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.
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
While the European Parliament is in the middle of its discussions about the European Commission’s proposal for a Directive on Copyright in the Digital Single Market, similar discussions are taking place in a number of Member State parliaments. The results of these conversations will influence the position that Member States take in the discussions in the Council.
A particularly interesting discussion has been unfolding over the past month in the Romanian Parliament, where on the 15th of March the IT&C Committee of the Chamber of Deputies organized a debate on the proposed directive, in order to collect the views of different stakeholders. After the event, the IT&C Committee produced an opinion addressed to the European Affairs Committee of the Chamber of Deputies, which is the group responsible for drafting the final report of the Parliament on the package proposal. The members of the IT&C Committee unanimously voted against the European Commission’s proposal and advised to withdraw it in its entirety.
While this is not a heavyweight vote and as such not likely to be taken over as the Romanian Government’s position, it represents the first entirely negative advice issued by national policy makers in a Member State. It is therefore interesting to take a closer look at the arguments for rejection. Continue reading
One of the issues that has been glaringly absent from the Commission’s proposal for Copyright in the Digital Single Market Directive is better protection of the Public Domain from Cultural Heritage Institutions who are trying to appropriate Public Domain works that they have digitized.
Most of Europe’s Museums, Libraries and Archives digitize Public Domain works in their collection in order to make them available without any restrictions (in line with our Public Domain Manifesto and Europeana’s Public Domain Charter). However, a minority of institutions uses loopholes in copyright legislation to claim exclusive rights over digital reproductions of works for which copyright protection has expired.
The legal basis for such claims is often found in copyright rules that also afford some form of protection to non-original photographs. These are photographic reproductions that qualify for copyright protection because they do not constitute the “own intellectual creation” of the author. Such loopholes exist in 7 EU member states and the proposed DSM directive would have been an opportunity to close them. Continue reading
The concept of content filtering has been making quite a career. Not only did it land in the copyright directive proposal, but also it has been introduced into the draft of the Audiovisual Media Service Directive (AVMSD) that is currently making its way through the European Parliament. In the context of the AVMSD, filtering of uploads by video-sharing platforms would serve to prevent legal audiovisual content that could harm children. As important as protecting children may be, the CULT Committee has just voted against that idea. This was the right thing to do.
A seemingly quick solution to filter whatever the decision makers don’t want users to see is a very dangerous tool in any context. It is an arbitrary approach to the flow if information online and as such it can be used as a censorship machine. This “automatized conscience” will operate on a very abstract definitions of content that could impair children’s “physical, mental or moral development” or incitement to terrorism, violence and hatred. Humans often argue about what constitutes such incitement with many cases finding their finale in court. How could we trust algorithms with such a dispute?
Fortunately, 17 members of the CULT Committee understood that. Nine of them either do not see the danger or have an unwavering faith in the potency of technology to solve complex societal problems. Hopefully, the AVMSD debate helped CULT Committee see both the danger and the pointlessness of content filtering and they will take a similar decision for a better copyright. After all, in the context of copyright, putting the interest of rightholders before the interest of the public is an even worse reason to employ algorithms as censors.
Now that most of the committees have published their draft opinions on the Commission’s Directive on Copyright in the Digital Single Market, it’s time to hear their members presenting their initial views. JURI hosted a meeting on 22 March where MEPs voiced a range of opinions on various aspects of the copyright reform proposal. The divide between the MEPs seems to run deeper than mere disagreements on definitions; instead, they underscore a fundamental schism in the MEPs’ understanding of the world we live in.
Some MEPs reacted to the copyright reform proposal using a 20th century ordering of the world, where mass-scale creative industries emerged and eventually were consolidated. For MEPS such as Jean-Marie Cavada (ALDE, France) or Angelika Niebler (EPP, Germany) the world has not changed all that much in terms of where important stuff happens. Cavada and Niebler think publishers and other rightsholders produce all the real value, while the internet and new sharing technologies is like a portable TV that that main purpose of is to constantly rip them off.
Seeing the world like that, it’s no wonder that they mostly approve of the European Commission’s original proposal, and oppose reforms that champion users’ rights, which for the most part they see as legitimizing tech-enabled theft. There is no coincidence that many of those creative industry backers are from France and Germany, countries that built their considerable entertainment industries well before the digital era.
Today, MEP Therese Comodini Cachia, the European Parliament’s main rapporteur for the proposed copyright in the Digital Single Market directive published her draft of the JURI report (pdf) on the Commission’s proposal. In line with the initial reactions from the rapporteurs from the Culture and Education (CULT), Internal Market and Consumer Protection (IMCO), and Industry Research and Energy (ITRE) committees Ms. Comoidini’s report points out substantial flaws in the Commission’s unbalanced and backward-looking proposal.
Unlike her colleagues from CULT and IMCO Comodini has limited her report to fixing flaws in the provisions proposed by the Commission. While such fixes are important, this means that her draft report constitutes a missed opportunity to introduce more forward-looking provisions that would strengthen the position of users such as much-needed exceptions providing legal certainty for user generated content and ensuring freedom of panorama in all of the EU.
Below we provide a brief overview of the changes to the Commission’s proposal that Ms. Comodini proposes in her draft report. We will follow-up over the next few days with more in- depth analysis of individual issues.
R.I.P ancillary right for press publishers
Her most straightforward intervention is to delete the Commission’s proposal for a new neighboring rights for press publishers. In line with what we and many others had proposed she instead proposes to solve the enforcement problems of press publishers by improving their ability to act against infringing uses of works published by them:
Member States shall provide publishers of press publications with a presumption of representation of authors of literary works contained in those publications and the legal capacity to sue in their own name when defending the rights of such authors for the digital use of their press publications. (AM 52)
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