Earlier this year, Poland initiated a legal challenge against Article 17 of the Directive on copyright in the Digital Single Market before the Court of Justice of the European Union (CJEU) [C-401/19]. The CJEU has finally published the application for this legal challenge. Our member, Centrum Cyfrowe Foundation, has tried to get access to the complaint before using Freedom of Information requests, without success…
In our opinion, referring the Directive to the Court of Justice is a good step that can help clear controversies concerning Article 17. An independent court will assess issues that in the policy debate are usually dismissed by representatives of rightsholders as fear-mongering or disinformation.
The Republic of Poland seeks the annulment of Article 17(4)(b) and Article 17(4)(c), in fine of the Directive on copyright in the Digital Single Market. In the alternative, should the Court find that the contested provisions cannot be deleted from Article 17 of Directive without substantively changing the rules contained in the remaining provisions of that article, the Republic of Poland claims that the Court should annul Article 17 of Directive in its entirety.Continue reading
Copyright not only regulates the interests of creators and intermediaries, but also applies to users’ rights. This was one of our main arguments in the discussion on Article 17 of the new copyright directive, which was often disregarded by our opponents. In our opinion Article 17 is not well-balanced and creates threats to freedom of expression. Such an assessment is shared by others: the UN Special Rapporteur on Freedom of Expression, non-governmental organizations dealing with digital rights, and a significant part of the academy. Now the very same objections will be evaluated by Court of Justice of the European Union.
Last week, the Government of the Republic of Poland filed a challenge to the new Directive on Copyright in the Digital Single Market, specifically Articles 17(4b) and 17(4c). The Minister of Culture and National Heritage explained:
“in our opinion this mechanism introduces solutions with preventive censorship features. Such censorship is forbidden by both the Polish Constitution and EU law – the Charter of Fundamental Rights guarantees freedom of expression.”
Interestingly, by filing the charge, the Polish government fulfilled a political promise made during the recent electoral campaign. At that time, Polish Prime Minister Mateusz Morawiecki tweeted that the new law is “a disproportionate measure that fuels censorship and threatens freedom of expression.”Continue reading
The final vote on copyright reform in the plenary session of the Parliament is scheduled for March 26. After more than 30 months of work on this topic our overall assessment remains unchanged: The proposed Directive is bad, and will not make the internet work for people. The final “compromise” text has done nothing to accommodate the concerns we and others have raised over the past 2+ years.
As long as Article 13 remains part of the package, the only sensible way forward it to make sure that Directive will be rejected by the European Parliament.
There is still time to act! Read along to find out what you can do in the last days before the vote.
Upload filters don’t (and can’t) respect users’ rights
Through the lens of copyright, Article 13 turns upside down how the web works. Instead of permitting users to upload content to platforms and resolving platforms from liability as long as they act quickly to remove infringing content once notified, Article 13 would require nearly all for-profit platforms that allow UGC to conclude licenses all user uploads. If they don’t obtain the licenses, then the only option will be to install upload filters and censor content in order to ensure that any unsanctioned content remains off their service. If the platforms don’t comply, they could be held liable for significant copyright infringement damages. Continue reading
We have argued again and again that copyright reform is also fundamental rights matter – therefore we co-signed an open letter to the European decision-makers asking them to add human rights safeguards to Article 13 of the proposed Copyright Directive on the Digital Single Market throughout the negotiation process.
The fundamental rights safeguards crucial for ensuring compliance of the new Directive with the Charter of Fundamental Rights are in accordance with our four principles for minimising harm to users, creators and the internet. The letter signed by 27 fundamental and digital rights organizations raises concerns about the current state of play for Article 13 and calls for:
Platforms control all information available on the internet and they are empowered to rank and take down content at their discretion. These platforms serve “the internet” as we know it now. Internet platforms are able to make decisions about freedom of expression with no transparency or accountability and the proposed Directive does not change that. In cases where content is blocked or taken down, it is critical that they properly justify their decisions; decisions that should be subject to proper redress mechanisms to ensure free speech and freedom of information. Besides providing an alternative dispute resolution, the EU could provide, for free, legal mechanisms across the EU to settle disputes between users, copyright holders and internet platforms.Continue reading
On 19 November 2018, 54 NGOs (including COMMUNIA) representing human rights and media freedom sent a letter to the Council of the European Union. The letter raises ongoing concerns regarding the proposal of the Directive on copyright in the Digital Single Market. The signatories underline that the current proposal risks creating severe impediments to the functioning of the internet and the freedom of expression of all, and urge the Council to take citizens’ rights into consideration during the trilogue negotiations:
For the ongoing trilogue negotiations, we urge you to reject obligatory or “voluntary” coerced filters and to keep the current liability regime intact. Enforcement of copyright must not become a pre-emptive, arbitrary and privately-enforced censorship of legal content.
Moreover, we ask you to hear the voice of academic research that a press publishers’ right will not have the intended effect and will instead lead to a less informed European society.
The letter is not only another call for a productive re-shaping of the future European copyright framework. It is also a strong voice against the predominant market-only narrative around the ongoing reform. NGOs continue to raise concerns related not just to the economic impact of the new Directive, but its deep influence on society, openness, fundamental rights and access to knowledge.
You can read the letter here (pdf).
Not surprisingly, the letter focuses on the most disputed provisions–Article 13 upload filters and Article 11 ancillary copyright for press publishers. Since the beginning of the legislative process COMMUNIA has worked on nearly all parts of the Directive comments (including the new educational exception, TDM provisions and others), and we regret that there seems to be little attention paid to these other important aspects as policymakers focus only on the most controversial parts of the plan.
We still can’t believe how bad the last plan of MEP Axel Voss for the press publishers right is. At the end on March MEP Voss released his proposal for a compromise on Article 11, and the changes he is proposing are even more radical and more broken than anything we’ve seen thus far. It’s time for everyone to stand up and say again, “enough is enough.”
Today, Communia and 55 other organizations, including associations of European public institutions, companies and start-ups, journalists and libraries, news publishers and civil society organisations sent a letter to MEP Voss trying again to present the obvious and well documented arguments against the introduction of a new right for press publishers. The signatories hold that that a neighbouring right for press publishers and news agencies will neither support quality journalism nor foster the free press. Rather it will lead to massive collateral damage and a lose-lose-situation for all stakeholders involved.
Unfortunately, MEP Voss has his very own definition of the term “compromise”. With regard to Article 11 it is especially unfortunate since this is one of the few contentious issues where a real compromise has already been identified: that is, the approach presented earlier by MEP Voss’ predecessor MEP Comodini (and also contemplated in the Estonian presidency) that would rely on a presumption that publishers are the rights holders, thus making it easier for these entities “to conclude licences and to seek application of the measures, procedures and remedies.” But this idea was simply abandoned by the current rapporteur. The signatories of the letter agree that given the empirical evidence presented thus far that the right will not accomplish what it sets out to do – not to mention the detrimental effects on journalism and access to information, Article 11 must be deleted.
The ongoing and neverending EU copyright reform is often depicted in the way that the main issues are money, value distribution, and how to protect existing business models. These are of course valid concerns, but they shape the whole discussion in very narrowly-framed way. The most important question is how copyright reform will influence various groups of stakeholders, not only when it comes to businesses that want to make money, but also for the individuals and organisations that both need access to information and content, and who also wish to create and share. And when it comes to science and knowledge sharing (not only in academia, but generally innovation) the answer is very clear – the proposal presented by the European Commission will block the free circulation of knowledge.
Vox Scientia is a group of organisations (including Communia) and individual educators, researchers, librarians, cultural heritage professionals, and students who are standing up and aiming to be the ‘Voice of Knowledge’ – ‘Vox scientia’ – in this debate. The parties engaged believe in a world where all people are able to freely exchange ideas, create, learn, and contribute to the global knowledge commons. The aim of the initiative is to mobilize people to stand up against dangerous and restrictive copyright solutions backed by the European Commision. Continue reading
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.
Today, over 50 NGOs (including COMMUNIA) representing human rights and media freedom have send today an open letter to the European Commission President, the European Parliament and the Council asking them to delete the content filter mechanism. This letter comes ahead of a crucial vote in the European Parliament’s Civil Liberties committee, in which the MEPs tasked with upholding our fundamental freedoms will give their opinion on the upload filters that the Commission wants to introduce through article 13. The signatories of the letter, which include many prominent human rights organisations like the Freedom of the Press Foundation, Human Rights Watch and Reporters without Borders, believe that the mechanism introduced through article 13:
- 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
Summer is definitely over in Brussels and in member states – everyone seems to be back to work, which means in our case back to the copyright discussion. Yesterday Statewatch published a first compromise proposal by the Estonian Presidency. The document refers only to parts of the Commission’s draft directive, namely Articles 1, 2, and 10 to 16. From the very beginning we have been involved in the discussions on ancillary copyright for press publishers (Art. 11) and the upload filter (Art. 13). On both of these issues the Estonian proposal contains two different approaches, each a fact which further highlights how divisive these provisions are among the member states on article 11. One of the versions somewhat improves the Commission’s proposal while the other one makes it much worse. On article 13 both versions would make the Commission’s already terrible proposal even worse.
Ancillary copyright for press publishers – to be or not to be?
On the issue of new rights for press publishers the Estonian compromise proposal does not really present a compromise. The two versions mark different sides of the spectrum. On the one hand a version that would enact a massive expansion of the rights of publishers that goes well beyond the Commission’s proposal that dealt with rights in digital uses of press publication only. On the other hand, we have a version that does not create new rights while still giving publishers tools to act against infringement.
The first option (which can probably be attributed to France) expands the original bad European Commission’s proposal if it comes to the scope of the ancillary copyright from digital publications to publications published in any media, including on paper (in the proposal the article would also apply to videos and photos). What is even worse, hyperlinking is explicitly included in the scope, as long as such links constitute a communication to the public (in the absence of clear guidance this would open a whole new can of worms). This version would be a clear win for big publishers, and a major restraint for free flaw of information online. Continue reading
One might think that the debate on the ancillary copyright for press publishers is over – both JURI Rapporteur MEP Therese Comodini Cachia and IMCO Rapporteur Catherine Stihler rejected the Commission’s proposal to provide publishers with a competitive advantage by using copyright legislation. Unfortunately, even with such progressive voices, the misconceptions about the ancillary copyright were still visible even during last weeks Legal Affairs Committee hearing , where MEPs seemed not to understand that aggregators help news outlets gain a larger audience. And the debate in media on this issue was never more heated and polarized.
Strong voice of El Pais
El País, the largest and internationally most renowned Spanish daily newspaper, has published an op-ed strongly criticizing the idea of introducing the ancillary copyright for press publishers:
But anybody who thinks that those rights can be turned into a fortress from which to impose obligatory and inalienable fees is mistaken. This is a model that has been shown to fail in Germany, in 2013, and in Spain in 2014. Then, efforts to impose an obligatory fee on Google for the use of links to news stories provoked a major fall in web traffic for the Axel Springer group and the closure of Google News in Spain.
What is crucial, El Pais understands the value of digital technologies for press publishers, while many others, especially big German publishers, threat internet as a threat for their business model.
Thanks to the new digital technologies, we are able to reach millions of people we would never have been able to using the old, traditional print methods, while at the same time offering our readers more and better stories in real time and in more attractive formats.
The business of selling only print newspapers is over and will not be back. What publishers should do is to is adjust their business models to benefit from opportunities created by internet, and not asking for more (copy)rights without providing any evidence that more right actually help them (instead of just hurting others). El Pais voice, coming from a country with first-hand experience of the ancillary copyright, is invaluable in this ongoing debate. Continue reading