The education exception was gutted during the Trilogues

A dragon devouring the companions of Cadmus
Article 4: attacked through the recitals
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When the European Commission proposed to grant the same minimum rights for digital educational activities in every EU Member State, we applauded the initiative. The proposal had flaws, but there was room for public discussion at the European Parliament, which could have led to an improvement of the proposal. Unfortunately, the improvements introduced by the Parliament were gutted during the trilogue debates, which were conducted behind closed doors.

Let’s recall the improvements introduced by the Parliament: (i) on the issue of licensing, where the EC proposed to allow the exception to be switched off if unilateral licensing offers were made available to schools, the EP suggested to give priority only to bilateral licensing agreements that the schools had agreed on; (ii) on the issue of beneficiaries, where the EC proposed to cover only the activities run by formal educational establishments, the EP suggested to include museums and other cultural heritage institutions as beneficiaries of the exception; (iii) on the issue of contractual overrides, where the EC had done nothing to protect the exception against contracts, the EP proposed to prevent contractual overrides of the education exception, and (iv) on the issue of technologies, where the EC proposed to make the exception function only on the school’s closed networks, the EP attempted to cover more means of communication by replacing the word “networks” with “environments”.

Unfortunately, the European Council did not engage in the same type of public discussions with regard to new European law proposals and, maybe because of that, it’s version of Article 4 did not include similar improvements. What is worse: it made the prospects of having an improved and harmonized landscape for educational activities in Europe even less likely.

For several months, the Commission, the Council and the Parliament discussed, behind closed doors, the fate of the new Directive, and as far as we are aware there was little interest in discussing the education exception because there were other pressing issues that required their attention. As a result, the positive amendments contained in the Parliament version were not retained in the Trilogues.

Below, we explain three negative changes made to the text of the educational exception in this final phase of the legislative process. Changes made without public consultation, transparency or due review of evidence. These include denying teachers the right to benefit from the exception when there are licenses available in the market for them to buy; excluding the educational programs run by museums and libraries from the scope of the exception; and allowing Member States to fragment the exception, by defining different proportions to which a work can be used.Continue reading

2019 will be a busy year for user rights’ advocates at WIPO

Public interest advocates at WIPO SCCR/38, Geneva, November 2018
We are ready for another year, fighting the good fight!
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In the age of connectivity, it is not enough to fight for better copyright laws for users in certain regions of the world. We need to advocate for baseline international standards that allow cross-border uses of copyrighted materials, for purposes such as access to knowledge and education, in each and every country of the world. That is why public interest advocates, Communia included, keep investing their energies in the international discussions on copyright exceptions, using their capacities of permanent observers of the WIPO’s Standing Committee on Copyright and Related Rights (SCCR).

The SCCR has a mandate to discuss, among other things, limitations and exceptions to copyright for libraries, museums, archives, persons with disabilities, and for educational and research activities. In June 2018, the Committee adopted Action Plans on Limitations and Exceptions, which include a series of events dedicated to analyze the situation of libraries, archives, museums, education and research, and to identify “areas for action with respect to the limitations and exceptions regime”. If planned correctly, with the main purpose to assess the needs of the potential beneficiaries of the exceptions, these events could advance the international agenda on copyright exceptions.

2019: regional seminars on copyright exceptions  

In order to fulfil the Action Plan on L&E, and in addition to the two bi-annual meetings (Geneva, 1-5 April and 21-25 October), the SCCR will host in 2019 a) three regional seminars on limitations and exceptions in Asia-Pacific (Singapore, 29-30 April, to be announced), Africa (Kenya, 12-13 June, TBA) and Latin-America (Dominican Republic, 4-5 July, TBA); and b) an international conference on exceptions and limitations (Geneva, 17-18 October). Continue reading

Article 13: the house is on fire!

Brand in de lijnbanen op de schans aan de Smallepadsgracht
Lawmakers struggle to contain Article 13
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Last week, the German Council delegation shared a “non-paper” with proposals to mitigate the negative effects of article 13, which screamed “Houston, we have a problem”. On Monday the Romanian Council Presidency shared a working paper on article 13 that makes similar attempts to reduce the negative impact of article 13. And yesterday the representatives of the audiovisual and publishing sectors called for the suspension of the negotiations on article 13. These moves show that (1) upload filters are gaining opponents (or losing supporters) at a fast pace and (2) lawmakers are starting to envision the social and political consequences of this ill-conceived law proposal.

The Romanian proposal attempts to save the sharing culture, but fails spectacularly

Ahead of the Council Copyright Attachés meeting that took place yesterday, the Romanian Council Presidency proposed a possible compromise solution on article 13 that 1) exempts platforms from liability in certain situations (e.g. if they made best efforts to obtain an authorization from the rightsholders) and 2) introduces a mandatory EU-wide user-generated content exception to copyright, which allows users to upload and make available content generated by themselves, but not by others. The Romanian compromise further suggests to continue to discuss if online platforms that are microenterprises and small-sized enterprises shall be exempted or not from the obligations imposed by article 13.

The fact that the compromise solution presented by the Romanian Presidency contains the introduction of a UGC exception shows the intention to make a positive contribution to the negotiations. However, the drafting is far from bringing a meaningful solution for users. To start, the proposed exception only allows the use of parts of works, making it impossible for users to share user-generated content containing an entire artwork (e.g. a meme using a painting in its entirety) or an entire short work (e.g. a meme using a poem in its entirety). Then, it only allows users to share content generated by themselves, and not by others! What is the point of sharing a meme on an online platform, if other users cannot interact with it, by sharing it too? Continue reading

Germany’s non-paper on art. 13 screams “Houston, we have a problem”

Nasa Apollo 13 Mission Control
There's no public support for Article 13
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This week Politico.eu has shared a “non-paper” prepared by the German Council delegation on article 13, ahead of the Council Copyright Attachés meeting that took place on Wednesday. In this paper Germany proposes to mitigate the negative effects of art. 13 by 1) exempting platforms with a turnover of up to 20 Mio. Euros per year from the obligations imposed by art. 13., 2) exempting platforms from liability in certain situations (e.g. if they made best efforts to obtain an authorization from the rightsholders), and 3) introducing a mandatory EU-wide user-generated content exception to copyright, subject to the payment of a fair remuneration to the rightsholders.

A Christmas tale

It is clear that there is a social legitimacy problem with a law proposal when, in every household visited during the Christmas holidays, someone starts talking about it. Children as young as eleven, teenagers and parents all knew about the existence of an infamous law proposal, which they referred to as “Article 13”. The familiarity with which they pronounced the number of the article was such that an undiscerning observer would believe they had been closely following the copyright reform and had actually read the European Commission’s proposal on upload filters.

Sure enough the children and the teenagers had not read the legal provision, neither had their parents. Their knowledge was based on the Youtube videos on art. 13 produced by their favourite Youtubers and/or on the newspaper articles that (finally) had started reporting on the issue, after those videos had become viral (one has now close to 5 million views).

This was the rule for every household, except one, where one of the parents – let’s call him a software and platforms entrepreneur – had not only read the proposal, but could easily point out the flaws on the lawmakers reasoning. Continue reading

Art 4/2 goes against CJEU landmark ruling on copyright exceptions

Untitled
Do not set a dangerous precedent for user rights!
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The Court of Justice of the European Union has not had many opportunities to review the EU legal framework for exceptions and limitations to copyright, and in the few cases where it had to interpret an EU exception, it has not always adopted positions that are favourable to the beneficiaries of the exceptions. Yet, there is one case, a landmark case for user rights, involving the Technical University of Darmstadt and publisher Eugen Ulmer KG, where the Court exemplary defended the position of such beneficiaries against the rights holders. Now the EU lawmakers want to adopt a law that fundamentally undermines the protection granted by that CJEU ruling to user rights.

How did the CJEU ruling protect user rights?

The TU Darmstadt case revolved around the EU exception that allows public libraries and other institutions to digitize works in their collections and make them available in dedicated terminals located in the libraries reading rooms or elsewhere on their premises (art.5(3)(n) of the InfoSoc Directive). The dispute had several legal issues, but the one important for the analysis of art 4, paragraph 2 of the proposed Directive for Copyright in the Digital Single Market (DSM Directive) is whether the libraries could rely on said exception even if publishers were offering to license a digital version of the books.

The EU exception embodied in art.5(3)(n) of the InfoSoc Directive covers “works and other subject-matter not subject to purchase or licensing terms”. Publishers argued that the mere fact that the rightholder offers to conclude a licensing agreement with a library is sufficient for ruling out the exception. The CJEU considered, however, that, if the mere act of offering to conclude a licensing agreement were sufficient to rule out the application of the exception, such interpretation would:

  1. Be difficult to reconcile with the aim of the exception, which is “to maintain a fair balance between the rights and interests of rightholders, on the one hand, and, on the other hand, users of protected works who wish to communicate them to the public for the purpose of research or private study undertaken by individual members of the public.”
  2. Imply that “the rightholder could, by means of a unilateral and essentially discretionary action, deny the establishment concerned the right to benefit from that limitation and thereby prevent it from realising its core mission and promoting the public interest”.
  3. Be “liable to negate much of the substance of the limitation provided for in that provision, or indeed its effectiveness”, since the limitation would apply only to those increasingly rare works of which an electronic version is not yet offered on the market.

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SCCR/37: Communia general statement on exceptions and limitations

Standing Committee on Copyright and Related Rights
Let us converge and harmonise laws
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In our capacity of permanent observers of the WIPO Standing Committee on Copyright and Related Rights, we are attending the 37th session of the Committee, which is taking place in Geneva from 26 to 30 November 2018.

The following is the general statement made by Teresa Nobre on Limitations and Exceptions (Agenda Items 6 and 7):

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SCCR/37: Communia statement on the protection of broadcasting organizations

A woman shouting into a man's ear-trumpet. Wood engraving.
No new rights without exceptions
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In our capacity of permanent observers of the WIPO Standing Committee on Copyright and Related Rights, we are attending the 37th session of the Committee, which is taking place in Geneva from 26 to 30 November 2018.

The following is the statement made by Teresa Nobre on our behalf on agenda item 5: Protection of Broadcasting Organizations.Continue reading

Communia endorses Treaty on Education and Research, and asks others to follow suit

Italian Landscape with Umbrella Pines
We can make education brighter
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Communia has endorsed the Civil Society Proposed Treaty on Copyright Exceptions and Limitations on Education and Research Activities (TERA), and asks others to follow suit, ahead of the 37th session of WIPO’s Standing Committee on Copyright and Related Rights (SCCR). SCCR/37 will take place from 26 – 30 November in Geneva, and civil society advocates will propose that the treaty’s provisions be considered as a model for future text-based work by the committee.

The proposed treaty is the result of an extensive consultation process with various stakeholders (including Communia), which culminated with its adoption at the 5th Global Congress on Intellectual Property and the Public Interest on September 27, 2018. Institutions and individuals are both welcome to endorse the treaty.

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yes. i am lonesome tonight.

Screenshot of video Licentie

yes. i am lonesome tonight. is a video by visual artist and performer Daniel Pinheiro, and probably one of the most intelligent uses of a pre-existing work that you’ll see on social media platforms today and tomorrow. Not the day after, because copyright infringement will soon prompt its removal.

You see, some of the works created by Daniel Pinheiro rely heavily on copyrighted works that do not belong to him. yes. i am lonesome tonight. consists of a black screen in which the words “yes”, “i did”, “i’m sorry” and “i didn’t” appear as answers to the questions posed by Elvis Presley in the song “Are you lonesome tonight”, composed by Lou Handman and Roy Turk. Elvis sings “Are you lonesome tonight” and Daniel whispers “Yes”. And so it goes:

Do you miss me tonight?

Yes.

Are you sorry we drifted apart?

Yes.

Could fair use save the lonely artist?

Daniel’s intervention is minimal, from a quantitative point of view, and he uses the source work in its entirety, which would weigh against fair use, in countries where fair use exists. Yet I doubt any art curator or critic would not render it as a new and unexpected use of Elvis’ musical performance. In other words, the transformative character of yes. i am lonesome tonight. could perhaps be enough to consider this Visual-Art work a fair use, even when all the remaining statutory factors (such as the amount of the source work used) would traditionally weigh against fair use. Continue reading

SCCR/36: Communia statement on educational and research exceptions

Karikatuur van Franse censoren
Action plans have to bring evidence to the table
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In our capacity of permanent observers of the WIPO Standing Committee on Copyright and Related Rights, we have been attending the 36th session of the Committee, which is taking place in Geneva from 28 May to 1 June 2018.

The following is the statement made by Teresa Nobre on our behalf on agenda item 7 (Limitations and exceptions for educational and research institutions and for persons with other disabilities):

I’m speaking on behalf of COMMUNIA International Association on the Digital Public Domain.

We would like to start by thanking all the delegates for demonstrating their support for education throughout this SCCR. We would also like to thank the Chair for preparing the Draft Action Plan, and we have 2 suggestions to make regarding the planned actions.

The first is on the typology. We welcome the Chair’s proposal to synthesize, organise and classify the information contained in the study performed by Prof. Seng, and we would be pleased to offer our advice to the Chair in the development of the proposed typology.

At COMMUNIA we have been mapping educational exceptions for several years now, and we have created a template that breaks down the different provisions into their essential elements (users, uses, purposes, works, conditions and preclusions) and shows simple yes/no or 0/1 results, which permit a quick understanding of their differences and similarities. This template was recently updated, in collaboration with PIJIP, to reflect the different provisions analysed by Prof. Seng and could, therefore, be a good reference to the Chair.

The second suggestion regards the study on digital issues. We believe that such a study is only useful if it brings evidence regarding the gags, legal uncertainties and obstacles that may inhibit the development of digital education and research.

For that, the methodology has to go beyond policy and legal analysis. Interviews and surveys involving educators, learners and researchers are essential. Here are a few topics that we would suggest to be included in such study:

  • Digital actions carried out by the education and research communities on a regular basis;
  • Types of tools, devices and works used for educational and research purposes;
  • Restrictions encountered by these stakeholders in relation to different types of digital materials;
  • Mechanisms to ensure functioning of exceptions and limitations regarding TPM-protected works;
  • Obstacles and uncertainties faced by these stakeholders; and
  • Cross-border related problems encountered by these stakeholders.

Thank you.