. They are being used more and more throughout education: laptops in the classroom to show video clips, interactive whiteboards to display webpages, for example.

But current EU law does not properly address digital’s significant presence and influence in the learning environment. It needs to catch up.

This makes it strange that the Commission’s definition of ‘learning environment’ is so limited to official educational establishments in the proposed directive. Education is understood today as a lifelong process that is conducted by a multitude of institutions, and even learners themselves. This was noted in the Commission Communication ”Making a European Area of Lifelong Learning a Reality” and the subsequent Council Resolution of 27 June 2002 on lifelong learning. Yet, when defining copyright law, the European Commission fails to embrace its own lifelong learning approach by limiting the potential beneficiaries of the proposed exception to ‘educational establishments’. 

In doing so, the proposed exception will leave unharmonised the digital uses for educational purposes made by other individuals and organisations, such as the great value that museums, libraries, archives, professional associations, and civil society organisations give to education. Think for example of education about the dangers of drugs that civil society organisations provide for teenagers, or the great educational programmes of libraries that help Europeans embrace their local culture. This limitation would also exclude employees, apprenticeships and practical learning as vocational education at their company, which is a key part of Europe’s lifelong learning goal.

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