In January MEP Felix Reda presented a draft report on the implementation of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (a.k.a the Copyright Directive). This draft report has proven to be hugely controversial and as a result 556 amendments (1,2) have been tabled in the Legal Affairs committee (JURI) alone. A helpful overview of the full parliamentary process can be found over at edri.org.
While the JURI committee is trying to arrive at compromise amendments ahead of the vote on 6 May we thought that it would be useful to highlight the best and worst amendments that have been tabled in reaction to the report. The main criteria for identifying the best/worst amendments are our 2011 policy recommendations and our recent position paper on the on the review of the EU copyright laws. As the vast majority of the amendments are attempting to reverse the positions expressed in Reda’s draft report, the 15 amendments highlighted below can only offer a glimpse of what is at stake. So while we are recommending to vote against the 10 worst amendments listed below, this is by no means a complete voting list as there are many others which are just as bad (and some that are slightly better).
The ten worst amendments…
#1 We don’t care for the Public Domain
|AMs 252-257||Constance Le Grip, József Szájer (2x), Angel Dzhambazki, Sajjad Karim, Axel Voss, Therese Comodini Cachia, Eva Paunova, Pavel Svoboda, Marc Joulaud, Giovanni Toti, Luis de Grandes Pascual, Rosa Estaràs Ferragut, Sabine Verheyen|
Easily the worst amendment (or rather set of amendments, since there are multiple identical versions of this one) is AM 252 that proposes to delete Paragraph 6 of the draft report.This paragraph calls on the Commission to safeguard the Public Domain and to recognise the freedom of rights holders to voluntarily relinquish their rights and dedicate works to the Public Domain. At least the first part of the original paragraph should be something that every participant in the discussion about the future of the EU copyright rules can agree with, unless there are really people who want to ensure that all culture and information is privately owned.
#2 No freedom to link
|AM 409||Virginie Rozière, Mady Delvaux|
|15. Stresses that the ability to freely link from one resource to another is one of the fundamental building blocks of the internet; calls on the EU legislator to incorporate the case-law of the Court of Justice into its positive law so that reference to works by means of a hyperlink is not subject to exclusive rights, as it does not consist in a communication to a new public; observes that this option must be strictly limited to links which lead to freely available content; observes that the online intermediaries liability regime applicable to links to illicit content should be tightened up, particularly by revising the e-commerce directive;|
Another amendment that would fundamentally undermine the public good is AM 409. By putting the burden of figuring out if the target of a (hyper)link is ‘freely available’ and by proposing to make online intermediaries liable for links to ‘illicit content’, the amendment undermines one of the most fundamental building blocks of the open internet: the right to freely link to other resources on the net. Unfortunately this amendment is not alone; there is a whole range of them that try to limit the right to link.
#3 Longer protection for neighbouring rights
|AM 279||Virginie Rozière, Jean-Marie Cavada|
|7. Calls on the Commission to maintain the high level of harmonisation of the term of the term of protection of copyright, in accordance with the Berne Convention; emphasises that the term of protection for holders of related rights should also be harmonised;|
Given that this would mean a reduction of the term of protection from 70 to 50 years after the death of the author, it is not entirely unexpected that MEP Reda’s call ‘to harmonise the term of protection of copyright to a duration that does not exceed the current international standards set out in the Berne Convention’ has been met with a lot of resistance. Several amendments propose to delete paragraph 7, or suggest that the current term of protection should be maintained. This particular amendment–introduced by MEPs Virginie Rozière and Jean-Marie Cavada–goes even further in suggesting that the term of protection for related rights holders should also be harmonized (increasing the term length, one would assume). We’ve argued in our policy recommendations that current terms of protection for neighbouring rights and for copyright are way too long already and should be reduced.
#4 No freedom of panorama
|AM 421||Jean-Marie Cavada|
|16. Considers that the commercial use of photographs, video footage or other images of works which are permanently located in
physical public places should always be subject to prior authorisation from the authors or any proxy acting for them;
The original proposal by Reda calls on the EU legislator to ensure that all Member States introduce a freedom of panorama exception in their copyright laws. In the current situation some Member States allow anyone to take pictures and videos of copyrighted works (such as buildings) that are visible from a public space, while others don’t. With this amendment MEP Cavada tries to turn Felix Reda’s intention on its head as this would mean that prior permission from the rightholders would need to be obtained in all Member States.
#5 Public sector information does not belong to the public
|AMs 236 – 244||Constance Le Grip, Juan Fernando López Aguilar, Sergio Gutiérrez Prieto, Eider Gardiazabal Rubial, José Blanco López, József Szájer (2x), Virginie Rozière, Axel Voss, Marie-Christine Boutonnet, Jean-Marie Cavada (2x), Therese Comodini Cachia (2x), Rosa Estaràs Ferragut, Luis de Grandes Pascual, Marc Joulaud, Mary Honeyball, Giovanni Toti, Sabine Verheyen, Jytte Guteland|
A large number of MEPs have suggested to delete paragraph 5, which deals with the re-use of public sector information. The reason for this is generally explained by claiming that the re-use of public sector information is regulated by another EU Directive. However, deleting this paragraph does not fix the current situation in which each Member State has other rules with regard to the re-use of public sector information, which can severely limit the re-use of publicly-funded government information. As we have argued in our policy recommendation #13, the best way to ensure that public sector information can be used by anyone for any purpose is to ensure that it is not covered by copyright in the first place. This is echoed MEP Reda in her report.
#6 You can’t text and data mine anything without a license
|AM 446||Angelika Niebler|
|18. Stresses the need to enable automated analytical techniques for text and data (e.g. ‘text and data mining’) through licensing agreements;|
Here’s another example of an amendment that turns the original text on its head. This amendment by MEP Nieber (which stands in for a large number of similar ones) reverses the intention of MEP Reda’s proposal. Where the original text tries to establish the principle that the right to read is the right to (data)mine, MEP Nieber’s amendment would mean that researchers need to obtain licenses before they can conduct text and data mining on protected works. This means that researchers will need to pay twice for accessing the same works and puts EU-based researchers at a competitive disadvantage vis-a-vis colleagues in other countries where text and data mining does not require separate permissions from rights holders.
#7 No Harmonisation please (1)
|AM 312||Constance Le Grip|
|Observes that the list of 20 optional exceptions in Directive 2001/29/EC has permitted a flexibility of implementation which was necessary in order to take account of the diversity of the legal traditions of the Member States and their cultural policies, while ensuring the proper functioning of the internal market and respecting the principles of proportionality and subsidiarity;|
Amendment 312 (and many similar ones) attempts to change the central narrative of Felix Reda’s report. The original text points out that if Member States are free to choose if and how they implement an exception contained in the copyright directive, it could create problems such as legal uncertainty. Instead this amendment argues that the flexibility awarded to national legislators allows a diversity of cultural policies. In doing so this amendment ignores the central problem of the approach taken by the copyright directive, which results in a system where acts that are legal in one Member State could be illegal another Member State. This deprives citizens in many Member States of rights they should enjoy, and complicates many cross-border activities.
#8 No Harmonisation please (2)
|AM 328||Constance Le Grip|
This amendment is the logical result of the preceding one. It wants to remove Reda’s suggestion that exceptions and limitations should be made mandatory across Member States, instead of the current situation where a Member State has the option to implement (or not) the exception. Given that all exceptions and limitations contained in the copyright directive are by definition not harmful to the interests of rightholders, there is no good reason to not apply them uniformly in all Member States. Harmonizing the exceptions and limitations of the copyright directive is an important part of creating a digital single market that not only serves the interests of rights holders and intermediaries, but also takes the interests of citizens and society at large into account. It also is in line with our policy recommendation #3.
#9 DRM über alles!
|AM 531||Angelika Niebler|
|23. Stresses that, especially in the digital age, the use of technological protection measures should be allowed to redress the balance between free reproduction (e.g. in the context of private copying) and the exclusive right to reproduction;|
This may be the most brazen example of turning Reda’s original text on its head. Where the original text stresses the need to ensure that user rights that are conferred by law cannot simply be taken away by way of technological protection measures (a.k.a. DRM), the amendment encourages this very behavior. Adopting the amended language would give carte blanche to rights holders to use technology to undermine user rights and establish their own copyright rules. As we argue in our policy recommendation #5 this would be highly detrimental to the public domain.
#10 Extra rights for press publishers please
|AM 204||Angelika Niebler|
|add a new sub-paragraph||3g. Notes that the current legal framework provides for neighbouring rights for performers, phonogram producers, film producers and broadcasting companies, but not for press publishers; calls on the Commission, therefore, to analyse whether neighbouring rights for press publishers can provide appropriate protection and remuneration for their work in a digital media world;|
As expected, there are also a number of amendments that urge the Commission to explore the possibility of introducing a European neighbouring right for press publishers. This particular amendment attempts to apply the following logic: Press publishers deserve a neighbouring right because other types of rights holders have neighbouring rights. This reasoning is quite obviously flawed but also extremely dangerous as it opens the door for other groups of rights holders (such as broadcasters) to come and request their ‘own’ type of neighbouring rights. While it is highly unlikely that press publishers will gain anything from such a right, it is clear that it would further erode the public domain.
… and the five best amendments tabled in JURI
With a total of 556 amendments there also needs to be some good ones. Unfortunately, amendments that improve on Felix Reda’s report are much fewer in number than the ones undermining it, and come from a much smaller number of MEPs. Here are the 5 best amendments:
#1 What is in the public domain, must remain in the public domain
|AM 264||Felix Reda, Victor Negrescu, Josef Weidenholzer|
|6. Calls on the Commission to safeguard public domain works, which are by definition not subject to copyright protection, and therefore should be used and re-used without technical or contractual barriers; therefore urges the Commission to clarify that once a work is in the public domain, any digitisation of the work which does not constitute a new, transformative work, stays in the public domain; also calls on the Commission to recognise the freedom of authors to dedicate their works to the public domain;|
Amendment 264 – put forth by MEPs Felix Rdea, Victor Negrescu and Josef Weidenholzer (yes MEPs are allowed to table amendments to their own reports) – expands paragraph 6 with a call on the Commission ‘to clarify that once a work is in the public domain, any digitisation of the work which does not constitute a new, transformative work, stays in the public domain’. This is fully in line with our policy recommendation #5 and with the Europeana Public Domain Charter. Unfortunately, this is something that is not universally recognized by cultural heritage institutions across Europe. In this situation a clarification along the lines of what is proposed in this amendment seems very much needed.
#2 Online access to out of commerce works in the collections of cultural heritage institutions
|AM 348||Marietje Schaake|
|add a new sub-paragraph||11d. Calls for expanding mandatory exceptions beneficial for public interest institutions, such as libraries, museums and archives, which play a central role in facilitating online access to cultural heritage, and access to information that allows them to make protected works in their collections, that are not in commercial circulation anymore, or otherwise actively managed by their rights holders, available for online access by the public;|
Speaking of cultural heritage institutions, one of the biggest flaws of Felix Reda’s draft report is the fact that it did not contain a recommendation related to the problems faced by cultural heritage institutions when they try to make their collections available online. This amendment tabled by MEP Marietje Schaake proposes to add a call to the Commission to enable these institutions to make available those works in their collections that are not in commercial circulation available online. This is in line with the demands voiced by the cultural heritage sector and our policy recommendation #10. It should be a uncontroversial addition to the report.
#3 Registration please!
|AM 266||Felix Reda, Christian Ehler, Josef Weidenholzer|
|add a new sub-paragraph||6a. Considers that the registration of works should be encouraged, in order to clearly identify and locate right holders, as well as to distinguish between copyrighted and non-copyrighted works, thus improving legal certainty, facilitating the licensing of rights and limiting the spread of orphan works; more broadly, is of the opinion that mechanisms allowing to identify the initial rightholder, the transfer of rights and the publication date of the work, should serve as a presumption of authorship;|
Here’s another addition by Felix Reda to his own report. This amendment makes the case for encouraging the registration of works in order to receive copyright protection. As evidenced by our policy recommendation #8, we consider registration an important element of a modern copyright system that focuses on protecting rights where this is desirable, and which minimizes the unwanted protection of works of authorship. Encouraging registration of works as proposed by this amendment is a good first step in this direction.
#4 not just mandatory but also uniform
|AM 341||Lidia Joanna Geringer de Oedenberg|
|11. Calls on the Commission to make uniform and mandatory all the exceptions and limitations referred to in Directive 2001/29/EC, to allow equal access to cultural diversity across borders within the internal market and to improve legal certainty;|
This amendment provides a small but important addition to paragraph 11 of the draft report. As outlined above, we think that making all exceptions and limitations mandatory is an important step towards a truly European copyright system, but that is only half of the work. In the current situation Member States are not only free to chose if they want to implement an exception, but they also have substantial freedom in determining how they want to implement a particular exception. As a result exceptions are not uniformly implemented across Member States. Adding the words ‘uniform and’ to the text of the draft report addresses this problem.
#5 No contractual override of limitations and exceptions
|AM 535||Felix Reda, Josef Weidenholzer|
|23. Stresses that the effective exercise of exceptions or limitations, and access to content that is not subject to copyright or related rights protection, should not be
hindered by technological measures or contractual terms;
Finally, another small but important addition is this amendment dealing with the recommendation to protect exceptions and limitation from being overridden by technical protection measures. If adopted, this amendment would ensure that the same sort of protection also applies to contractual terms that attempt to override the user rights granted by exceptions or limitations.
The vote in JURI on the amendments is currently scheduled for the 6th of May. This means that discussions on compromise amendments are currently taking place between the different political groups. If you want to help with ensuring that the final report calls for a meaningful reform of the EU copyright rules that strengthens the Public Domain then you should get in touch with MEPs that are part of the Legal Affairs Committee, point out some personal problems you would have if the amendments listed in the first section passed and try to get them to support the amendments in the second section. It helps if you contact a MEP from your own country or language group, as this makes communication usually easier. At this late stage in the process it is also advisable to call rather than write, as mailboxes have already been filled. You can also find a more comprehensive list of voting recommendations prepared by EDRi here.