JURI vote results: a better educational exception with a poisoned pill within

European Parliament (before the internet)
Not over yet
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This morning the Legal Affairs Committee of the European Parliament (JURI) voted on the report on the proposed Copyright in the Digital Single Market Directive. You can read a broader analysis here.

JURI gave educators across the EU a gift in the shape of an improved educational exception – with a poison pill inside. The Compromise Amendment (CAM6) proposed by Rapporteur Voss was accepted. We are happy that the Commission’s flawed proposal for an exception that secures digital uses for education purposes has been fixed. Educators are given clarity about uses in digital environments, and the scope of the exception has been increased beyond educational establishments and their premises. There is also improved text that makes a contractual override of the exception impossible.

Yet, the poison pill remains: the Commission’s proposal in article 4(2) to give priority to licenses over the exception was adopted. We managed to secure improvement in the phrasing of this license priority: the licenses have to be tailored to the needs and specificities of the educational establishments. Nevertheless, a Member State can decide to switch off the exception, provided that a licensing scheme is in place in a given country. This means that over the coming years we could benefit from a new exception only to see it disappear – which would leave educators depending on remunerated licensing schemes.

Problems with license priority go beyond education

Licensing priority spells problems, not just for educators. It creates a precedent for overrides to any public interest copyright law exceptions. As such, it is a great victory for rightsholders. This reminds us of the “Licenses of Europe” process, in which the Commission and rightsholders tried to convince everyone that licensing is a much better tool for securing user rights than exceptions to copyright. While they failed to do so then, they seem to have won some ground in the copyright directive.

This dangerous precedent for users’ rights is even more alarming when we consider that it goes against the CJEU ruling on the issue of license priority. The Court of Justice of the European Union knew that giving priority to license offers was indefensible, as it would negate much of the substance and effectiveness of the exception or limitation and it would deny the user the right to benefit from the exception. Thus, the Court decided that the 3-step test did not require them to allow rightsholders to unilaterally force users to stop relying on the copyright exception when those rightsholders offered to conclude a licensing agreement with them. This decision represented a major win for users’ rights, and more so because in the US users may not be able to rely on fair use when reasonable licensing options are available.

If we round up today’s vote for education we are happy about the improvements to the exception but mourn what could have been and fear the consequences of this license priority. The fight is not over yet. There will possibly – likely – be a plenary vote in the Parliament where this article, as well as the other disappointing results on articles 11 & 13, could still be challenged.

Legal affairs committee sells out user rights to big content & big tech.

Nederlaag van de titanen
but you can still #SaveYourInternet
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This morning the Legal Affairs Committee of the European Parliament voted on the report on the proposed Copyright in the Digital Single Market Directive. The results are in and they are not pretty: MEPs have adopted Article 13 which would force open platforms operating in Europe to install upload filters. They have also adopted the controversial press publishers right (art 11). As a bonus to rightsholders they granted more rights to “sports event organisers” and adopted a provision intended to force image search engines to pay for displaying thumbnail images as search results.

This amounts to a massive power grab by rightsholders who will enjoy much more control over how we use the Internet to communicate, share, create and inform ourselves. It is a big step away from an open Internet towards an Internet that functions as a distribution channel for mainstream culture. It is a huge loss for European cultural diversity and the freedom of expression online.

It is telling that the MEPs in the JURI committee have also voted against all attempts to give users more rights. Proposals to introduce EU wide freedom of panorama and to allow the use of protected works in User Generated Content (both of which would merely bring the law in line with reality) were voted down. The MEPs adopted a number of small improvements for users in the fields of education, access to cultural heritage and with regards to Text and Data Mining but most of these come with significant drawbacks.

The education exception contains a license priority clause that allows rightsholders to turn off the exception and dictate problematic licensing terms to educational users, which creates a dangerous precedent for users’ rights and goes against the CJEU ruling on this issue.

The Text and Data Mining (TDM) exception is limited to scientific research purposes only. The expansion that would open TDM to everyone for every purpose (which is crucial for the development of technologies such as artificial intelligence in the EU) is merely optional and will not apply across the EU as a whole.

Taken as a whole, the JURI committee’s vote shows an utter disregard for the rights of citizens in the digital environment. It is telling that both the Civil Liberties and the Consumer Protection committees have prepared much more balanced reports that have been completely ignored by the members of the Legal Affairs committee. This shows that lawmakers still treat the rights and interests of citizens and creators as spare change in the the fight between big content and big tech.

Today’s round has clearly gone to ‘big content’ in spite of warnings from pretty much anyone other than the rightsholders that this outcome will have disastrous consequences for the open Internet and our freedom of speech. Citizens’ freedom of expression should not be the function of an arrangement between rightsholders and big technology companies. It is a right that needs to be defended on its own merits and it is extremely worrisome that EU lawmakers have effectively decided to give big technology companies – that are based outside of the EU –  the responsibility to decide how European citizens can express themselves online.

We will continue to fight for the rights of users and creators and to oppose the censorship machine. The first step will be to convince enough MEPs that a decision to sell out citizens rights to big content and big tech merits a decision by the whole European Parliament:

Three things the European Parliament needs to do to #fixcopyright tomorrow

European Parliament (before the internet)
Tell your MEP to #fixcopyright tomorrow!
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Tomorrow the Legal Affairs Committee of the European Parliament (JURI) will finally vote on the proposed Copyright in the Digital Single Market proposal. The outcome of this vote will define the European Parliament’s negotiation position as it enters into trilogue negotiations with the European Commission and the Council. Although more than a thousand amendments have been proposed, it is clear that the European Parliament has missed the chance to demand a forward-looking copyright reform that empowers Internet users and creators and improves access to culture and information. With an eye on tomorrow’s votes, these are the three immediate challenges facing the members of the JURI committee:

#1 Save the Internet

For more than a year the discussion in the European Parliament has narrowed down on a number of key topics. The most attention has gone to those areas where the ideas introduced by the European Commission have the potential to break the open Internet and limit freedom of expression and  the free access to information. Both Articles 11 and 13 remain hotly contested to this very moment and it is important that you continue to tell the members of the JURI committee to Save Your Internet by voting against the compromise proposals proposed by the Rapporteur, Axel Voss, and support the alternative compromises proposed by the Greens instead.

#2 Expand user rights and protect the Public Domain

On a more positive note there are a number of issues where the JURI MEPs can make a positive difference. The Commission’s proposal was a huge disappointment with regard to empowering users and protecting the Public Domain but members of Parliament have worked hard to put proposals up for vote that would correct this. During tomorrow’s vote the JURI MEPs should vote for the alternative compromise amendments that would introduce Europe-wide exceptions allowing anyone to take and share pictures of artworks located in public spaces (the so-called freedom of panorama) and to use pre-existing works in remixes and other forms of “user generated content”. In addition, MEPs should vote in favor of the compromise amendments on articles 7-9 that strengthen the proposed mechanism that would allow cultural heritage institutions to make available out of commerce works. Lastly, the compromise amendment for article 5 contains a recognition of the principle that reproductions of works in the public domain should stay in the public domain.

#3 Fix the most glaring flaws of the Commission proposal

Finally, there are a number of issues where the Commission’s proposal was severely lacking and where the members of Parliament have not managed to put forward a response that fixes these flaws. As proposed by the European Commission, both the exception for Text and data Mining and the exception for education were at best mixed blessings and, unfortunately, the Parliament has not found a way to fully address their shortcomings.

The proposed optional exception for TDM that applies only if the right has not been reserved does not constitute more than a band-aid on the gaping wound caused by the Commission’s proposal for an limited exception (that, in effect, prevents anyone except researchers from engaging in Text and data mining). Given that there are no more substantial solutions on the table we still encourage MEPs to vote for the compromise amendments on articles 3 and 3a even though we are convinced that the only sensible option is to embrace “the right to read is the right to mine” approach.  

With regards to the education exception, the European Parliament’s compromise amendment fails to address the core shortcoming of the Commission’s proposal. The new mandatory exception should improve the very fragmented existing legal framework in the EU and benefit learners and educators alike. Unfortunately, the compromise amendment up for vote tomorrow leaves intact the licensing override that will negate the purpose of having a mandatory exception. We will continue to advocate for limiting reliance on licensing as a method to ensure access to educational materials. It has become clear from our own research that licenses do not benefit education. They impose burdensome obligations on schools and include unfair or even abusive terms.

Time is running out to tell the MEPs in JURI to act. Tell them to back stronger exceptions, safeguard the public domain and save the Internet via saveyourinternet.eu or changecopyright.org now!

Last call to push for a good EU copyright reform for education: Joint conclusions from the ETUCE-EFEE-COMMUNIA conference

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Support for clear and broad exception for education and research purposes
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Today, we publish joint conclusions on better copyright for higher education and research together with ETUCE / EI federations of teachers’ trade unions and EFEE, the European Federation of Education Employers. This document is an outcome of a joint high level conference organized on 11 April 2018 in Brussels, with the financial support of the European Union Intellectual Property Office (EUIPO).

The event marked for us an important opportunity to discuss with education stakeholders how copyright law can support sound educational policy. This been the goal of our Copyright for Education project, initiated two years ago. Through this project, we have been aiming to strengthen the visibility and position of education stakeholders in the copyright reform debate – in particular with extent to issues like the education exception, which affects them directly.

This joint initiative was coordinated by ETUCE, also with the goal of lobbying for good copyright for education during the vote in the European Parliament on 20 June. The shared conclusions from the conference partners stress that:

#1: A genuine copyright exception

Educators would benefit from an EU-wide education exception – without mandatory remuneration – , which educators can rely upon across the European Union and which defines a minimum standard. Removing copyright restrictions on the digital use of illustrative materials including textbooks for educational purposes would increase legal certainty as this would reduce the financial burdens on education systems and institutions.Continue reading →

Dear MEP, will you support an open, broad and flexible education exception?

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The day after tomorrow, the Legal Affairs (JURI) Committee will vote on Copyright in the Digital Single Market. The educational exception in the Directive is not what we hoped when the copyright reform process started. The European Commission promised – in its DSM strategy – to reduce differences between copyright regimes and to provide greater legal certainty for cross-border use through harmonised exceptions. The Copyright in the DSM Directive furthermore proposed to reduce transaction costs for users, including educators and educational establishments.

These promises have not been met.

This is why we sent a policy letter to all members of the JURI committee asking for a better copyright for education last week. We hope this will help the committee members remember what is at stake for education in this vote, and that they will support an open, broad and flexible exception.

In the current proposal article 4 allows for an override of the exception with licensing mechanisms – which benefits rightsholders, but increases transaction costs, cause legal uncertainty for cross-border use and leads to a lack of harmonisation of copyright law, as it applies to education.

Our recent study of 10 licensing schemes for educational uses (in France, the United Kingdom and Finland) shows that (i) licences restrict the scope of protection of the educational exceptions, (ii) licenses grant questionable rights to rightsholders, and (iii) licenses impose burdensome obligations on schools.

We are concerned that the language of the new education exception will not be able to achieve its purpose of allowing cross-border use because it only allows the use within an educational establishment and within an electronic environment. This will not facilitate cross-border use across institutions and across countries.

In the letter we ask MEPs  to support a mandatory exception that is the same in each country, for non-commercial education that facilitates cross-border sharing, without any licenses or compulsory remuneration attached by force of law.

106 million European students, 8.3 million European teachers, and 40% of adults who continue to learn should be supported in their learning efforts. Educational policy should not be endangered to secure narrow interests of educational publishers and other rightsholders.
The full text of the letter is available here.

More and more experts warn of the dangers of Article 13 upload filters

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With the discussion of the EU copyright reform proposal in full swing (see #SaveYourInternet on twitter) ahead of next week’s vote in the European Parliament, more and more experts are coming out to warn about the negative consequences of Article 13 of the proposed directive.

On Tuesday this week a group of more than 70 people who have played important roles in building the internet and developing it into the vibrant cultural space that it is today came out with an open letter addressed to the members of the European Parliament. Tim Berners-Lee, Vincent Cerf, Mitchell Baker, Jimmy Wales and 70 others write:

As creators ourselves, we share the concern that there should be a fair distribution of revenues from the online use of copyright works, that benefits creators, publishers, and platforms alike.

But Article 13 is not the right way to achieve this. By requiring Internet platforms to perform automatic filtering all of the content that their users upload, Article 13 takes an unprecedented step towards the transformation of the Internet from an open platform for sharing and innovation, into a tool for the automated surveillance and control of its users. […] The damage that this may do to the free and open Internet as we know it is hard to predict, but in our opinions could be substantial.

This leads them to the same conclusion that we had arrived at in our analysis of Article 13. The most sensible way to deal with Article 13 is to delete it entirely:

We cannot support Article 13, which would mandate Internet platforms to embed an automated infrastructure for monitoring and censorship deep into their networks. For the sake of the Internet’s future, we urge you to vote for the deletion of this proposal.

On Wednesday David Kaye, the United Nations Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, followed up with a letter that raises similar concerns with Article 13. Specifically, Kaye is troubled that Article 13 “would establish a regime of active monitoring and prior censorship of user-generated content that is inconsistent with Article 19(3) of the International Covenant on Civil and Political Rights.” The opinion of the Special Rapporteur is an important voice from an organisation that does not have a direct stake in this discussion and should therefore be considered seriously by lawmakers. From the letter:

Article 13 of the proposed Directive appears likely to incentivize content-sharing providers to restrict at the point of upload user-generated content that is perfectly legitimate and lawful […] the restriction of user-generated content before its publication subjects users to restrictions on freedom of expression without prior judicial review of the legality, necessity and proportionality of such restrictions. Exacerbating these concerns is the reality that content filtering technologies are not equipped to perform context-sensitive interpretations of the valid scope of limitations and exceptions to copyright, such as fair comment or reporting, teaching, criticism, satire and parody.

As we have argued before it would be irresponsible of the Parliament to sell out the freedom of expression, education and access to culture and information to the business interests of the publishing and entertainment industries. By now it pretty clear than Article 13 is considered a real danger by pretty much anyone except the entertainment industry which concocted this legislative monstrosity. It’s high time for MEPs to recognize that they are being led into a direction that will do grave harm to freedom of expression, the digital economy in the EU, and the internet as a medium for vibrant cultural exchange.

To help, send your MEPs an email, tweet, or phone call before the June 20 JURI vote (as in RIGHT NOW!) and tell them to delete Article 13 once and for all.

Launched: copyrightforeducation.eu

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Today, COMMUNIA launches the copyrightforeducation.eu website, asking for support for a better copyright for education. Let’s raise our voices and spread the word now, so that we can influence our legislators in creating a better copyright law for education.

What you can find in our new website

We believe in policy decisions that are based on evidence. On copyrightforeducation.eu you can find all the studies that we have been conducting in the past years on the issues of copyright and education:

  • Our study that shows that copyright laws in Europe are too fragmented and, thus, lead to inequality among European students, create legal uncertainty for teachers, and limit cross-border collaboration.
  • Our study that shows that most of these laws are too narrow, preventing educational activities that take place everyday in schools all over Europe, such as the use of an entire image in an educational resource or the screening of a film in class.
  • Our study that shows that licenses restrict the scope of protection of the educational exceptions, grant questionable rights to rightholders and impose burdensome obligations on schools. Therefore, the EU proposal, which prevents copyrighted materials from being used under the education exception from the moment that such materials become easily available in the market under a licence, is a bad solution.
  • Documentation showing that educators support a good solution for copyright, in other words, a mandatory exception that cannot be overridden by contracts or licenses, that facilitates cross border use, and does not oblige Member States to provide for remuneration for each and every use of copyrighted materials for educational purposes.

We need to act NOW

A vote will soon take place on the shape of European copyright law. European legislators listen mainly to the voice of copyright rightsholders. We need to change that now.

We are asking for a law that grants educators and learners freedom to use copyrighted content. Educators should not be forced to rely on licenses, which spell new costs and burdens.

Those who teach, learn and create, exchange information for the benefit of European society. They deserve a copyright framework that enables them to provide modern, innovative education. Education fit for the Europe of the 21st century.

Copyright needs to be reshaped in order to facilitate modern education which spans the lives of learners, and takes place in a variety of formal and informal settings, online as well as offline.

European educators and learners need an education exception that is mandatory and cannot be overridden by contracts or licenses.

Educators should not need to be lawyers to understand what they can and cannot do. We believe in transparency. Educators would benefit from an education exception on which educators can rely across the European Union. This would create legal certainty for educators.

What you can do to help

Please visit the website copyrightforeducation.eu and if you support a better copyright for education, act now:

– Reach out to your MEP https://voxscientia.eu/call-to-action/
– Sign up for our newsletter on Education and Copyright
– Contact us at education@communia-association.org

Take action now and tell the European Parliament to #SaveYourInternet

European Parliament selling out user rightsLicentie
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On 20 June, (8 days from now) the Legal Affairs committee of European Parliament (JURI) will finally vote on the proposed Copyright in the Digital Single Market directive. After more than one and a half years of discussions a lot is at stake in this vote. That is why we are joining forces with other civil society organisations from across Europe for the #SaveYourInternet action day. The purpose of this day is simple: we need to tell Members of the European Parliament that they cannot afford to sell out freedom of expression, education and access to culture and information to the business interests of the publishing and entertainment industries.

If you care about the open Internet and a world in which the interests of rightsholders are not privileged above education, research and access to culture, you need to act now. Get in touch with the Members of Parliament (MEPs) who will vote in these issues and let them know what you think. At www.saveyourinternet.eu you find a range of tools that make it easy to tweet at, mail or call them (of these three options calling is the most effective method).

Tell your MEP that you do object to the introduction of automated censorship filters that would cripple open internet platforms, that you find it unacceptable that press publishers get granted rights that they can use to limit access to online information and that Europe needs to embrace innovative technologies (such as text and data mining) instead of limiting them. Instead MEPs should stand for the interests of the citizens that they represent by demanding robust exceptions to copyright that unlock the power of the Internet for education and access to the collections of cultural heritage institutions.

With the Commission’s proposal for the DSM directive lacking in all these aspects, and the Member States having embraced the Commission’s approach, the European Parliament is our only hope of preventing this disastrous proposal from becoming reality. We have a week left to convince MEPs that they must not sacrifice the interests of users and creators across Europe to the business interests of publishers and entertainment companies. So head over towww.saveyourinternet.eu today (or use the form below) to make your voice heard!

104 Members of Parliament agree: It’s time to dump the #LinkTax

Karikatuur van Franse censoren
No unnecessary rights for press publishers!
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In an incredible show of political support for a more reasonable copyright law, today 104 members of the European Parliament sent a letter to Rapporteur Voss asking him to delete the harmful press publishers right—Article 11. The signatories include MEPs from across the political spectrum. Signatories of the letter state that:

While we support efforts to ensure a level playing field between online platforms and businesses through the enforcement of competition and consumer rules, we believe that the introduction of a new European neighbouring right will have a nocent and injurious effect on citizens’ access to quality news and information.

Ever since the Commission released its original proposal for a Directive on Copyright in the Digital Single Market, we’ve been arguing that introducing a new ancillary right for press publishers is a terrible idea. 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.

As already shown by example in Germany and Spain, a press publishers right will be completely ineffective in promoting quality journalism or getting reporters and authors paid, and it will have massive negative repercussions on access to information for everyone online.

We are not alone. A variety of groups have long warned about the dangers of adopting the press publishers right, including 169 academics, 25 European research centres, 145 civil society organisations, 9 news agencies, and publishers themselves. Continue reading →

Can Voss salvage the text and data mining exception?

Shipwreck off a Rocky Coast
Rescuing TDM from the reform wreckage?
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Last week’s big news was dominated by the agreement from COREPER on a negotiating mandate for the proposed Directive on Copyright in the Digital Single Market. The verdict: Member States have agreed on a text that fails to address the biggest shortcomings of the Commission’s proposal, and in a number of ways actually makes it worse.

But recently Rapporteur MEP Axel Voss also published a his first proposal for a compromise amendment on Article 3, the exception for text and data mining (TDM).

Since the release of the original Commission proposal, we’ve criticised the TDM exception as not going far enough to achieve its intended objectives, because it would limit the beneficiaries of the exception only to research organisations, and only for purposes of scientific research. While there were interesting amendments floated by a few of the Parliamentary committees, it seems that few of the progressive changes have been seriously considered by JURI.

In parallel, the Council presidencies have not done anything that would significantly improve the situation, either, with their main contribution being the introduction of an optional provision, often referred to as “3a”. This additional arrangement would cover TDM activities that fall under temporary reproductions and extractions, and would apply to beneficiaries beyond research organisations, and for uses other than scientific research. But those acts would be limited in that they only apply for works for which rights holders are not explicitly prohibiting such uses.

Voss’ compromise amendment is a mashup of Article 3 of the Commission’s proposal and Article 3a of the Council text. In opposition to his approach in many other areas, the changes here seem to be a reasonable attempt at arriving at a compromise between those who agree with the Commission’s original narrow approach and those (like us) — who argue for a much broader exception that allows anyone to engage in text and data mining for any purpose. The devil of course is in the details of the proposed text.

Continue reading →