Join us for the European Copyright Action Days 19-21 march in Brussels

Banquet at the Crossbowmen’s Guild in Celebration of the Treaty of Münster
Join us in Brussels to #fixcopyright

This spring the ongoing effort to modernize the outdated copyright rules enters into the decisive fase. It is widely expected that both the European Parliament and the EU Member states will their position on the proposed Copyright in the Digital Single Market Directive. 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.

Against this backdrop we are organising European Copyright Action Days on 19-21 march in Brussels. During these days we want to highlight the broad opposition of civil society, libraries, the users industry and many others concerning the restrictive aspects of the copyright reform proposal. During these days activists will convene in Brussels to discuss with lawmakers and advocate for a more future proof reform and to raise attention for the dangers of the proposed measures. Continue reading

Is the Bulgarian Article 13 Compromise a French affair?

Kaart van de Balkan
Bulgaria should oppose censorship filters!

The Bulgarian EU Presidency is under immense pressure to move the copyright reform forward. Yet it seems like the country is too timid to defend its own interests. A new campaign kicked off in Sofia to try and change that.

Somewhere far out in the uncharted backwaters of the unfashionable end of the EU lies a small unregarded country—Bulgaria. In 2018 this Member State will not only be known for resonant voices and rampant corruption, but also for its prominent role in the EU copyright reform. While it holds the rotating Presidency of the Council of the EU it is up to the Bulgarian government to propose new compromises and bring the discussion forward in order to reach a common position between Member States.

But the Council is not Bulgaria’s only copyright stronghold at the moment. The reform falls in the competences of the country’s Commissioner Mariya Gabriel, and 10% of the votes in the lead European Parliament committee (Legal Affairs) are to be cast by MEPs from parties currently making up its governing coalition.

The Bulgarian Compromise, a French Affair?

At the end of 2017 the Council negotiations hit somewhat of a stalemate and the Estonian Presidency was forced to give up, unnerved after trying for months to square the circle between the content industry’s bold demands and fundamental rights for users and the public.

Apparently the Bulgarian Presidency decided to kick 2018 off with a fresh approach. They circulated questions on the most controversial articles of the reform among Member States and then seemed to be proposing a new compromise.

Weirdly enough, this proposal seems to be very close to the positions of France, Spain, and Portugal than a honest attempt at balancing between the different challenges Europe faces. Continue reading

MEP Voss sells out freedom of expression, doubles down on protecting Big Content

Cadmus doodt de draak
The fight for keeping the internet open is on!

After more than a year of discussions MEP Axel Voss has finally come forward with his ideas about one of the most controversial aspects of the EU copyright reform proposal. On Wednesday he shared his compromise proposals for Article 13 of the proposed copyright in the DSM directive, that deals with filtering measures aimed at online platforms. The “compromises” drafted by MEP Voss make it clear that with regards to article 13 he has chosen to do the bidding of the music industry at the expense of users, open platforms and pretty much the rest of the internet.

Let’s focus on two main aspects of the approach that Voss is backing (for a more comprehensive analysis of his compromise see Julia Reda’s excellent write-up here). What would the new rules mean for users sharing materials via platforms, and what would the new rules mean for online platforms?

Online platforms: License or cease to exist!

In the version supported by MEP Voss, article 13 establishes two different obligations for online platforms that allow user uploads. In a first step, all platforms are required to obtain licenses from rightsholders. Those platforms that hold “significant amounts” of content also need to take “appropriate and proportionate measures to ensure the functioning of these agreements”. In the case that platforms do not have licensing agreements with rightsholders they need to take “appropriate and proportionate measures to prevent the availability on their services of works or other subject-matter”.

These rules would effectively end the current situation in which online platforms are not directly responsible for content that their users upload. The new rules would mean that all online platforms “that store and provide access to the public to copyright protected works or other subject-matter uploaded by their users” (which means pretty much all platforms) will be directly responsible for the content uploaded by their users and must obtain licenses from (unspecified) rightsholders. If they don’t (which is a strange condition given that all platforms must do so) they must implement filtering rules that prevent all copyrighted works from becoming available on their services. In other words, platforms must obtain licenses from rightsholders or they must cease to exist (as it is somewhat hard to make a business case for a platform on which nothing is available). Continue reading

New study: ever more complex copyright is holding back creators

Creative Jail
Copyright must not become a creative jail

One of the biggest shortcomings of the discussion on copyright is that most of it seems stuck in a fairly outdated creators vs users dichotomy. Copyright laws around the world are generally structured in such a way that they grant exclusive rights to creators and try to balance these with a limited set of rights for users (in the form of exceptions or limitations to copyright). Based on this design it is widely assumed that more (or stronger) exclusive rights benefit creators and that more (or broader) exceptions to copyright benefit users.

This conception is problematic on a number of levels. For one it is clear that creators benefit from user rights that ensure that users have a basic level of access to culture through educational systems and via public institutions such as museums and libraries. On the other hand users benefit from the exclusive rights granted to creators as they incentivise the very production of culture and knowledge that they want to access.

A more fundamental challenge to this general understanding of copyright is posed by the fact that the roles of users and creators are not mutually exclusive,  but overlapping. Many creators are also users of copyrighted materials and the other way around. The technological development of the past two decades has contributed to this blurring of the boundaries between creators and users. Digital technologies greatly facilitate both the creative re-use of existing works and the distribution of the resulting new works. This development has resulted in the emergence of the (somewhat nonsensical) category of “user generated content” and concepts like the “prosumer“.

These concepts deal with users becoming creators, and there are relatively straightforward answers to the challenges posed, such as the need to introduce an exception for user generated content in the EU copyright framework that we have been advocating for. But there is another more interesting side of the coin: creators becoming users. While it is true that creators have always appropriated the works of those authors who came before them, these dynamics have been turbocharged by the digital revolution. Creators have entire libraries of content at their fingertips, and the tools to manipulate, incorporate and build on existing works are becoming increasingly sophisticated. These are exciting times to be a creator, but this new reality also brings creators into contact with the limitations to their creative freedom imposed by copyright law. Continue reading

Is the new education exception in Germany geared towards the 21st century?

Anatomische les van professor Paaw
New law already scheduled for review
This is a guest post by Bernd Fiedler, policy manager at Wikimedia Deutschland. Bernd previously worked as a teacher and is aiming at improving the framework for free education. WMDE is a Communia member organisation.

In the “Urheberrechts-Wissensgesellschafts-Gesetz” (engl. roughly: Copyright Knowledge-Society Act), the German legislator tries to improve the legal framework for educators and scientists in Germany, as part of a general clean-up of the exceptions section of the Copyright Code. In general, 15% of a protected work can be used for educational and scientific purposes without permission until 2023.

The law, introduced last minute at the end of the legislative period in 2017, was long overdue. It was heavily lobbied, it is limited to five years, and it is already scheduled for review. Still, as Federal Minister of Justice Heiko Maas put it, because it is bundled into a single document, it somewhat clarifies regulation for educators, coming into effect on March 1, 2018.

In Germany, legislation on education and research is fragmented due to the federal constitution. So far, with the exception of the Copyright Code, which is federal law, the state-level executive and legislative bodies have full responsibility for education in their Länder (states). This includes the details on how copyright exceptions and limitations for education are handled in practice, which is regulated very granularly in treaties between the states’ culture ministers on one side and rightsholder representatives on the other. In practice, there were 16 different ways of handling copyright in education and some federal-level treaties that had to be considered.

From March onwards, educational institutions can use up to 15% of any single work (e.g. Book, Film etc.) in order to supply their courses and staff, and use that amount even for third-party presentations, as long as this serves to present the teaching outcome or similar at the institution itself. Single images, “a few” scientific articles from the same academic journal issue, out-of-distribution works and “works of smaller proportions” can be used in their entirety.

Before, the federal law only contained vague legal terms such as “shorter extracts”, “works of smaller proportions”, the meaning of which had to be negotiated into the abovementioned treaties at state level, leading in practice to different extent limitations in each state.

Shortcomings of the new exception

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Licenses: we are past copyright

The finish in the great match race [...] at Sheepshead Bay, N.Y., June 25th, 1890 between Salvator and Tenny / L.M.
Copyright exceptions should win this race

We have been arguing for quite sometime now that handing out the power to define the scope of users rights to right holders – in the form of license agreements that they can (almost unilateral) draft and frame as they wish – is bad. Really bad: licenses fragment the legal framework that mandatory exceptions try to harmonize; licenses contain abusive terms or impose obligations on users that are not foreseen in the laws; and licenses have a huge impact on national budgets.

Unfortunately, this message has not come through to all, or not everyone understands what we are saying, or worse right holders have done a nice job in convincing lawmakers that’s the right way to go.

Allowing licenses to override exceptions is the only treat that publishers want

The current copyright reform carried the promise of being a landmark in the history of the EU copyright law. Lawmakers would finally show they understand that copyright is not superior to any of the other fundamental rights that every constitutional law across Europe grants to their citizens, and would make things right. Sadly, however, the prospects of that being the case for education are now very low.

MEPs passed the last year negotiating the scope of the educational exception. On the one hand, those who side with schools, teachers and students, proposed amendments to eliminate some of the constraints that the educational exception contains. On the other hand, those who side with publishers have been pushing for more restrictions, in order to narrow down the scope of the proposed exception even further.

Not enough MEPs understood that the most problematic aspect of art. 4 is not the scope of the mandatory exception (n.º 1) but the fact that Member States may choose not to apply such mandatory exception if licenses covering those uses are easily available in the market (n.º 2).

It is our understanding that publishers could not care less about the scope of the educational exception, provided that they can rule out the application of said exception with their own license agreements. This is copyright “taking the back seat”, as Professor Niva Elkin-Koren would put it.Continue reading

Open Letter challenges Portuguese Government’s position on art. 13

Today, a group of Portuguese organizations, including an important innovation acceleration hub, software companies, free culture and users rights advocates, and the Portuguese association of librarians, archivists and documentalists, sent an open letter to the Portuguese Government asking to the Government to reconsider its position in relation to art. 13 (the proposal to require online platforms to filter all uploads by their users).

As we have noted before, Portugal is, along with France and Spain, one of the countries that supports the Commission’s plan to force online platforms to install upload filters that would prevent any uses of copyright protected not explicitly approved by rightsholders. Portugal has also been pushing forward amendments proposed by the French Government that would significantly change the way online platforms operate. Under the rules proposed by the French, operating open platforms would only be possible with permission from rights holders.

Portugal can still make it right!

The signatories of the letter acknowledge the negative impact that such proposals would have on the fundamental rights of the Portuguese citizens and on the booming Portuguese ecosystem of startups and entrepreneurs, which is as important to the Portuguese economy as the tourism industry. They, thus, ask to the Portuguese Government to depart from its initial position, which privileges the interests of a small class of commercial copyright holders, and to embrace the future of digital innovation instead.

This open letter is yet another reminder that copyright policy cannot be based on the interests of commercial rightsholders alone and a reminder that it is important to challenge the positions of national governments on this important issue (see this helpful overview by MEP Julia Reda for other governments that need to be reminded that we need copyright rules that embrace the future instead of the past).

New policy paper on the 2017 review of PSI Directive

chance to improve reuse in Europe

Today COMMUNIA published a policy paper on the 2017 review of the Directive on Public Sector Information (PSI Directive). The Directive first came into effect in 2003, and was amended in 2013 to clarify that 1) PSI should be presumed to be “reusable by default,” 2) museums, archives, and libraries were subject to the Directive provision, 3) acquisition fees were limited to marginal costs of reproduction, and 4) documents were to be made available for reuse using open standards and machine readable formats.

The Commission’s 2017 review could lead to further changes to improve reuse of public sector information. We made several recommendations to strengthen access and reuse of PSI.

First, we recommend that scientific research results resulting from public funding should be made available under a permissive reuse rights regime as PSI. The Commission should ensure that policy efforts to improve access to publicly funded scientific research are complementary—and not in conflict with—each other.

Second, we suggest that a revised Directive should ensure that all documents that are not currently covered by third party intellectual property rights fall within the scope of PSI national legislations.

Third, we recommend the Commission codify their earlier guidelines on recommended standard licences for PSI, and also ensure accurate licensing metadata across PSI and open data portals that reflects these licensing options.

Finally, we suggest that a revised Directive should ensure that CHIs and public sector bodies that are alike in their aims and funding structure must only be permitted to charge fees for costs directly incurred in providing access. We emphasise the importance of suitable state funding for CHI which will also enable them to make as many resources reusable as possible.

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Stop the #censorshipmachine now!

Today the Copyright working group of the Council is meeting for the first time under the new Bulgarian presidency. The agenda consist of discussions about articles 11 (press publishers right) and article 13 (upload filters for online platforms) and it appears that the Bulgarian Presidency is planning to push ahead on both of them in line with the one sided approach taken by the Estonian presidency. In the light of this meeting Pirate Party MEP Julia Reda has released a video featuring a number of MEPs from across the political spectrum speaking out against mandatory filtering of user uploaded content:

In the video the MEPs make it clear that filtering technology that would be mandated under article 13 will be used to limit the free expression of internet users in the EU. They also point out that it is highly problematic to require large corporations to install filtering technology that they will then operate outside of any public oversight and without any ability for meaningful recurse by normal users.

The examples provided by the MEPs in the video are a welcome reminder that it will not be enough to prevent upload filters from becoming mandatory by deleting article 13 from the proposed DSM directive, but that we we need to regulate the application of existing filtering technology and that that we finally need to positively define what rights users have when it comes to re-using existing works to express themselves online.

The time to stop the #censorshipmachine is now and you can contribute to this by sharing Julia Reda’s video or the excellent explainer video produced by the Create.Refresh campaign.

Transparency and the ongoing hypocrisy around “evidence-based” policymaking

Man bekijkt een schilderij door een vergrootglas, Honoré Daumier, 1847
Policymakers should back up rhetoric with action

We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation.

Today’s topic for Copyright Week is Transparency: Whether in the form of laws, international agreements, or website terms and standards, copyright policy should be made through a participatory, democratic, and transparent process.

For Copyright Week last year we wrote about transparency and representation in relation to the public consultations leading up to the European Commission’s release of their new Directive on copyright in the Digital Single Market. Our headline read, “Evidence-based copyright policy making should be a no-brainer.” We argued, “It’s obvious to us that any legislative proposal should be developed from reliable, impartial economic and policy research whose foundation is based on evidence and facts.” But when we saw what was in the Commission’s draft, it became clear that a large swath of substantive feedback from the public was mostly ignored.

Here we are a year later, and the situation in the EU has not improved one bit.

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