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.
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
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.
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?
Better education makes better economy
In the information economy, modern accessible education is a cornerstone. Now that across all industries there is an enormous demand for workers that can keep up with developments in technology and knowledge, lifelong learning becomes an inseparable element of any professional career.
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.
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
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.
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.