Seven ways to save the EU copyright reform effort in 2018

Vuurwerk ter ere van de kroning van Willem III en Maria II tot koning en koningin van Groot-Brittannië
Its 2018! Time to finally #fixcopyright
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With the arrival of 2018 the discussions of the Proposed Copyright in the Digital single Market Directive enters into its third year. After more than a year of discussions in both the Parliament and the Council, it is likely that 2018 will at the minimum see final positions from both institutions. Depending on how quickly these positions will be established we may even see the adoption of the directive in 2018. To get everybody up to speed here is a quick refresher of what is at stake in 2018:

1. The publishers right must die!

Form the start the idea of granting press publishers a neighbouring right (an extra layer of copyright) in their publications has been one of the most controversial parts of the Commission’s proposal. The idea, based on laws that have failed in both Germany and Spain, is so deeply flawed that there is almost no one from the academic community who is willing to argue in favor (there are of course lots of academics who oppose it). Even worse, in the course of 2017 it has become clear that both the European Parliament and the European Commission have tried to lock away self-commissioned studies that clearly show that the new right not only would be ineffective at directing views (thus, funds) back to publishers, it would also harm media pluralism and access to information.

In spite of the overwhelming amount of evidence speaking against it, and even though its original sponsor (Commissioner Oettinger) is no longer in charge of the dossier, the idea of granting press publishers more rights in order to economically strengthen them refuses to die. It is time that MEPs and the Member states realize that adopting laws based on wishful thinking is the opposite of evidence based policy making, and refuse to create additional rights for publishers. This should be easy as there is an alternative proposal that would strengthen the legal position of press publishers without threatening the freedom to link.

2. Real legal certainty for Text and Data mining!

One of the core problems of copyright systems without a flexible exception (like fair use) is that everything not specifically permitted in the text of the copyright law will be deemed an infringement. This has resulted in an unclear legal status regarding Text and Data mining (letting computers read and interpret texts and other data). Since most forms of text and data mining require the making of copies, rights holders argue that text and data mining needs to be licensed, even if the entity engaging in TDM has legal access to the text and/or data to be mined.

The proposed DSM directive contains a new mandatory exception that would allow research organisations to carry out text and data mining for the purpose of scientific research. While this sounds like a good thing (the directive is allowing something), upon closer inspection it turns out to be quite limiting. Under the proposed rules Text and Data mining by anyone other than research organisations (including journalists, citizens, non profit organisations or companies) or for any purpose other than scientific research (research, data-journalism, product development), would be illegal unless it has been licensed. This means that in its current form the Commission’s proposal will make Europe a very unwelcoming place for anyone working in the field of machine learning, artificial intelligence or any other data driven from of technology. Only an exception that allows TDM by anyone for any purpose can ensure that Europe remains a place where data-driven innovation can flourish.

3. No censorship filters for online platforms!

Article 13 is the biggest mess of the Commission’s proposal. It has been hugely controversial from the start, with its proponents arguing that without European culture will wither away, while its opponents (including us) convinced that it will change the very nature of how we can express ourselves online. The article itself is such a garbled mess that no one quite understands how it is supposed to work and whom it will affect (which has prompted a number of member states to ask the Council’s legal service to explain it to them). By the end of 2018 there are a number of versions floating around, including variants that explicitly try to redefine core concepts of copyright (what is a communication to the public) and undermine the liability exception that online platforms have under the e-commerce directive.

While it is unclear in which direction the discussions will go it is clear that article 13 represents a ticking time bomb that has the potential to do a lot of damage to the freedom of expression online, while causing substantial collateral damage in areas far away from the music industry, such as open access publishing and software development. It is time to realize that article 13 as it was proposed is so badly drafted that the only responsible thing to do is to delete it. In place of this we need to have a comprehensive discussion about the role and obligations of online platforms. That should get us to better solutions than automated upload filters that have the very real potential to limit our freedom of expression.

4. Copyright rules for education that work!

In 2016, we were very happy to see the educational exception among elements of copyright that the Commission planned to modernise. We remained this way until the moment we saw the Commission’s proposal – in which a harmonized exception for educational uses is marred by a licensing override. As a result, we expect splintering of rules instead of harmonization, and additional costs caused by new licensing schemes, that will replace the exception.

Throughout 2017, the initial proposal has remained largely intact. And even the exception remains narrow in scope – limited to formal educational institutions and unfit for fulfilling Europe’s vision of lifelong learning. We have some hope that the scope might be extended in the Parliament’s final proposal. Otherwise, the forecast for educational users is bleak, as the licensing override remains in place.

Part of the issue is lack of interest among educational stakeholders, most of whom don’t understand copyright, or don’t want to be involved in a political process. The situation is very different than with regard to cultural heritage or TDM, where stakeholders are vocal about their rights. For over a year, we’ve been building a coalition in support of good copyright for education, and are lucky to have the support of several strong educational groups. We also see growing interest in this issue among Ministries of Education. Hopefully together we can still convince lawmakers to create right copyright for educators.

5. Get Europe’s cultural heritage online now!

Europe’s cultural heritage institutions (CHIs) are one of the pillars of our identity. For the past two decades libraries, museums and archives have been struggling to make use of the opportunities of the digital revolution. Instead of being able to share their collections and engage with their audiences online, most institutions are forced to spend enormous ressources on clearing rights for works that have been long forgotten by their authors and other rights holders. This has resulted in a 20th century black hole in which most of the collections from this timeframe remain inaccessible.

The proposed DSM directive recognises this problem but fails to provide a comprehensive solution. Allowing CHIs to make out of commerce works from their collections available online via extended collective licensing will solve the problem in some areas (sectors and countries with well established collective management organisations), but will not help in others (sectors or countries where no or only weak collective management organisations exist). It also makes collective management organisations the arbiters of which collections can be published and which cannot, without incentivising them to help getting more of Europe’s cultural heritage available online.

The Commission’s proposal can be turned into a real solution by adding a fall back exception that kicks in in situations where the licensing mechanism proposed by the Commission does not work. By unlocking more of the out of commerce works held by cultural heritage institutions, everyone wins: creators will have new opportunities for rediscovery and commercialisation of their works, and European citizens will enjoy a much wider access to their own culture, in all of its diversity.  

6. No new unwaivable remuneration rights!

The Commission’s original proposal limited its interventions with regard to the remuneration of authors and performers to a transparency obligation (regarding the exploitation of their works by publishers and other intermediaries) and a contract adjustment mechanism (a so called “bestseller clause” that would allow authors to renegotiate contracts for works that proved to be unexpectedly popular). As part of the discussions in the European Parliament, MEPs have added a clause that would give creators an unwaivable right to remuneration for the exploitation of their works.

This measure, intended to strengthen the bargaining position of creators, is hugely problematic. By making such rights unwaivable it would limit the ability of creators to freely share their works (under Creative Commons licenses or otherwise) and it locks creators into business models that rely on intermediaries. As with any new layer of rights (see point 1 above) the cure risks being worse than the disease. Legislators should tread very carefully here to prevent unintended negative consequences such as undermining open access publishing models and limiting creators in how they can share their works.

7. Include some real pan European user rights!

For a directive that that refers to an idealized “Digital Single Market” in its title, the proposed DSM directive does surprisingly little for harmonizing those parts of the copyright framework  that directly affects Europe’s citizens. The proposed exceptions for educational use and access to cultural heritage will have some benefits for users, but everyday activities like taking photos of protected works in public spaces (the so-called “freedom of panorama”) or the use of copyright protected works in memes, remixes and other forms of so-called “User Generated Content” are ignored by the Directive.

As a result of thiseveryday activities that are perfectly legal in one member state will remain illegal in others and much of our everyday online creative expression will remain in a legal grey zone. Members of the European Parliament have come forward with proposals that would create more legal clarity in this area and lawmakers need to realize that without creating more legal clarity for end users they will undermine the remaining public support for our copyright system among users and many creators alike.