This is a slightly edited version of an analysis that was first published by Europeana on the Europeana Pro website
More than a year after the European Commission published its proposal for a Directive on Copyright in the Digital Single Market (DSM directive), the proposal continues to be discussed both in the Council and in the European Parliament. While the discussions in the European Parliament have recently slowed down to a crawl (the vote in the Legal Affairs committee is not expected before January), the discussions between the Member States in the Council are picking up steam: earlier this week, the Estonian Council presidency’s consolidated compromise proposal was made public.
The compromise proposal contains an entire new chapter (chapter 1a – Measures to facilitate collective licensing’) that contains an a new article (art 9a – ’Collective licensing with an extended effect’). To anyone familiar with the Commission’s proposal (and the critical reception by cultural heritage institutions) this addition will appear somewhat odd as the Commission’s original proposal already relied on ’collective licensing with an extended effect’ as a mechanism that would allow cultural heritage Institutions to make out of commerce works (OOCW) from their collections available online.
So what exactly is going on here? Articles 7-9 of the Commission’s proposal are aimed at enabling the cross border use of out of commerce works. This would allow cultural heritage institutions to make such works from their collections available online so that they can be accessed from everywhere within the EU. While we think that relying on extended collective licensing alone will not be sufficient to achieve this objective for all sectors and all types of work, we are happy with the ambition to solve this problem on an EU wide basis.
A legal basis for Extended Collective Licensing
By contrast, the newly proposed article 9a focusses on (existing) national extended collective licensing arrangements and would not have any cross border effects. Instead, it introduces provisions into the EU legal framework that would remove the legal uncertainty that currently surrounds the extended collective licensing arrangements that exist in a number of (mainly nordic) EU Member States:
A functioning copyright framework that works for all parties requires the availability of proportionate, legal mechanisms for the licensing of works. Systems such as extended collective licensing or presumptions of representation are a well-established practice in several Member States and can provide such solutions, […] Given the increasing importance of the ability to offer flexible licensing solutions in the digital age, and the increasing use of such schemes in Member States, it is beneficial to further clarify in Union law the status of licensing mechanisms allowing collective management organisations to conclude licences, on a voluntary basis, irrespective of whether all rightholders have authorised the organisation to do so (Recital 28a + 29c of the Estonian Compromise proposal)
Two weeks ago the IMCO committee managed to give a new breath of life into the proposal for an ancillary copyright for press publishers that many observers (including us) had presumed to be more or less dead in the water. Following on the heels of this surprising development interesting information is emerging from Spain where a similar right has been existing since 2015. The situation in Spain shows how ineffective additional rights for publishers are and how publishers try to influence the EU policy debate on copyright reform by manipulating evidence.
Earlier this week the Spanish Association of Publishers of Periodical Publications (AEEPP) published an English version of a study that assesses the impact of the introduction of the ancillary copyright (article 32.2 of the Spanish Copyright Act) in Spain. This article states that a copyright fee must be paid by sites aggregating or otherwise linking to online news to the publishers of such news. These payments (referred to as a Google Tax, after the fact that they seem to be primarily intended to extract revenue from Google) are collected by the CEDRO copyright collection society.
The study comes to a pretty devastating conclusion that clearly shows that granting a new right to press publishers is highly problematic and will not have the desired result of stabilising the business models of struggling publishers:
This analysis concludes that there is neither theoretical nor empirical justification for the introduction of a fee to be paid by news aggregators to publishers for linking their content as part of their aggregation services. Likewise, the arbitrary nature of the fee, which prevents publishers from opting out of receiving the payments, inflicts harm on a large number of outlets, particularly small publications.
Moreover, the introduction of such a fee has a negative impact on competition, not just for the aggregator segment, but also for online publications and, ultimately, for consumers, including readers and advertisers. Continue reading
Yesterday we sent an open letter on copyright reform to the EU Member State ministers attending the Competitiveness Council. We have done so together with more than 60 other civil society and trade associations – representing publishers, libraries, scientific and research institutions, consumers, digital rights groups, start-ups, technology businesses, educational institutions and creator representatives.
The letter reflects our growing concern over the fact that the EU is wasting the long overdue opportunity to reform its outdated copyright framework. And that we are missing a chance to make it fit for purpose in the digital environment. At the root of the problem is the Commission’s backward looking proposal for a copyright in the digital single market directive that was presented in September of last year.
More than half a year later we see the discussion on the reform proposal caught up within the narrow vision that the Commission has presented. While the European Parliament is so far moving in the direction of fixing the biggest flaws of the Commission’s proposal and seems to be willing to introduce some additional positive elements, the Member States are moving in the opposite direction. There is a lot of concern that Member States are attempting to hollow out the positive aspects of the proposal while doubling down on the measures designed to protect the business interests of legacy intermediaries (such as publishers and record companies).
Given this we have joined forces with a diverse group of stakeholders to ask the Member States (and other EU lawmakers) to oppose the most damaging aspects of the proposal and to embrace a more ambitious agenda for positive reform. In particular the open letter is highlighting three key messages: Continue reading
One of the issues that has been glaringly absent from the Commission’s proposal for Copyright in the Digital Single Market Directive is better protection of the Public Domain from Cultural Heritage Institutions who are trying to appropriate Public Domain works that they have digitized.
Most of Europe’s Museums, Libraries and Archives digitize Public Domain works in their collection in order to make them available without any restrictions (in line with our Public Domain Manifesto and Europeana’s Public Domain Charter). However, a minority of institutions uses loopholes in copyright legislation to claim exclusive rights over digital reproductions of works for which copyright protection has expired.
The legal basis for such claims is often found in copyright rules that also afford some form of protection to non-original photographs. These are photographic reproductions that qualify for copyright protection because they do not constitute the “own intellectual creation” of the author. Such loopholes exist in 7 EU member states and the proposed DSM directive would have been an opportunity to close them. Continue reading
Traditionally, at the beginning of the new year we celebrated what is known as Public Domain Day: on the first of January of any given year the works of authors who have been dead for more than 70 years enter the public domain. As this is a decisive year for copyright reform in the European Union, it seems much more important to highlight the dangers for the public domain that we are facing in the context of the copyright reform process (you can refer to Wikipedia and the Public Domain Review for overviews of works that have entered the public domain this year).
While copyright reform generally has a positive connotation, it is important to realise that a reform does not mean that things will change for the better. As we have pointed out before, the copyright reform package presented by the Commission is extremely one-sided. And both the attempt to introduce a new right for press publishers, and the requirements for online platforms to filter user uploads, have the potential to cause a lot of damage to the public domain and the ability of users to access information and express themselves online.
Shrinking the public domain
When it comes to the public domain the proposal to introduce a new right for press publishers contained in article 11 of the Commission’s proposal is the most dangerous, as it has the potential to shrink the public domain. Our 2010 Public Domain Manifesto defines the public domain as being
… comprised of our shared knowledge, culture and resources that can be used without copyright restrictions by virtue of current law.
This definition implies that the scope of the public domain can change in response to changes of the legal environment. The most obvious would be changes to the duration of copyright protection. Lengthening the term of protection would shrink the public domain while shortening the term would grow the public domain (as we argue for in our policy recommendation #1). Continue reading
Last week a number of Europeana organisations representing libraries and other cultural heritage organizations released a joint response to the Commission’s copyright proposals. The paper, issued by LIBER, EBLIDA, IFLA, Public Libraries 2020 and Europeana, deals with those elements of the EU copyright framework that are directly relevant to cultural heritage institutions.
This includes four issues addressed in the Commission’s Proposal for a Directive on Copyright in the Digital Single Market (the exceptions for Text and Data Mining, Education, and Preservation copies, and the measures aimed at improving access to out-of-commerce works), and a number of issues that the Commission’s proposal fails to address, such as on-site access to collections and online document supply.
Exceptions are too narrow
The paper underlines that from the perspective of cultural heritage institutions, EU copyright reform needs to focus on updating and harmonizing copyright exceptions:
We believe that overall welfare is best served by a robust and mandatory set of copyright exceptions which facilitate access to knowledge.
Given this general approach it is not surprising the cultural heritage institutions share many of the same concerns we raised in our analysis of the Commission’s proposal. Continue reading
Earlier this week the JURI committee of the EP held the first hearing on the proposed Copyright in the Digital Single Market directive. This hearing officially kicks off the process through which the European Parliament will develop its position on the Commission’s proposal. The parliamentary process is shepherded by MEP Therese Comodini Cachia (EPP, Malta). According to a preliminary timeline published by her, the process will be completed before next year’s summer break.
Wednesday’s hearing (recording) focussed on one of the most controversial issues of proposed Directive, the measures for filtering and blocking user uploaded content contained in article 13. These are supposed to address a so-called “value gap” caused by online platforms that allow users to share content online. The Commission has bought into the rightsholders narrative, although evidence why these measures are necessary is still lacking.
The wrong answer to online creativity: privatised censorship and filtering
As our friends at EDRi have pointed out in painstaking detail, such an obligation to monitor and filter is at odds with other EU laws and with jurisprudence from the Court of Justice of the EU, and would negatively impact the freedom of expression online. Continue reading
Last week the CJEU handed down another judgement dealing with digital activities of libraries (see our take on the e-lending decision from 2 weeks ago here). In its judgement in the Doke & Soulier case (C 301/15) the court ruled that the French law on out-of-print books, which allows French publishers to publish digital editions of out-of-print books, violates the exclusive rights of authors as established by the InfoSoc directive. This means that the French scheme for making out-of-print books available (reLire) will either need to be modified or scrapped.
The judgement does not come entirely unexpected as it is largely in line with the Advocate General opinion from earlier this year. As we have already noted in our analysis of the AG opinion, the case has the potential to undermine Extended Collective Licensing (ECL), which is currently held as the solution for the issue of out-of-commerce works.
At this point it is unclear how the Doke & Soulier judgement relates to the EU Commission’s proposal for dealing with out-of-commerce works in the collections of cultural heritage institutions—currently a part of the proposal for a Copyright in the Digital Single Market directive. Regardless, the judgement casts a shadow of doubt over ECL arrangements such as the one at the center of the Commission’s proposal. This is mainly due to the fact that through this decision the court has established stringent criteria that national measures would need to fulfil. The fact that according to the court “every author must actually be informed of the future use of his work by a third party and the means at his disposal to prohibit it if he so wishes” (para 38) seems to contradict the very purpose of Extended Collective Licensing arrangements, which is to circumvent the need to clear rights on a per-work (or per-rightsholder) basis.
Can ECL still provide a solution for out-of-commerce works?
Looking at the reasoning of the court, it becomes evident that the judgement is not so much concerned with the operation of of ECL as a legal mechanism, but rather with the question of whether EU member states can limit the ability of authors to exercise their exclusive rights in ways other than those foreseen by the EU legislator. The court answers this with a resounding “no” and then goes on to examine whether the French system respects the ability of authors to object to the use of their out-of-print works. The court comes to the conclusion that it does not, because authors are neither individually informed about future uses of their works, and because their ability to opt out of such uses is limited. In summary, the court does not declare ECL in general incompatible with the InfoSoc directive, but has ruled, that the French ECL implementation does not sufficiently respect the authors’ exclusive rights. Continue reading
Yesterday the Court of Justice of the European Union delivered good news in a case that that eagerly watched by Librarians across the Europeana Union. In its judgement in the case VOB vs Stichting Leenrecht (C-174/15 – press release here) the court ruled that rental right and lending right directive also covers e-lending. This is good news for libraries and their users as this means that (within certain limits) libraries can lend out e-books on the same legal basis as they lend out paper books. Prior to this judgement it was generally assumed that e-lending was not included in the scope of the rental right and lending right directive and as a result public libraries wishing to lend out e-books had to conclude licenses with publishers in order to do so.
Yesterday’s judgement came out of a reference to the CJEU in the context of proceedings brought by the Association of Dutch Public Libraries (VOB) which held the view that libraries are entitled to lend e-books included in their collections according to the principle “one copy one user”. This view was not shared by the Dutch government which has passed legislation based on the premises that the digital lending of electronic books does not come within the scope of the exception provided by the rental right and lending right directive.
The VOB wants libraries to allow users to download an electronic copy of a work included in the collection of a library while ensuring that – as long as that user can access that copy – it is not possible for other library users to download another copy. At the end of the e-lending period, the copy downloaded by the first user would become inaccessible, and as a result another lender can download a separate copy. Continue reading
The copyright reform proposal presented today by the European Commission fails to meet the needs of citizens, educators, and researchers across Europe. Instead of strengthening the information economy, the proposal preserves a status quo defined in the analog age. In the process, it hinders education, research and cultural expression.
European Commission lacks vision for copyright in the digital age
Today’s proposal buries the hope for a more modern, technologically neutral and flexible copyright framework that the Commission had hinted at in its initial plans for the Digital Single Market. The proposal largely ignores crucial changes to copyright that would have benefitted consumers, users, educators, startups, and cultural heritage institutions. It also abandons the idea of a digital single market that allows all Europeans the same rights to access knowledge and culture. Finally, it completely ignores the importance of protecting and expanding the public domain.
Copyright needs to evolve with technology. Instead of charting a course that can take Europe into the information economy of the future, the Commission has been busy rearranging the deck chairs on the Titanic.
Instead, the Commission’s proposal focuses on a wholly different goal: to minimize the impact of the fundamental changes brought about by digital technologies and the internet on legacy business models. Publishers get an ancillary copyright that already has proven itself worthless in practice. Access to most audio-visual content will continue to be hampered by geo-blocking (which the Commission had earlier committed to end), and online platforms might be forced to collaborate with rights holders on censoring content that is shared by users on these platforms. The whole package lacks forward-looking, innovation-friendly measures that embrace digitization as an opportunity for users, creators, businesses, and public institutions in Europe.
In doing this, the Commission abdicates its power to make the European future a better one. It is the future where the stakes are significantly higher than today’s market balance. Soon, the business models that the Commission is trying to protect will no longer be relevant. At stake is a future in which innovation-friendly Europe could have provided the best education for its citizens, drawn the best talent and investment options, and fostered the best research and job opportunities. Continue reading