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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Rapporteur CULT preserves upload filters in draft opinion

Experiment met luchtledige bol, Valentine Green, after Joseph Wright of Derby, 1768
upload filters should be removed from the proposal
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Marc Joulaud, the rapporteur for the Culture and Education Committee of the European Parliament, points out in his draft opinion issued last week that the Commission’s copyright proposal ignores many of the most pressing concerns of internet users. At the same time, he fails to deliver adequate solutions to these problems. In this post we discuss his proposed amendments concerning the exception for user-generated content (UGC), and Article 13. The inclusion of a UGC exception is a step in the right direction. But the proposed amendments to Article 13, the section which introduces a filtering obligation for online platforms that allow users to upload content, make the already-harmful article even worse for users.

Adding a vague definition of ‘digital content platforms’

Joulaud recognizes that the scope of services potentially affected by Article 13 is quite unclear.

It is the Rapporteur’s opinion that the proposal does not define with enough precision the scope of services falling under the requirements of Article 13 of this Directive, creating legal uncertainty and a potential broader effect.

However, the solutions he proposes do not strengthen the legal certainty for those entities who might be covered under the article; they make it worse. Joulaud proposes a new definition of entities obliged to use upload filters called ‘digital content platforms’. This definition is aimed to center around the principle purpose of services instead of the activity of storing. The draft opinion is unclear regarding which information society service providers would count as ‘digital content platforms’, and it’s also uncertain whether these platforms would still receive the protection of the liability limitations of the eCommerce Directive. Just like the Commission’s proposal—which remains vague on how it will affect the safe harbor protection—Joulaud’s suggested amendment doesn’t provide any more clarity to the situation.

Upload filters don’t—and can’t—respect user rights

The most important flaw of the draft opinion is that even though Joulaud seems aware of the importance of user rights, he still tries to reconcile ‘effective’ content recognition technologies with user rights, including exceptions and limitations and freedom of expression. This is an impossible task. Continue reading

Culture Committee Doubles Down on Restricting Research Opportunities in the EU

Figuren bij een drukpers
A good TDM exception will strengthen science
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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 rightly shows that the Commission’s proposal ignores many of the crucial concerns voiced by internet users, and offers some amendments to rectify the situation. At the same time, the opinion suggests an ill-advised change to the proposed ‘press publishers right’ by introducing a non-commercial clause. In addition, CULT pushes for an even stronger reliance on licensing, instead of supporting a broad copyright exception for education.

But perhaps the area of the draft CULT opinion that is most detrimental to users and the Digital Single Market is in the suggested amendments to the text and data mining (TDM) exception. The Commission’s original proposal was nothing to write home about. Instead of championing a progressive policy to boost scientific discovery and innovation in the EU by introducing a TDM exception that would apply to anyone for any purpose, the Commission decided to limit the scope of the exception to only not-for profit research organisations, and only for purposes of scientific research.  

The draft CULT opinion goes even further in restricting the ability to engage in TDM in the European Union. Continue reading

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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European Parliament opinion slams European Commission for unbalanced copyright proposal

Spotprent op het bedrog van de firma C. de Bruyn & Zonen
Users rights need to be part of the balance!
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Earlier today Marc Joulaud, the CULT rapporteur for the proposed Copyright in the Digital Single Market directive, published his draft opinion on the proposed directive. Joulands draft opinion is the first of many similar documents dealing with the Commission’s proposal that will emerge from the European Parliament in the next weeks and while it will likely undergo significant changes it is a really promising start of the parliamentary process.

The draft opinion contains 85 amendments to the text of the Commission’s proposal that deal with all aspects of the directive. Over the next few days we will provide more detailed analysis of his proposals for a number of the issues that COMMUNIA has been focussing on such as the proposed exceptions for TDM and education, the new right for press publishers and the content filtering obligation for user uploaded content.

Users’ rights need to be a part of the debate

While we certainly do not agree with all of his positions, Joulaud’s draft opinion deserves to be praised. In line with our own analysis of the Commission’s proposal, Joulaud observes that the proposed directive is out of balance as it ignores many of the most pressing concerns of internet users:

It is the Rapporteur’s view that the proposal does not acknowledge the position consumers, as service users, now occupy in the digital environment. No longer playing a mere passive role, they have become active contributors and are now both a source and recipient of content in the digital ecosystem. […] digital practices of users do not benefit from legal certainty under the current copyright rules, in particular the exceptions and limitations, and therefore require a specific approach, a fourth pillar within this Directive.

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