Europeans deserve a better copyright reform

Caïn venant de tuer son frère Abel, by Henry Vidal
This is not how you #fixcopyright

The copyright reform proposal presented today by the European Commission fails to meet the needs of citizens, educators, and researchers across Europe. Instead of strengthening the information economy, the proposal preserves a status quo defined in the analog age. In the process, it hinders education, research and cultural expression.

European Commission lacks vision for copyright in the digital age

Today’s proposal buries the hope for a more modern, technologically neutral and flexible copyright framework that the Commission had hinted at in its initial plans for the Digital Single Market. The proposal largely ignores crucial changes to copyright that would have benefitted consumers, users, educators, startups, and cultural heritage institutions. It also abandons the idea of a digital single market that allows all Europeans the same rights to access knowledge and culture. Finally, it completely ignores the importance of protecting and expanding the public domain.

Copyright needs to evolve with technology. Instead of charting a course that can take Europe into the information economy of the future, the Commission has been busy rearranging the deck chairs on the Titanic.

Instead, the Commission’s proposal focuses on a wholly different goal: to minimize the impact of the fundamental changes brought about by digital technologies and the internet on legacy business models. Publishers get an ancillary copyright that already has proven itself worthless in practice. Access to most audio-visual content will continue to be hampered by geo-blocking (which the Commission had earlier committed to end), and online platforms might be forced to collaborate with rights holders on censoring content that is shared by users on these platforms. The whole package lacks forward-looking, innovation-friendly measures that embrace digitization as an opportunity for users, creators, businesses, and public institutions in Europe.

In doing this, the Commission abdicates its power to make the European future a better one. It is the future where the stakes are significantly higher than today’s market balance. Soon, the business models that the Commission is trying to protect will no longer be relevant. At stake is a future in which innovation-friendly Europe could have provided the best education for its citizens, drawn the best talent and investment options, and fostered the best research and job opportunities. Continue reading

Commission proposes to limit text and data mining in Europe

De zanderij
The right to read should be the right to mine!

We’re continuing to analyse the prospective changes to EU copyright law described in both the leaked impact assessment, and last weeks week’s leaked draft for a Directive on copyright in the Digital Single Market. In this post we take a closer look at the proposed exception for text and data mining (TDM).

The Commission recognises the incredible potential in text and data mining, writing that “TDM can be a powerful scientific research tool to analyse big corpuses of text and data such as scientific publications or research datasets.” They also note that researchers would be more likely to engage in text and data mining if it was not for the legal uncertainty that exists as a result of the current copyright rules. The draft Directive notes that there are parts of existing EU law that already would cover some TDM activities, except for the fact that these exceptions are “optional and not fully adapted to the current use of technologies in scientific research.” So, in order to overcome this legal uncertainty, the draft directive provides for a mandatory exception for uses of text and data mining technologies in the field of scientific research.

In article 3 the Directive stipulates that member states shall provide for an exception to the exclusive rights granted in the Copyright and Database Directives and the new publishers’ right proposed further down in the Copyright in the Digital Single Market Directive…

…for reproductions and extractions made by research organizations in order to carry out text and data mining of works or other subject-matter to which they have lawful access for the purposes of scientific research. […] Any contractual provision contrary to the exception […] shall be unenforeceable.

There are a few good things about this approach. First of all, making the Directive mandatory will ensure that the exception applies uniformly across all EU members states. We also welcome the explicit clarification that the rights granted under the exception cannot be contracted away.

In addition, it is a step in the right direction that the proposed exception would now apply to all acts undertaken “for the purpose of scientific research” whereas earlier statements by the Commission hinted at an exception that would only apply to non-commercial research purposes. Unfortunately these steps do not fix the fatal flaw of the approach proposed by the Commission:Continue reading

Copyright Reform: European Commission does the rightsholders’ bidding

Odysseus en de sirenen
EU copyright reform hijacked by rightsholders

If this week’s leak of a draft version of the European Commission’s Impact Assessment on the modernisation of EU copyright rules shows one thing, it is that the various rightsholder groups have managed to completely hijack the EU copyright reform process.

A first analysis of the ten measures included in the Impact Assessment reveals that, under pressure from organized rightsholders, the EU copyright reform process, which started in 2014 with ambitious goals to modernize the EU copyright rules in order to create a digital single market in the European Union, has turned into a fragmented effort to protect the self-proclaimed interests of rightsholders.

Instead of harmonizing copyright rules across the EU and ensuring that they will not limit the potential of digital technologies, the Commission has chosen to focus on supporting legacy business models of rightsholders in an attempt to defend the status quo. This is a remarkably short-sighted approach to modernizing one of the core policy frameworks governing the information economy, especially if one takes into account that these rules will likely remain in effect for the decades to come.

While we are working on a more detailed analysis of the policy options proposed in the Impact Assessment, here are our initial thoughts on the ten measures covered. It is important to keep in mind that we base ourselves on a leaked version and that the final version can still change, although substantial changes are very unlikely. The document at hand is largely in line with other internal Commission documents, such as last December’s communication on the same topic  (see our analysis here), and it is consistent with public statements of key policy makers.

The Impact Assessment is divided into three sections. The first one contains four measures aimed at ‘ensuring wider access to content’. The second one contains three measures aimed at ‘adapting exceptions to digital and cross-border environment’, and the final section contains three measures aimed at ‘achieving a well functioning market place for copyright’.

Exceptions as restrictions

One of the most interesting parts of the Impact Assessment is the section on ‘adapting exceptions to digital and cross-border environment’. The  Impact Assessment proposes the creation of three new mandatory exceptions: one covering text and data mining for “public interest research organisations”, one covering preservation copies made by cultural heritage institutions, and one covering digital and online uses in the context of illustration and teaching. Creating mandatory exceptions to enshrine user rights is clearly a step in the right direction (although a tiny one in the case of the preservation exception, which already exists in most member states). At closer inspection, however,  two of the three proposed exceptions come with significant flaws. Continue reading

Lisbon Council calls for broad text and data mining exception to promote EU research competitiveness

De zanderij
The right to read is the right to mine!

Yesterday the Brussels-based think tank The Lisbon Council published the policy brief Text and Data Mining for Research and Innovation: What Europe Must Do Next. It was written by Sergey Filippov and Paul Hofheinz. In the paper, the authors analyse contemporary text and data mining (TDM) trends, and make recommendations for how European policymakers can better support researchers who wish to engage in TDM activities.

The authors observe that Europe has fallen behind other parts of the world in text and data mining research. One reason is due to the ambiguous legal environment in Europe surrounding TDM. In 2014 the United Kingdom adopted a copyright exception for text and data mining for non-commercial research purposes, but the situation for other countries in Europe is not so clear. The European Commission has not been entirely helpful, either. In their December 2015 communication on copyright, they said they would consider introducing an exception for TDM. However, instead of recommending a robust exception that would truly support text and data mining as an increasingly important research tool, the Commission suggested a narrow interpretation that would restrict TDM only to those affiliated with a “public interest research institution”, and only for “scientific research purposes.”

In their paper, Filippov and Hofheinz say that European researchers may be “hesitant to perform valuable analysis that may or may not be legal”, and that scholars “are forced, on occasion, to outsource their text-and-data-mining needs to researchers elsewhere in the world.” They recognize that some of the language in play—such as “public interest research organisation”, “scientific research purposes”, and “non-commercial”—could be open to misinterpretation, or even be at odds with the underlying public policy intention.

Continue reading

The European Parliament and its path toward a Digital Single Market Act

Children of the Sea
The call to abolish the failed database directive is the highlight of the report

Creating a fully integrated Digital Single Market (DSM) is one of the main priorities of the current European Commission. The commission has outlined its general approach in last years Digital Single Market communication (which we have discussed here). In reaction to this communication the European Parliament has been working on a report. The report on achieving a Digital Single Market Act, as adopted jointly by ITRE and IMCO Committees on 14 December 2015, was discussed and voted on by the European Parliament on 19 January 2016.

Since the report deals with issues related to the copyright framework of the European Union (among many others, such as boosting access for consumers and businesses to digital goods and services, developing the conditions for digital networks and services to prosper, and making the best of the growth potential of digital economy) Communia perceives the discussion on the document as another step in the ongoing processes related to to tearing down digital boundaries that still exist in Europe. The document is also a “demand” for the what should be contained in the Commission’s 2016 legislative proposals.Continue reading

What the diary of Anne Frank can tell us about Text and Data mining

Allegorie op de scheikunde
Copyright must not be used to thwart scientific research

Recently, everybody has been busy discussing the question of whether the Diary of Anne Frank will enter (or by now, has entered) the public domain on January 1st this year (Answer: It’s complicated). Surprisingly, the discussions surrounding the copyright in Anne Frank’s writings may shed some light on another contentious copyright policy issue: text and data mining. These insights are the result of a recent ruling by the District Court of Amsterdam in dealing with a dispute between the Anne Frank Stichting (owner of the physical diaries and operator of the Anne Frank House in Amsterdam) and the Anne Frank Fonds (owner of the copyrights in Anne Frank’s writings).

The Anne Frank Stichting announced plans to publish an edition of Anne Frank’s texts online after the presumed expiration of the copyright on January 1, 2016. In response, the Anne Frank Fonds sued the Stichting over what it considered unauthorised reproductions of Anne Frank’s writings. The reproductions had been made by the Stichting as part of its preparatory research for the on-line publication after the new year. Initially, this seemed to be an attempt by the Fonds to thwart or delay the Stichting’s plans for an online edition.

However, during the course of the legal arguments it became clear that under Dutch law (which governs uses made by the Stichting), Anne Frank’s original writings would not enter the public domain in 2016. This is due to a transitional rule in the Dutch copyright act which states that works posthumously published before 1995 will retain copyright—in this case large parts of the original writings will only expire in 2037.

While this means that the Stichting had to shelve its plan to publish an online edition, the Fonds continued to press charges related to the reproductions (XML-TEI files) made by the Stichting in order to carry out its textual and historical research. The Stichting was sued alongside their research partner the Dutch Royal Academy of Science (KNAW). Both upheld the position that it did not require permission for making reproductions solely intended to enable its internal scholarship, claiming that copyright law should not be used to thwart scientific research. Continue reading

Copyright Communication: the good, the bad, and the ugly

Het brood der toekomst wordt strijdend gewonnen
Copyright reform: the long struggle ahead

Yesterday, the European Commission published its long awaited communication on copyright. The document titled ‘Towards a modern, more European copyright framework‘ doesn’t contain many surprises, which is both due to the fact that it is largely identical to a draft version that was leaked at the beginning of November, and that the Commission has opted for a safe approach that proposes minimal changes to the existing rules.

The latter is confirmed by the proposal for a regulation ‘on ensuring cross-border portability of online content services in the internal market’ that the Commission published alongside the Communication. In the light of the Commission’s earlier statements that it wants to create a digital single market, this proposal is a huge disappointment as it only covers access to online services while users are temporarily outside of their ‘Member State of residence’. It does nothing to address the much more important problem that copyright-protected works that are available to citizens of some member states are not available to users in other member states (the Commission promises to ‘address’ this issue in 2016 through a number of market led interventions, suggesting a slow policy crawl against geoblocking).

Ensuring that paid-for subscriptions to content continue to work once the paying customer travels to another member state is nice, but it does not constitute a digital single market. The proposed regulation on cross border portability will put an end to one of the most annoying consequences of a territorial copyright system. But by making the system a little more bearable the this move can also be expected to further entrench the reality of territorial markets.

The fact that enabling portability requires a legislative intervention on the EU level speaks as much to the growing imbalance of the copyright system as it does to the inability of the Commission to deliver on the digital single market promise. Even though this intervention seems to be rather minimal, rights holders are already complaining about the Commission’s proposal, and it will be interesting to see if the Commission will be able to make good on its intention to shepherd the proposal through Parliament and Council within the next year so that it can come into effect in 2017.

The rest the communication does not contain any concrete proposals, but rather identifies areas where the Commission is planning legislative (and non legislative) interventions in 2016. As mentioned above, the text of the communication is largely identical to the leaked draft which we have analysed here. In the following section we will highlight the good, the bad, and the ugly parts of what the Commission is planning for 2016.Continue reading

Leaked copyright communication: A more modern copyright framework for Europe?

Routekaart voor de beroemde plekken in Ise
Copyright quo vadis?

On Tuesday the European Commission published a roadmap outlining the next steps in their effort to modernize the EU copyright rules. The (not entirely unexpected) main takeaway from this roadmap is that the Commission is retreating from its earlier announcement that it will present a comprehensive legislative proposal for copyright modernisation before the end of 2015.

Instead the Commission will address the modernisation of copyright via a series of interventions, starting in December with a “Communication on copyright which will provide a comprehensive overview of the main issues to be tackled in order to ensure the proper functioning of the copyright marketplace, in particular in the online environment and in a cross-border context”. This communication will come together with two legislative proposals, the first dealing with the (long overdue) implementation of the Marrakesh Treaty, and the other about cross-border portability of content. In a second phase – currently promised for ‘Spring 2016’ – the Commission plans to present additional measures, including legislative updates of the InfoSoc directive.

Announcements about announcements

The rest of the roadmap consists of a fairly unstructured discussion of what might possibly be contained in the December consultation, and an extensive description of the available evidence, including the highly contentious outcomes of the 2013/2014 copyright consultation and the ongoing consultations on online platforms and the SatCab directive. But at its core the roadmap does not constitute much more than an announcement of the December communication, which in turn will be an announcement of legislative and non-legislative interventions.

Fortunately, we can ignore the rather vague roadmap and jump straight to a leaked draft of the actual communication published on Thursday by the IPkat. The draft appears to be fairly recent and is scheduled to be adopted by the Commission on the 9th of December. It is also a much more coherent document that provides us with a relatively clear overview of the Commission’s ideas of how ‘a modern, more European copyright framework’ should look. Continue reading

European Parliament adopts Reda report, fails to demand real copyright reform

Yesterday the European Parliament approved MEP Julia Reda’s evaluation report of the copyright directive. With the report the European Parliament gives a clear signal that the European Copyright rules need to be modernised. This puts the ball in the court of the Commission, which needs to come up with concrete legislative proposals for a copyright reform – which it promised to deliver before the end of the year. Both Commissioners Oettinger and Ansip have reacted positively to the Report, while its author, Pirate Party MEP has expressed the hope that the Commission’s proposal will be more ambitious than the EPs report, which has been watered down considerably through a large number of amendments.

So while the report is a clear signal that MEPs want to see a modernisation of the EU copyright rules that date back to 2001, it is much less clear what shape these modernised rules should take. Most of the report is based on compromises that MEP Reda has brokered between all major political groups represented in the EP. As a result, the report does not outline a clear plan for reforming copyright. Still, it is possible to distill from it a number of things that MEPs clearly both want and don’t want to see in the reform proposal. It is also clear that pressure from civil society – related to such issues as Freedom of of Panorama, hyperlinking or ancillary copyright, helped avert worst amendments to the report.

MEPs do not want to see further limitations of user rights.

Attempts have  been made to include language that would limit the rights of end users. Fortunately all of these attempts failed. The majority of MEPs is clearly unwilling to further limit the ability of citizens and other users to interact with copyright protected material. Continue reading

More licenses are not the solution for text and data mining

De zanderij
The right to read is the right to mine!

Earlier this week  LIBER released a response to the STM Association’s statement about text and data mining (TDM). The STM Association asserts that legal certainty already exists for TDM via publishers’ licences, and that creating copyright exceptions for text and data mining activities would undermine the investment incentives for ensuring that high-quality content is available.

LIBER refutes these claims. First, they say that publishers’ licenses for TDM are not straightforward or easy to understand.

Licences could never be described as simple; they are highly complex and can take months or even years to complete. They often refer to laws in other jurisdictions and in most European countries they can override the flexibilities that exceptions are intended to provide. Many licences explicitly forbid TDM associated activities such as crawling of content and the depositing of data in institutional repositories.

Second, LIBER argues that forcing researchers to acquire licenses to engage in text and data mining will divert investment money away from conducting important research, and instead will be used to pay for license compliance and monitoring activities. Instead, they say that a copyright exception for TDM would actually promote investment, not inhibit it. Continue reading