Now even the rightsholders agree: Article 13 is dangerous and (and should be deleted)

Aanval van de Giganten op de godenwereld
Article 13 will hurt both users and creators
Licentie
—

Now that the Bulgarian Council presidency seems to have decided that it is time to wrap up the discussions on the DSM proposal and push for a political decision on a negotiation mandate, people are getting nervous. Late last week a whole assortment of organisations representing rights holders from the AV industry (organised in the creativity works! coalition) have sent a letter to Member State ministers and representatives, outlining their concerns with the latest Bulgarian compromise text. The document mainly focuses on Article 13, and what they have to say about that article is rather interesting (and surprisingly in line with positions that we have been arguing all along).

The overriding concern expressed by the rightsholders in their letter is that some of the more recent changes introduced in the council would turn Article 13 from a magic weapon against a few online platforms into a mechanism that threatens to further empower these very platforms in a way that does not benefit rights holders. In response to this, Creativity Works! (CW!) argues for further strengthening some of the most problematic aspects of Article 13.

We have long argued that Article 13 seems to be designed to benefit the big dominant online platforms, as it will entrench their market position. For smaller companies compliance with the filtering obligations will be difficult and costly while the main targets of Article 13 already have filtering systems in place (such as YouTube’s Content ID), and it is a welcome sign to see rights holders waking up to this reality.

For us it has been clear from the start that Article 13 will not achieve its stated goals. Instead the filtering obligations will cause tremendous harm to the freedom of expression and to open platforms that operate in fields that have nothing to do with the distribution of entertainment products. For this reason we think that the only responsible way to deal with Article 13 is to delete it and start over with a discussion about how we can best ensure that creators can be fairly compensated for their work. (Note that in this discussion most of the members of CW! are likely to be part of the problem rather than the solution as CW! has very little representation from actual creators.)

And while CW! is not joining us in our call to delete Article 13, their letter does illustrate our argument that adjusting general concepts of copyright law in order to address the concerns of specific groups of stakeholders is utterly irresponsible in the light of the big (and often unintended) consequences such an intervention can have.

Case in point: the re-definition of right of communication to the public. We and others critical of Article 13 have long argued that Article 13 would expand the right of communication to the public. Within the Commission’s proposal this aspect of Article 13 was hidden away in a recital, but over the successive drafts it has become more explicit. This seems to have led to the sudden realisation by rights holders that such a re-definition of this important right can also negatively affect them. In their letter they wrote on the last Bulgarian compromise proposal:

It would limit the scope of the right of communication to the public by incompletely applying Court of Justice of the European Union (CJEU) case law and setting into stone in Article 13 only certain criteria developed by the Court. This approach would roll-back the CJEU’s case law, which has repeatedly confirmed that a broad interpretation of the right of communication to the public (CTTP) is necessary to achieve the main objective of the Copyright Directive, which is to establish a high level of protection for authors and rights holders. CW! recalls that the exclusive right of communication to the public, including the making available right, as enshrined in EU law (and further clarified by the Court), has emerged as the bedrock for the financing, licencing and protection of content, as well as its ultimate delivery to consumers in the online environment. The Court has also emphasised, in its recent judgments, that in order to determine whether there has been a CTTP, several complementary criteria must be taken into account, which are not autonomous, but are interdependent. Any proposals that entail a selective application of the Court’s jurisprudence, or that imply a narrowing of the scope of the right of CTTP, would be contrary to the protection required by current EU and international law.

While we do not agree that the current draft would limit the scope of the CTTP right, this passage illustrates the dangers of carelessly fiddling around with core legal concepts that underpin the EU copyright framework. Continue reading →

Balancing Education and Copyright – reflections after Conference on Copyright in Higher Education and Research

—

MEP Axel Voss, rapporteur of the draft Directive on copyright in the Digital Single Market, did not expect this dossier to be so controversial. And issues relating to the educational sector are not an exception. With these words, the Eurodeputy began his speech at last week’s high-level conference, “A better copyright for quality higher education and research in Europe and beyond”. The conference was organized jointly in Brussels by the European Trade Union Committee for Education (ETUCE), the European Federation of Education Employers (EFEE) and COMMUNIA Association. The event was for us an opportunity to meet educational stakeholders – including members of our Copyright for Education network, as well as representatives of publishers and CMOs.


Teresa Nobre (Communia Association) and MEP Axel Voss (EPP, Germany), photo Education International, CC BY NC

Licenses are not a solution for education

If we were to choose one thing that worries us the most in the ongoing copyright reform as it relates to education, it would certainly be the possibility of license override. According to the current proposal for the  Directive on copyright in Digital Single Market, licences that are easily available in the market can take precedence over the mandatory educational exception.

While this might seem like a way to adjust copyright to national specificity, licensing mechanism will spell new barriers and costs for educational systems across Europe. For countries where educational licenses have not been available to date, this means that there is a possibility that schools will have to pay for materials that have been available to them for free. But educational licenses are not just a matter of money. Continue reading →

Vox Scientia is strong – but the current copyright reform will block the free circulation of knowledge

—

The ongoing and neverending EU copyright reform is often depicted in the way that the main issues are money, value distribution, and how to protect existing business models. These are of course valid concerns, but they shape the whole discussion in very narrowly-framed way. The most important question is how copyright reform will influence various groups of stakeholders, not only when it comes to businesses that want to make money, but also for the individuals and organisations that both need access to information and content, and who also wish to create and share.  And when it comes to science and knowledge sharing (not only in academia, but generally innovation) the answer is very clear – the proposal presented by the European Commission will block the free circulation of knowledge.

Vox Scientia is a group of organisations (including Communia) and individual educators, researchers, librarians, cultural heritage professionals, and students who are standing up and aiming to be the ‘Voice of Knowledge’ – ‘Vox scientia’ – in this debate. The parties engaged believe in a world where all people are able to freely exchange ideas, create, learn, and contribute to the global knowledge commons. The aim of the initiative is to mobilize people to stand up against dangerous and restrictive copyright  solutions backed by the European Commision. Continue reading →

Proposed Council compromise on TDM: still not good enough

De zanderij
The right to read must be the right to mine!
Licentie
—

We’ve already written about how the Bulgarian compromise proposal for both Article 13 and Article 11 are too broken to fix. Their proposal for Article 3 (Text and Data Mining) does little to alter the major problems standing in the way of a progressive exception for text and data mining.

We’ve continued to follow Article 3 since the European Commission published its proposal on copyright in the Digital Single Market. Even though the Commission’s exception for TDM would be mandatory, we criticised their plan as not going far enough, as it would limit the beneficiaries of the exception only to research organisations, and only for purposes of scientific research.

TDM in the Bulgarian presidency proposal

The Bulgarian proposal is nearly identical to the changes already offered by the earlier Estonian plan. It leaves intact the Commission’s obligatory TDM exception that would apply to research organisations (including cultural heritage institutions) for purposes of scientific research. The Bulgarian proposal similarly introduces an additional and optional exception in Article 3 for temporary reproductions and extractions. This additional exception would apply to beneficiaries other than research organisations, and for uses other than scientific research. But those acts would be limited in that they only would cover temporary reproductions and extractions, and only if the rightsholder does not prohibit it.

In our earlier blog post we wondered whether the existing (and mandatory) exception in the InfoSoc and Database Directives on temporary reproductions arguably already covers the temporary reproductions for text and data mining purposes. In any case, this additional and merely optional exception, for acts that might already be covered under existing law, which can easily be neutralised if rights holders don’t want it, is a weak compromise. It doesn’t address the main concerns we’ve had with Article 3 since the beginning. It also fails to bring much needed harmonization and will instead further the already existing fragmentation of users rights in EU. Continue reading →

Communia at the CC Summit18

Children of the Sea
Gathering of the Open Community
Licentie
—

The Creative Commons Global Summit is each year one of the key events for the open community. Next week, we are packing our bags and joining over 500 open activists and copyright reform advocates in Toronto. Communia has been founded largely by Creative Commons activists, who wanted to support the Public Domain and do something about European copyright reform. We share with CC the values of the (digital) commons and strive for a more equitable, accessible, and innovative world where creativity can blossom.

The Summit is for us first of all an opportunity to plan collaboration with other activists for the coming year. This year, the Summit program has a strong focus on copyright reform and we are excited to build together the Creative Commons Copyright Reform Platform. We will also contribute to discussion about global copyright reform, copyright and education, copyright and cultural heritage and users’ rights.

You can track all our sessions in the Summit’s Sched system. And follow us on Twitter for live updates from the event.

Continue reading →

MEP Voss doubles down on worst elements of Article 11

Karikatuur van Franse censoren
New right threatens free access to information
Licentie
—

We just got done criticising how Bulgaria’s weak consolidated presidency compromise handles Article 11 of the proposed Copyright in the Digital Single Market (DSM) directive. The Bulgarian plan doubles down on the Commission’s original bad idea and ignores most of the positive protections offered by some members of parliament.

But we shouldn’t have been surprised when MEP Axel Voss came out with an even worse plan for the press publishers right. This week MEP Voss released his proposal for a compromise on Article 11, and the changes he is proposing are even more radical and more broken than anything we’ve seen thus far.

Expanding the scope to cover facts

First, Voss proposes to expand the scope of beneficiaries of Article 11 from to cover not only press publishers, but also news agencies (who aggressively lobbied for being included in the scope of Article 11 late last year). But in doing so, he introduces the risk of inappropriately granting copyright – like protection to facts and compilations of basic information. This is a dangerous extension of the scope of exclusive rights that would endanger the right of access to information. It is especially appalling since even the founders of the “modern” European copyright system wisely choose to make sure that news of the day and facts cannot be exclusively claimed: The 1986 Berne convention explicitly states that copyright shall “not apply to news of the day or to miscellaneous facts having the character of mere items of press information”.

Mandatory remuneration

Perhaps the most extreme change is that press publishers and news agencies would be granted (or saddled with?) an “inalienable right to obtain an fair and proportionate remuneration for such uses.” What does this mean? It means that publishers would be required to demand payment from news aggregators and other users. Continue reading →

Article 11: still too broken to fix

Parisiens en train d'etudier la question turque
More rights won't save quality journalism
Licentie
—

This week the Bulgarian presidency released their consolidated presidency compromise proposal for a directive on copyright in the digital single market. Instead of taking a proactive approach to fix some of the worst elements of the Commission’s beleaguered proposal, their plan backtracks on many of the most controversial aspects, which only seems to throw the public further under the proverbial bus. As we discussed recently, Article 13 is beyond repair and should be deleted.

The same goes with Article 11— the provision that would create new rights in press publications and allow press publishers to control digital uses of even the smallest snippets of their content. We’ve advocated that the press publishers right should be removed from the proposed directive. Not only is the mechanism ill-suited to address the challenges in supporting quality journalism, it would have the effect of decreasing competition and innovation in the delivery of news, limit access to information, and create widespread negative repercussions for related stakeholders.

Instead, the Bulgarian “compromise” doubles down on the Commission’s original idea and ignoring most of the positive protections offered by some members of Parliament and the earlier Estonian draft. Continue reading →

This is not how you make copyright reform! Report from the Copyright Action Days

—

Last week more than a hundred of copyright reform activists got together in Brussels for the the European Copyright Action Days to make it clear to EU lawmakers that the copyright reform effort that is currently being discussed in the European Parliament and the European Council is not good enough. In a series of events organized by Copyright 4 Creativity, Create.Refresh, Communia and others, activists and other stakeholders discussed the shortcomings of the current reform proposal as well as ideas for a more future-proof overhaul of the outdated EU copyright system.

As part of the Copyright Action Days we organized a a roundtable on the future of education in the European Parliament, our first ever COMMUNIA Salon on the future of copyright in the Museum of Natural Sciences and two workshops for copyright reform activists.

Video documentation by Sebastiaan ter Burg.

Roundtable on the future of education

The roundtable on the the future of education hosted by Dutch MEP Marietje Schaake was a full room event at the European Parliament, with over 40 policymakers and stakeholders attending. We discussed the intersection of educational policy, technology, copyright reform and open licensing policies. Irish school teacher Leanne Lynch talked about the use of technology, social media platforms and digital copyrighted materials in the classroom. Mitja Jermol – UNESCO Chair on Open Technologies for Open Educational Resources and Open Education – talked about how new technologies can support educational goals. Andreia Inamorato dos Santos from EC’s Institute for Prospective Technology Studies  presented results of their latest report on open education policies in Europe. Finally, Damjan Harisch from the Slovenian Ministry of Education and Maja Bogataj Jančič, Director of the Slovenian Intellectual Property Institute, presented the position of Slovenian Ministry of Education on the copyright reform  During the event, Teresa Nobre also presented our latest research on licences for educational uses. We are happy that we had the opportunity to exchange views on the matter with representatives of publishers and CMOs.

The Future of Technology in Education roundtable
The Future of Technology in Education roundtable, photo by Sebastiaan ter Burg. More photos here.

COMMUNIA salon

The COMMUNIA salon in the Museum of Natural Sciences brought together more than 70 activists, academics and policy makers to discuss challenges on the intersection of creativity, value creation and copyright in the online environment. Under the title “Copyright for the future” the discussions attempted to draw up a perspective that looks beyond the current legislative proposal. Continue reading →

Article 13: still too broken to fix

Aanval van de Giganten op de godenwereld
Article 13 is an attack on open online platforms
Licentie
—

As we are heading into the final phases of the discussion on article 13 in both the European Parliament and the Council the issue that article 13 has the potential to do substantial damage to the European digital economy is getting more attention from lawmakers. So far the answer to this problem by the proponents of Article 13 is to exempt more and more types of online platforms from the filtering and or licensing requirements established by Article 13. By now the list of services to be excluded contains “Non-for profit online encyclopaedia“, “educational or scientific repositories, where the content is uploaded by the rightholder“, “providers of cloud services for individual use which do not provide access to the public“, “online market places whose main activity is online retail of physical goods” (European Parliament draft), “non-for-profit open source software developing platforms” and “internet access service providers” (Council compromise proposal).

Generally speaking it is a good indication that a policy is bad if there is a need to make a large number of exceptions to prevent it from doing lots of unintended harm. This principle is on full display in the discussion about article 13. As we (and many others) have argued before, article 13 is broken so badly that it cannot be fixed and should be deleted. The key problem with article 13 is that the music industry is employing its old weapon of choice (copyright law) in an attempt to reign in behaviour of a very small group of online platforms that is perceived as problematic by the music industry. By using copyright law as a trigger for the licensing and filtering obligations contained in article 13, the article inevitably effects every other online platform that deals with copyrighted contents (i.e pretty much all online platforms).

It is not surprising that other platforms that operate in completely different markets (like GitHub which has nothing to do with uploading music) have started to realise that article 13 is a threat to their businesses and are demanding to be excluded from the scope of article 13. While excluding such platforms seems like an obvious choice to prevent some of the worst side effects of the provisions contained in article 13, it will not fix the underlying problem: In an age where copyright touches almost every online business model, copyright law is not a suitable regulatory instrument to adjust the bargaining positions of specific industries anymore. In order to make sure that article 13 has no negative side effects it would need to come with a list of exceptions that excludes every single business model that it is not targeted at. Continue reading →

Our study “Educational Licences in Europe” is out now

Strafpleiters
Licence priority sounds even worse now
Licentie
—

The European Union is coming closer to approving a mandatory educational exception that may address some of the limitations copyright law places on everyday educational activities. However, the current proposal for a Directive on Copyright in the Digital Single Market would allow licences that are easily available in the market to take precedence over the educational exception.

Our new report “Educational Licences in Europe“, covering the analysis of 10 agreements in Finland, France, and the United Kingdom, shows that educational licences contain terms and conditions disadvantageous to schools:Continue reading →