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
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.
Last week a number of Europeana organisations representing libraries and other cultural heritage organizations released a joint response to the Commission’s copyright proposals. The paper, issued by LIBER, EBLIDA, IFLA, Public Libraries 2020 and Europeana, deals with those elements of the EU copyright framework that are directly relevant to cultural heritage institutions.
This includes four issues addressed in the Commission’s Proposal for a Directive on Copyright in the Digital Single Market (the exceptions for Text and Data Mining, Education, and Preservation copies, and the measures aimed at improving access to out-of-commerce works), and a number of issues that the Commission’s proposal fails to address, such as on-site access to collections and online document supply.
Exceptions are too narrow
The paper underlines that from the perspective of cultural heritage institutions, EU copyright reform needs to focus on updating and harmonizing copyright exceptions:
We believe that overall welfare is best served by a robust and mandatory set of copyright exceptions which facilitate access to knowledge.
Given this general approach it is not surprising the cultural heritage institutions share many of the same concerns we raised in our analysis of the Commission’s proposal. Continue reading
Today we are publishing the second in a series of position papers dealing with the various parts of the European Commission’s proposal for a Directive on Copyright in the Digital Single Market (see our first paper on the education exception here). Today’s paper deals with the Commission’s proposal to introduce a mandatory exception that would allow research organisations to conduct Text and Data mining for scientific research purposes (you can download a pdf version of the paper here). From our perspective this exception is much too narrowly defined and has the potential to stifle the potential of Text and Data mining as a key enabler of social and scientific progress in Europe. For this reason our paper argues for expanding the proposed exception to allow Text and Data Mining by anyone for any purpose.
Position paper: Copyright Reform to Facilitate Research and Innovation
Text and data mining (TDM) is “any automated analytical technique aiming to analyse text and data in digital form in order to generate information such as patterns, trends and correlations.” There is huge potential for text and data mining—in terms of scientific advancement and discovery, civic engagement, and economic activity and innovation within the Digital Single Market.
The European Commission recognizes that researchers encounter legal uncertainty about whether—and how—they may engage in text and data mining, and are concerned that publishers’ contractual agreements may exclude TDM activities. In addition, the Commission observes that the optional nature of existing exceptions could negatively impact the functioning of the internal market.
To rectify this situation the Commission proposes changes to existing rules “to ensure that researchers can carry out text and data mining of content they have lawful access to in full legal certainty, including across borders.” Continue reading
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
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
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
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.
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
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