Two weeks ahead of the second trilogue meeting on the 26th of November where the most controversial parts of the Copyright Directive will be discussed for the first time, various stakeholders are starting to position themselves for the final stages of the reform process. Yesterday Politico.eu leaked the compromise suggestions prepared by the Austrian Presidency for articles 11 and 13. Unsurprisingly the suggested texts maintain the general approach that was cemented by both the Council and the Parliament over the summer (see analysis by MEP Julia Reda here). By now it is clear that regardless of how much we argue that Article 13 should be deleted and that Article 11 should be limited to a presumption of representations neither of these two things will happen.
Limiting the damage by clearly identifying the services targeted
Under these conditions it seems that the most promising approach to minimize the harm that will be caused by these articles will be to limit what type of services they apply to.
Article 11 should be modified in such a way that it only applies to search engines and news aggregators. These are the type of services that press publishers are claiming to cause them harm (which we continue to doubt). This would prevent a lot of legal uncertainty (and thus damage) for everyone else on the internet.
The same approach makes sense for article 13. The music industry and other rightsholders have consistently argued that they are harmed by large online platforms that allow users to share audiovisual (AV) works. Given that the stated objective of the proponents of article 13 is to create a better bargaining position for rightsholders vis a vis YouTube, Facebook, Google and other commercial platforms, it seems reasonable to limit the types of services that would need to comply with article 13 to for-profit audio visual platforms that compete with licensed services only. Such a measure would prevent a lot of legal uncertainty for platforms that do not deal with AV works or do not operate on a for profit basis. Continue reading
yes. i am lonesome tonight. is a video by visual artist and performer Daniel Pinheiro, and probably one of the most intelligent uses of a pre-existing work that you’ll see on social media platforms today and tomorrow. Not the day after, because copyright infringement will soon prompt its removal.
You see, some of the works created by Daniel Pinheiro rely heavily on copyrighted works that do not belong to him. yes. i am lonesome tonight. consists of a black screen in which the words “yes”, “i did”, “i’m sorry” and “i didn’t” appear as answers to the questions posed by Elvis Presley in the song “Are you lonesome tonight”, composed by Lou Handman and Roy Turk. Elvis sings “Are you lonesome tonight” and Daniel whispers “Yes”. And so it goes:
Do you miss me tonight?
Are you sorry we drifted apart?
Could fair use save the lonely artist?
Daniel’s intervention is minimal, from a quantitative point of view, and he uses the source work in its entirety, which would weigh against fair use, in countries where fair use exists. Yet I doubt any art curator or critic would not render it as a new and unexpected use of Elvis’ musical performance. In other words, the transformative character of yes. i am lonesome tonight. could perhaps be enough to consider this Visual-Art work a fair use, even when all the remaining statutory factors (such as the amount of the source work used) would traditionally weigh against fair use. Continue reading
Last weekend Communia participated in Mozfest 2018 with a drop-in session on how copyright affects our daily lives. While the ongoing EU copyright reform will shape internet and users rights for ages, not all users are well aware of how this will impact them and the way they use the internet. In our session ‘Human faces of copyright’ we organised a number of activities to show how the reform will influence our daily internet experiences, the way we share and create.
The Mozfest community includes people with a wide variety of expertise and backgrounds. Not everybody might know the ins and outs of copyright (reform), but once you start talking about the challenges of copyright, most can quickly relate it to their own work and experiences.
OERs can be used to create inclusive and equitable education and to promote lifelong learning opportunities for all. They are an important factor that contributes to the improvement of educational opportunities.
However, while the special impact of OER is clear, often little attention is given to the issue of educational exceptions to copyright. Copyright frameworks that lack such exceptions can be an unjust obstacle for educators, and in particular can adversely affect the creation and use of OERs. Last year, we participated in the 2nd World OER Congress with the aim to raise awareness about educational exceptions as complementary means for achieving the goals of Open Education. The Ljubljana OER Action Plan, adopted by UNESCO members at the Congress, then, did not include actions related to copyright reform. Fortunately, this has now changed.
Last month the notorious EU Parliament vote approved almost all of the worst measures of the proposed Directive on Copyright in the Digital Single Market. It was a significant setback for user rights and the open internet.
Recap: 12th September Parliament vote
The Parliament voted in favor of Article 13, which even though it didn’t mention explicitly, would in practice force online platforms that host significant amounts of user-uploaded works to filter all content for copyrighted materials and prevent the upload of those works unless a license has been agreed to. If the platforms don’t do this, they would be liable for copyright infringements of their users.
They approved Article 11, which gifts a new copyright-like right to press publishers that will allow them to control how we access and reference press publications and news stories online.
The text and data mining provisions of Article 3 pretty much stayed the same, with a mandatory exception carrying through, but only one which can be taken advantage of by not-for-profit research organisations, and only for the more limited scope of scientific research. An optional addendum would permit an expanded exception applicable to all, but only if the rights holders in the underlying works don’t object to it, or arrange their own licensing requirements.
Article 4, the copyright exception for education applying to digital and cross-border teaching activities, while being seriously improved over the Commission version, still contains the fatal flaw that the mandatory exception can be essentially ignored if there is appropriately licensed content made available in a Member State.
To add insult to injury, the Parliament doubled down on their rights giveaway bonanza, approving Article 12a to grant sports events organizers to prohibit anyone from sharing photos or other recordings of sports events. And the new Article 13b requires that image search engines to obtain licenses for even the smallest preview images that they display as search results.
There is no way around it, the outcome of today’s vote on the copyright directive in the European Parliament is a big loss for user rights and the open internet. MEPs have decidedly sided with the demands of the creative industries to hand them more control over how we access, use and share copyrighted works. Out of the seven issues that we listed this morning the European parliament voted against our position every single time.
Taken together the positions adopted by the European Parliament this morning amount to an unprecedented expansion of exclusive rights for a small subset of already-powerful interests:
- Under Article 13, rightsholders would get more control over how copyrighted works can be shared on online platforms. It will allow them to force platforms to filter content in ways that will negatively impact users rights.
- Under Article 11 press publishers would get an entirely new right that will allow them to control how we access and reference press publications.
- Under Article 3 rightsholders would get the right to prevent anyone other than scientific researchers from using computers to analyse information contained in legally accessible works.
- Under the new Article 12a sports events organizers would become copyright holders allowing them to prohibit anyone from sharing photos or other recordings of sports events.
- Finally under the new Article 13b image search engines would need to obtain licenses for even the smallest preview images that they display as search results.
There are a few bright spots in the report adopted today, such as a slightly beefed up education exception and better mechanisms allowing cultural heritage institutions to provide access to out of commerce works, but on balance the result of today’s vote amounts to a substantial weakening of the public domain.
In having chosen the side of the content industries MEPs have turned their back on the potential of an open internet to foster research, access to information and as a driver of creative innovation. This happens against the backdrop of serious concerns from academics that these new rights may be ineffective and will possibly even entrench the dominant position of the dominant platforms providers.
With today’s adoption of the report the path is now clear for negotiations (the so called “trilogue“) between the Parliament, the Council and the Commission (see this helpful infographic for an overview of the remaining steps). Given that on most issues the positions of the three legislators are very similar, this process, which will be guided by the Austrian Presidency, will likely be relatively swift. Once these trilogue negotiations are complete, the resulting text will once more be voted in the European Parliament. This vote, which will likely take place at the end of this year or early next year will be the last possibility to prevent (or at least limit) the effects of today’s land grab by rightsholders. Stay tuned for a more extensive analysis over the next few days.
On the 5th of July a large majority of the Members of the European Parliament voted against fast-tracking the report of its JURI committee on the Copyright in the Digital Single Market directive so that the full parliament could discuss the contents of the report and make adjustments to a number of controversial provisions. This discussion has taken place over the last few weeks and tomorrow marks the day when the European Parliament will take a final vote on the report.
On the table are a wide range of proposals to amend three of the most controversial parts of the proposed directive, as well as a number of attempts to address omissions in the original text. However, large parts of the JURI text, such as the exceptions dealing with education and access to cultural heritage, have been left untouched and will not be affected by Wednesday’s vote.
EU lawmakers will have the opportunity to agree on some meaningful improvements to the proposed directive which would then become part of the Parliament’s position for the upcoming trilogue negotiation with the European Commission and the Member States. An improved Parliament position is badly needed since the European Commission’s original plan was terribly disappointing and the Member States have adopted a position that is even worse on crucial parts of the proposed directive. In order to keep open the possibility that the EU copyright reform process will result in real improvements to the EU copyright system MEPs must:
- Text and data mining: Vote for an expanded version of the exception for text and data mining in Article which would allow anyone to text and data mine all legally accessible copyright protected works. This would be guaranteed by a set of amendments tabled by a cross-party coalition called the Digital Agenda Intergroup. Not adopting their amendments would mean that Europe will shut itself off from an essential tool for scientific, societal and economic progress.
- Press publishers right: Delete the unnecessary and counterproductive Article 11, but it deletion is not possible, limit the most negative effects by refusing to grant press publishers additional rights that will hinder access to knowledge. This would be guaranteed by sets of amendments proposed by the Digital Agenda Intergroup and by the Greens/EFA political group.
- Upload filters: Ensure that the attempts to address an imaginary value gap driven by the music industry by introducing mandatory upload filters do not damage the open nature of the internet and limit the freedom of (creative) expression online. In addition to deletion of Article 13 the damage can be limited by adopting amendments proposed by the Internal Market and Consumer Protection committee or the Digital Agenda Intergroup.
- User-generated content: Vote in favor of the new amendments that clarify that users may engage with copyrighted works through remixes, memes and other types of user-generated content (UGC). Support for UGC was indicated in the JURI recitals, but left out of the article text. There are amendments tabled the Digital Agenda Intergroup as well as several MEPs including Cavada, Reda, Adinolfi, and Maštálka.
- Freedom of Panorama: Vote in favor of new amendments that clarify the ability for European citizens to take and share photography of artworks and architecture in public spaces (freedom of panorama). There are amendments tabled by the Digital Agenda Intergroup as well as MEPs Maštálka and Reda.
- New rights for sports broadcasters and image search: Vote against the additional copyright protection gifted to sports events organisers snuck into the JURI report, as well as the addition of a licensing requirement for image search engines. Neither of these amendments were debated nor received a sufficient level of scrutiny by the Parliament, and both would result in substantial expansions of the scope of copyright that must be opposed given the absence of any evidence supporting such measures.
- Support for the public domain: Vote in favor of the amendments that add a positive definition of the public domain to the EU copyright framework. Copyright law takes a big part of its legitimacy from the fact that it creates temporary exclusive rights and this fundamental principle deserves explicit recognition in EU law. MEPs should support the amendments introduced by MEP Adinolfi.
It is less than a week before the decisive vote on the proposed Directive on Copyright in the Digital Single Market. In the past few weeks MEPs have tried and failed to come up with a compromise position on the most controversial element of the directive proposal, the upload filters for online platforms that would be mandated by Article 13. As a result all options ranging from filtering obligations that would cripple online platforms to the deletion of Article 13 remain on the table for next week’s vote. On a positive note, MEP Dutch Marietje Schaake has tabled positive amendments to Article 3, which bring the exception as close as possible to the rule “The right to read is the right to mine”.
Article 13 still spells trouble for the knowledge community
We have been univocal in our conviction that the upload filters mandated by Article 13 are a terrible idea. They would limit the freedom of expression of European internet users and creators, and allow big corporate rightsholders to establish themselves as gatekeepers of cultural expression that would limit cultural diversity online. We are also concerned about the effects that filtering requirements would have on access to knowledge.
While most of the proposals on the table explicitly exclude open knowledge repositories like Wikipedia, open access publication platforms and free software repositories from the filtering obligations (and liability risks) established by Article 13, this does not guarantee that the directive will not limit access to knowledge and culture and damage the public domain. Exempting these service may protect them from the immediate negative effects of the Directive, but but it would not take away legal uncertainties for innovators in this space.. This is why projects from Wikipedia to GitHub to the library and research community still oppose Article 13. Just yesterday, Jimmy Wales, a Wikipedia co-founder, warned again that “foolish, detrimental changes to the law could make it really hard for future platforms to allow people the freedom to create.”
Jimmy Wales in discussion with MEP Axel Voss in the European Parliament (Sebastiaan ter Burg – CC-BY)
The decentralised nature of the internet has enabled a radical opening up of knowledge and a culture of sharing that has reduced the ability of commercial intermediaries to control and limit access to knowledge for profit making purposes. Continue reading
In less than two weeks the European Parliament will vote on its position on the Copyright in the Digital Single Market directive. After the resounding rejection of the JURI mandate on the 5th of July, MEPs are searching for compromises that will allow the European Parliament to enter into negotiations with the Commission and the Member States. A key to finding such a compromise will be a new version of Article 13 that reflects the broad opposition against the upload filters that led to the rejection of the JURI mandate in July.
Last week Friday MEP Axel Voss presented his proposal for a new compromise on Article 13. According to Voss the new version answers to the demands voiced by critics of the original JURI text (and he expects those critics to support his new version):
Unfortunately this does not mean that MEP Voss has suddenly taken the concerns raised by users, academics, civil liberties organisations and many others into account. Instead he is proposing a version of Article 13 that would be even worse than everything that has been on the table so far. His newest “compromise” proposal consist of a simplified version of Article 13 that would make all online platforms that allow users to upload content (other than a select few) directly liable for copyright infringements committed by their users:
(1) Without prejudice to Article 3(1) and (2) of Directive 2001/29/EC, online content sharing service providers perform an act of communication to the public.
As a result open platforms would need to obtain licenses for all copyrighted content that could possibly be uploaded to such platforms, which is of course impossible since not all copyrighted content is available for licensing. In practice this will mean that platforms need to filter out all copyrighted works for which they do not have a license. Contrary to what Axel Voss wants us to believe, his latest proposal would mandate upload filtering on an unprecedented scale (see the flowchart below for a more detailed analysis). Continue reading
Summer is definitely over (sorry to write this) and copyright reform is back as one of the most controversial issues on the Brussels policy agenda. It is expected that the European Parliament will finally decide on the position on the proposed Copyright in the Digital Single Market Directive on September, 12th. Right now things are not looking good: instead of a much needed update of the copyright framework that would enable new uses driven by technological innovation, policy makers in Brussels are working towards new restrictions that would would limit how information and creativity can be shared and enjoyed online.
To prevent this from happening we are joining forces with a broad coalition of civil society organisations, academics, libraries and free software developers to advocate for sensible rules that do not limit access to knowledge, freedom of expression and innovation online. A balanced approach on copyright reform matters for all of us and we urge you to join us in convincing MEPs that they must not damage the internet in order to serve the interests of rightsholders. Please join us in contacting your MEPs via saveyourinternet.eu
Copyright action week
Throughout the coming days (up until the 11th which is the day before the vote in the European Parliament) various groups and initiatives will highlight the negative impact of the Article 13 (upload filters) on a broad range of issues. These include human and digital rights, academic research , access to knowledge, online creation and fan art and many other everyday online activities. Continue reading