Anyone following copyright debate may have an impression it is all about “money, money, money” (Abba). In COMMUNIA we believe that such an approach shows deep misunderstanding about the function of copyright. Copyright is just one angle of approaching more broader challenge, namely providing a just framework for to access to knowledge, information and culture. A well balanced copyright system is one of the fundamental underpinnings of a knowledge-based society.
Possibly the strongest challenge to such as system is are the proposals for forcing online platforms to filter all content uploaded by their users, put down in article 13 of the proposed Directive on copyright in the Digital Single Market. We have underlined many times before that proposed regulation will have a chilling effect on sharing content, access to information and the the ability to operate open platforms online.
would violate the freedom of expression set out in the Charter of Fundamental Rights;
provokes such legal uncertainty that online services will have no other option than to monitor, filter and block EU citizens’ communications.; and,
includes obligations on internet companies that would be impossible to respect without the imposition of excessive restrictions on citizens’ fundamental rights.
If the European Union decides to approve the European Commission’s proposal, this would constitute an unprecedented step towards building an online censorship infrastructure. Similar filtering obligation have previously been rejected in the context of preventing terrorism and hate speech. Continue reading →
This week we learned about a research study requested by the Legal Affairs committee regarding the potential impact of Articles 11 and 14-16 of the Commission’s proposed Directive on Copyright in the Digital Single Market. The research was overseen and published by the Policy Department for Citizens’ Rights and Constitutional Affairs.
We are especially interested in the assessment of Article 11—the provision that would create new rights in press publications that would allow to press publishers to control digital uses of even the smallest snippets of their content. COMMUNIA has long 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.
The European Commission, which came up with this idea, has offered no data about how a new right would increase revenues to sustain a free and pluralist press.
On the other hand previous Academic research as well as statements from the media companies themselves confirm that Article 11 won’t accomplish its aims, and is a danger to access to news online. The independent analysis commissioned by JURI conforms this once again, which should finally put the nail in the coffin on the press publishers’ right. The report concludes:
There are real concerns surrounding the rather uncertain effects of the right, and many of the problems facing press publishers can be resolved by a much less controversial intervention. We therefore approve the proposal made in the draft JURI Opinion, namely that the press publishers’ right be abandoned and replaced with a presumption that press publishers are entitled to copyright/use rights in the contents of their publications. (p. 8)
The authors of the research take a look at instances where a press publishers’ right has already been implemented, such as Germany and Spain. They conduct interviews with stakeholders on the ground to analyse the implications and effects of the ancillary rights there.Continue reading →
The European Union is currently discussing a reform of its copyright system, including making mandatory certain copyright exceptions, in order to introduce a balance into the system. However, no one, except Julia Reda, is paying any attention to one of the biggest obstacles to the enforcement of copyright exceptions in the digital age: technological protection measures (TPM), including digital rights management (DRM). In this blogpost we will present the reasons why the European Parliament should not lose this opportunity to discuss a reform of the EU anti-circumvention rules.
No balance between anti-circumvention prohibitions and users rights
The InfoSoc Directive incorporates rules regarding the protection of TPM in articles 6 and 7, which do not adequately take into account users rights created by copyright exceptions and limitations. First, Member States are only obliged to guarantee that users can access and use a TPM-protected work in relation to a closed-list of “privileged exceptions”. Beneficiaries of the remaining exceptions are not able to exercise their rights when a work is protected by TPM. Second, only certain privileged users—those who already have legal access to the work—have the right to require the technical means to benefit from the selected exceptions. Finally, the rules that are aimed to protect users do not apply to on-demand online services.
According to the European Parliament’s 2015 impact assessment study, the EU anti-circumvention rules are intend to restrict the exercise of users rights under the exceptions:
The very narrow scope of application of this mechanism evidences a clear intent of the InfoSoc Directive to restrict considerably the enforcement of copyright exceptions in light of their increased economic impact in the new electronic environment (cf. Recital 44). (pg. I-84)
Science fiction usually mirrors contemporary challenges and anxieties better than the future it tries to predict. Nevertheless, that does not stop creators from imagining that future. Rightfully so, even if as nowadays the technology advances so fast that some concepts age before they have a chance to be applied.
Centrum Cyfrowe, a Polish COMMUNIA member, does not usually deal with science fiction, but the ongoing yearlong debate on the copyright reform has unexpectedly directed them towards speculative design in modeling the future. A Future not Made in the EU campaign presents future objects and services that may enhance cultural and educational experience, but their future is uncertain – their utility does depend on whether the copyright reform addresses future challenges properly.
Meanwhile, the law is usually drafted based on the past experiences rather than on recognising future challenges. The longer we are in this debate, the better we can see that looking backwards to regulate participation in increasingly digital culture may result in fatal consequences.
If the authors and contributors to the copyright reform look behind their shoulder while drafting it, we will end up stuck in the analogue era. Specifically, Europe will end up like this. The rest of the world will advance forward.
The Council of the European Union, currently led by the Estonian Presidency, has published an updated compromise proposal regarding Articles 2 to 9 of the Commission’s draft directive on copyright. The Estonian proposal will be discussed among the Member States next week at the meeting of the Copyright working party.
The minor tweaks to the exception for text and data mining offered in this recent draft—as well as the earlier changes suggested in the Maltese compromise proposal from 8 May —are inadequate to supporting research and innovation in the European digital single market.
Where the Commission’s original plan only permits “research organisations” to take advantage of the exception, the new Council’s compromise proposal would extend the beneficiaries to include “cultural heritage institutions.” At first glance this addition would seem welcome because it expands (albeit narrowly) to an additional beneficiary group. But this meager edit ignores the larger concern that citizens and private sector organisations still will be excluded from the benefits of the exception. As we’ve argued, this is clearly not aligned with the goals of the reform to promote activity in the digital single market.
In addition, the Council compromise proposals do not change the problematic limitation that TDM may only be carried out strictly for “purposes of scientific research.” We’ve criticized the Commission’s short-sighted approach in only permitting TDM to apply to scientific research. Such a restraint will surely decrease the potential impact of novel TDM uses, such as for journalism-related investigations, market research, or other types of activities not strictly considered “scientific research”. Continue reading →
This week Creative Commons published an analysis of some of the copyright-related provisions contained in the trade agreement currently being negotiated between the European Union and the Mercosur bloc. The EU and this South American sub-regional group of Argentina, Brazil, Paraguay, and Uruguay have been in talks about the free trade agreement (FTA) since 2000. The EU-Mercosur negotiations are situation during a time when several of the affected countries—including Argentina, Uruguay, Paraguay and of course the EU—are involved in a review of their own copyright legal frameworks.
Tabled copyright rules protect powerful stakeholders, ignore public interest
As expected, the copyright provisions of the intellectual property chapter are nothing to write home about. The CC analysis shows that the policy direction suggested by the negotiators would be detrimental to the public domain, creativity and sharing, and user rights in the digital age.
For example, the draft IP chapter recommends a copyright term extension for those countries that don’t already follow the life + 70 term. It upholds more than adequate measures for protection and enforcement of rights, but doesn’t include similar safeguards to protect users rights and balanced approach to copyright. The draft IPR chapter includes prohibitions to circumventing technological protection measures to gain access to a work, as well as a provision that would prohibit the creation and sharing of technologies that could enable a user to circumvent technological protection measures. You can read the full policy analysis here. Continue reading →
This week MEP Julia Reda shared an unpublished report of a study examining the effects of copyright infringement on sales of creative works. Apparently the contract for the economic research was tendered by the Commission in 2014 for €360,000. It was completed in 2015 but never published, and Reda received a copy of the report after several freedom of information requests.
In 2014, on average 51 per cent of the adults and 72 per cent of the minors in the EU have illegally downloaded or streamed any form of creative content […] In general, the results do not show robust statistical evidence of displacement of sales by online copyright infringements.” (p. 7)
This result is not shocking. Many online content providers are finding that users will pay for content when that content can be conveniently accessed at a fair price—hence the significant growth of popular online film and television streaming services like Netflix. But this is not the narrative that the Commission wishes to promulgate, as it doesn’t fit their worldview. Or more accurately, it doesn’t align with the interests of the incumbent content industries, who, as we’ve argued, want nothing more than “to minimize the impact of the fundamental changes brought about by digital technologies and the internet on legacy business models.”
One assumes that the findings from this study would have been a useful input into the Commission’s proposal for the Directive on Copyright in the Digital Single Market. And surely it would have been interesting to creative sector economists, the startup and technology communities, consumer rights organisations, civil society advocates, and the public at large. Instead, the Commission pushed ahead and introduced restrictive copyright reforms that blindly tries to stop something, which according to research commissioned by the Commission itself is not a problem.
This incident makes a few things crystal clear: 1) the Commission has confirmed it has no interest in pursuing evidence-based policymaking, and 2) freedom of information laws are an increasingly vital tool by which to shed light on the shady workings of some public institutions.
A lot of the concerns raised by the six member states centered on the relationship between the Commission’s proposed Article 13, user rights granted under exceptions and limitations, and the rights enshrined in the EU fundamental rights charter. In contrast the intervention by the German government seems to be motivated by a different set of concerns. In the introductory paragraph of the document they write (emphasis ours):
We welcome the fact that the Commission has addressed the matter of how to fairly distribute the value created by internet platforms. We must ensure that creative individuals receive fair pay, also if their work is available on the internet. Concurrently, platforms must not be jeopardised in their function as a societal medium of communication. Moreover, it must be ensured that the competitiveness of European enterprises and the freedom of scientific communication are not impaired.
Based on this is seems clear that the German government is primarily worried about the potential negative impacts that Article 13 would have outside the narrow confines of the music industry. The German government is concerned that the Commission, driven by the the music industry’s desire to cripple the liability exceptions of the E-Commerce directive, will undermine the economic basis for much of Europe’s digital economy.
A threat to the digital economy and academic research
Similar to the six member states before it, the German government is not at all convinced that the Commission’s proposal will leave the legal principles established by the E-Commerce directive intact. From the German point of view this is especially worrisome as the liability exceptions apply to many platforms other than the video sharing and social media services targeted by the music industry. And while the music industry is without a doubt an important contributor to the EU economy, so are other sectors that rely on online platforms and the protections granted by the E-Commerce directive (see for example this excellent report by the Open Forum Europe and the Free Software Foundation Europe that highlights how Article 13 would create substantial burdens for collaborative software development in the EU). Continue reading →
Therefore, it is inadvisable to adopt Article 13 of the proposed Directive and its respective Recitals, 38 and 39. (page 2)
This opinion is based on an analysis that finds that the Commission’s proposal would create legal uncertainty, would risk conflicting with the user rights (exceptions and limitations) granted by the InfoSoc Directive, would be inconsistent with the E-Commerce Directive, and could enable abusive behaviour that threatens fundamental human rights, such as the freedom of expression and information.
A scathing takedown of the Commission’s Proposal
All in all, the responses to the questions posed by the six member states read as a scathing takedown of the Commission’s Proposal. Continue reading →
Today we are publishing an updated version of our position paper on Article 13 of the European Commission’s proposal for a directive on Copyright in the Digital Single Market. Since we have published our original position paper in January of this year, Article 13 has generated an enormous amount of discussion and has emerged as the most contested part of the Commission’s proposal. The discussions within the parliament and among the Member States are still ongoing and so far there is no clear indication where these talks will end.
In the updated policy paper we re-iterate our concerns (a few of them have recently been taken up by a group of Member States in a set of questions to the legal services of the Council), analyse proposals for amending the Commission’s proposal that have been adopted in the European Parliament, and provide a set of recommendations. Our key recommendation remains to delete article 13 from the proposal as it addresses a problem that lacks empirical evidence confirming its existence. Article 13, as drafted by the Commission, would limit the freedom of expression of online users and create legal uncertainty that has the potential to undermine the entire EU online economy. As such it is unworthy of being included in a Directive proposal that is intended to modernize the aging EU copyright framework.
Read the updated position paper below. If you are familiar with the issues at hand and/or the previous version you may want to jump straight to the updated part.
Position paper: EU copyright should protect users’ rights and prevent content filtering
Article 13 of the European Commission’s proposal for a Directive on Copyright in the Digital Single Market attempts to address the alleged disparity in revenues generated by rightsholders and platforms from online uses of protected content (the so called “value gap”). The proposed article attempts to do this by introducing an obligation for “Information society service providers that store and provide to the public access to large amounts of works” to filter user uploads. It would also require these providers to set up licensing agreements with rightsholders.
These proposed measures are highly problematic as they violate fundamental rights of users, contradict the rules established by the E-Commerce Directive, and go against CJEU case law. The measures proposed in the Commission’s proposal stem from an unbalanced vision of copyright as an issue between rightsholders and infringers. The proposal chooses to ignore limitations and exceptions to copyright, fundamental freedoms, and existing users’ practices. In addition, the proposal fails to establish clear rules with regard to how citizens can use protected works in transformative ways—such as remixes and other forms of so-called “user-generated content” (UGC). As a result, a system of this kind would greatly restrict the way Europeans create, share, and communicate online. Continue reading →