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.
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)
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.
Last week the Committee on the Internal Market and Consumer Protection (IMCO) released a draft opinion on the proposed Directive on Copyright in the Digital Single Market. Rapporteur Stihler’s recommendations lay in stark contrast to both the Commission’s original flawed TDM exception, and CULT’s draft opinion published just a few weeks ago. While CULT Rapporteur Joulaud’s suggestions would further restrict the ability to engage in TDM in the European Union, Stihler’s opinion champions a broad exception for text and data mining that would apply to anyone for any purpose. Rapporteur Stihler proposes 3 amendments regarding TDM that are coherent with our position:
- removal of the restriction that only research organisations may benefit from the exception,
- removal of the limitation that the exception may only be used for the purposes of scientific research,
- introduction of the rule that technical protections that prevent activities under the text and data mining exception will also be inapplicable under the law.
From IMCO’s draft opinion:
“the Rapporteur believes that limiting the proposed EU exception to a narrow definition of research organisations is counterproductive, and therefore introduces a simple rule, which does not discriminate between users or purposes and ensures a strictly limited and transparent usage of technological protection measures where appropriate.”
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
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