European Parliament legal affairs committee pushes for strong exception for text and data mining

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unlocking research possibilities for all
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MEP Therese Comodini Cachia, Rapporteur for the European Parliament’s influential Committee on Legal Affairs (JURI), finally released the official version of its already-leaked draft opinion on the Commission’s Directive on Copyright in the Digital Single Market.

As we explained yesterday, Comodini’s draft misses the opportunity to introduce more forward-looking provisions that would strengthen the position of users such as a much-needed exception for user-generated content and freedom of panorama. At the same time, there are positive amendments, including the removal of the ill-advised ancillary right for press publishers.

The JURI draft amendments are quite positive with regard to the exception for text and data mining. The Commission’s original proposal limited the beneficiaries of the text and data mining exception only to research organisations, and only for purposes of scientific research. Comodini’s amendments would expand the TDM exception to apply to anyone for any purpose. In addition, it would mandate that publishers provide a mechanism for users who otherwise do not have legal access to the corpus of works to be able to engage in TDM on the publisher’s content, possibly after paying a fee to those publishers. Finally, the amendment would direct Member States to setup a secure facility to ensure accessibility and verifiability of research made possible through TDM.

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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?

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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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Rapporteur Stihler wants to protect users from content filtering

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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

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

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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.

European Parliament opinion slams European Commission for unbalanced copyright proposal

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

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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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Evidence-based copyright policymaking should be a no-brainer

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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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