Video Recording of COMMUNIA Salon on the role of ex-ante user rights safeguards in implementing Article 17

Yesterday, we held the first 2021 edition of our COMMUNIA Salon. This virtual edition focused on the role of ex-ante user rights safeguards in implementing Article 17. This is certainly the most controversial question that has arisen during the national discussions of the implementation of Article 17, and one that will likely be discussed long after the deadline for implementing the new Copyright Directive is over. During the event we heard the Commission’s views on the topic, recollected the legislative history of Article 17(7), and learned about two implementation proposals that are currently being discussed in Germany and Finland. If you have missed the event you can watch a recording of the presentations and the subsequent discussion here: 

The event was kicked off by Marco Giorello (Head of Copyright Unit, European Commission), who started by recalling that the main objective of Article 17 is to foster the conclusion of licensing agreements between rightholders and online platforms, and not to provide an enforcement tool to rightholders against illegal content. He then summarized the Commission’s views on the practical application of Article 17(7), clarifying that this provision requires online platforms to consider legitimate uses ex-ante and that it is not enough for Member States to give flesh to user rights by simply relying on ex-post redress and complaint mechanisms. He further acknowledged the struggles in finding a solution to implement Article 17 in a balanced way, pointing out that this is probably the first time that the EU lawmakers are trying to find a way to respect fundamental rights in a machine-to-machine environment.

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Copyright and COVID-19: Has WIPO learned nothing from the pandemic?

Vechtende boeren
It's time to put our differences aside
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In November, Communia participated in the World Intellectual Property Organization’s (WIPO) 40th session of the Standing Committee on Copyright and Related Rights (SCCR), the most important forum at the global level for copyright rulemaking. Due to the pandemic, this was the first time the Committee met this year, and the meeting took place in a hybrid format, with most of the delegations participating through online means. 

Our expectations for this meeting were high. The COVID-19 pandemic has shown, more clearly than ever, that copyright can stand in the way of schools, libraries and cultural heritage institutions properly operating. Copyright exceptions that permit these public interest activities still do not exist everywhere. Moreover, exceptions do not always apply regardless of whether activities are conducted on site or at a distance (digitally).

Communia and other civil society observers were expecting the Committee to consider the impact that the COVID-19 pandemic has had on these public interest activities, and take appropriate action. However, WIPO member states had previously decided that, due to the format of the meeting, they would not engage in negotiations on any of the items on their agenda. Therefore, despite references to the problems caused by the pandemic in several Delegations’ statements, none put forward any proposal to deal with these issues.

Exceptions and limitations: shouldn’t we be there yet?

As explained in Communia’s statement to the Committee and highlighted by numerous WIPO-commissioned studies, WIPO member states are well aware that exceptions (notably the education and research exceptions) that exist today do not always have the elasticity to cover activities that take place remotely. More importantly, WIPO member states know that only an international instrument can solve the cross border aspects of distance activities, when the application of multiple national laws is triggered.

Progress on the topic of copyright exceptions has been limited for a number of years now. The only notable exception has been the Marrakesh Treaty, which establishes a mandatory exception for the benefit of persons who are blind, visually or otherwise print-disabled. Discussions on an international legal framework to cover a minimum set of legitimate uses made by persons with other disabilities, by educators, learners and researchers, and by libraries, archives and museums, have been diverted time and time again. 

With the pandemic, this state of affairs is even less acceptable than it was before. Before we were already seeing a trend towards digital and cross-border access and use of copyrighted materials for educational, research and other public interest purposes. Yet, WIPO member states could justify their inaction by telling themselves that these uses were not significant. 

However, in a few months, distance activities became the new normal. Now, institutions all over the world are opting for remote formats or hybrid models of in-person and online education, research and access to the collections of cultural heritage institutions. And we may never go back to the way things were before.Continue reading

SCCR/40: Communia Statement on Limitations and Exceptions

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15 years and a pandemic later: are we there yet?
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In our capacity of permanent observers of the WIPO Standing Committee on Copyright and Related Rights (SCCR), we are attending the 40th session of the Committee, which is taking place in a hybrid format of in-person and online participation from 16 to 20 November 2020.

The following is the statement made on behalf of Communia on limitations and exceptions for educational and research institutions and for persons with other disabilities (Agenda Item 7):

This Committee has been discussing the issue of copyright exceptions for almost 15 years. During this time, a number of studies were conducted and we learned that many countries fail to guarantee the right to use protected content for education, research and other legitimate purposes.

Still, reaching a common ground for exceptions was not a priority for all. Progress was limited even though we were seeing a clear trend towards cross-border uses, taking place online. 

Now, that state of affairs could be acceptable before the massive disruption to society caused by the COVID-19 pandemic. But over the last six months those cross-border online uses have become the new normal. 

All over the world, institutions are opting for remote formats or hybrid models of in-person and online access and use of content. And we may never go back to the way things were, namely for education, where we now have teachers and students working from home, often located in different Member States, and having to deal with a fragmented treatment of exceptions across those locations.

We understand that Northern countries prefer to negotiate bilaterally with developing countries. In our opinion, this perpetuates an unbalanced power relationship between the Global North and the Global South.

This forum can provide more transparency and legitimacy to these discussions. We thus urge you to not leave your mandate unfulfilled. 

In the Report on Regional Seminars and International Conference on Limitations and Exceptions, prepared by the Secretariat, we can find something for everyone’s taste. Now it’s up to this Committee to set priorities for its work. 

We urge the Committee to respond to the pandemic with a declaration or resolution to assert the flexibilities that exist; then work on model laws and on a binding solution for cross-border uses; and eventually discuss a minimum set of mandatory exceptions.

Thank you.

SCCR/40: Communia Statement on the Protection of Broadcasting Organizations

Parisiens en train d'etudier la question turque
No perpetual rights, no rights without exceptions!
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In our capacity of permanent observers of the WIPO Standing Committee on Copyright and Related Rights (SCCR), we are attending the 40th session of the Committee, which is taking place in a hybrid format of in-person and online participation from 16 to 20 November 2020.

The following is the statement made on behalf of Communia on the protection of broadcasting organizations (Agenda Item 5):

We understand that the draft of the Broadcasting Treaty gives broadcasters perpetual rights over public domain and freely licensed content, which is extremely problematic for users. 

Without this extra layer of rights, these works can be used without restriction, and this freedom should be maintained. 

In addition, we are concerned that the current proposal for exceptions only gives countries the option to extend already existing exceptions to broadcasting signals. Obviously, countries can choose not to exercise that option, and if they opt not to, the Treaty will be creating new obstacles to access to culture and information. 

Exceptions are essential to achieve a balance between the interests of the broadcasting organizations and the public interest. The vision that supra-national instruments should only mandate the introduction of new rights, without imposing adequate exceptions, is outdated and turns a blind eye to the fact that copyright can prevent the exercise of fundamental freedoms. 

It is about time for this Committee to align itself with the knowledge produced by its academics and by its courts, which have over and over again referred to the need for a balanced view of copyright.

The Treaty should include a broad provision like the one contained in the Regional Comprehensive Economic Partnership Agreement, which makes it mandatory for each Party to provide an appropriate balance in its copyright system, including by means of exceptions for legitimate purposes. In addition, it should have a minimum set of mandatory exceptions, namely for the uses already required by other copyright treaties.

Thank you.

Blocking Wikimedia from becoming a WIPO observer is unacceptable

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All legitimate observers should be approved
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This week, the member states of the World Intellectual Property Organization (WIPO) postponed a decision on the Wikimedia Foundation’s application to become an official observer of this organization. China raised concerns, at 61st series of meetings of the Assemblies of WIPO Member States, that the Wikimedia Foundation “has been carrying out political activities through its member organizations which could undermine the state’s sovereignty and territorial integrity.” The Wikimedia Foundation would need to provide further clarifications about the volunteer-led Wikimedia Taiwan chapter and about Wikimedia’s “Taiwan-related positions.” Discussion will resume at an extraordinary session of the General Assembly in early 2021.

This decision came as a shock to many observers of WIPO, since there has only been one case in recent memory where an observer status application to WIPO has not been accepted. In 2014, the Pirate Party International was rejected due to being a federation of political parties. As highlighted by the United States in its statement in support of Wikimedia Foundation’s application, “allowing the Wikimedia foundation to participate as an observer would be entirely consistent with the established precedent at WIPO of supporting other existing observers and Member States that also have some affiliation with Taiwan.”

According to Amanda Keton, General Counsel of the Wikimedia Foundation,

“(t)he objection by the Chinese delegation limits Wikimedia’s ability to engage with WIPO and interferes with the Foundation’s mission to strengthen access to free knowledge everywhere.”

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The German Model to Protect User Rights when implementing Article 17

Rechtvaardigheid (Justitia)
Finding balance with exceptions, pre-flagging and abuse sanctioning
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Last week, Germany’s Ministry of Justice unveiled its proposal to implement Article 17 of the new Copyright Directive. In this post, we will look into the draft implementation in more detail, to understand how this proposal aims to protect user rights by:

  • Making it easier for platforms to comply with the “best efforts” obligation to obtain authorization to publish their users’ uploads;
  • Introducing a new exception covering minor uses of copyrighted content, which works as a fallback mechanism in the absence of authorization;
  • Allowing users to override blocking/removal actions, by pre-flagging lawful uses;
  • Allowing lawful content to stay up until human review and pausing the liability of platforms until a decision has been made;
  • Sanctioning abusive behaviour by platforms, rightholders and users.

Complying with the “best efforts” obligation to obtain authorization

Under Article 17, platforms are deemed to carry out a copyright-restricted act when they give public access to copyrighted content uploaded by their users and, as a consequence, they must make “best efforts” to obtain an authorization to perform such acts. That authorization can hypothetically be granted through various means:

  • directly by the copyright owners via individual licensing agreements (as mentioned in Article 17(1) second para.,) or
  • by collective management organizations via collective license agreements, or
  • by operation of law, if the national lawmakers decide e.g. to turn this exclusive right into an exception or limitation to copyright subject to compensation.

The implementation proposals that we have seen so far in other countries have limited themselves to the traditional individual licensing mechanism. This is of course problematic because individual licenses alone cannot cover the countless protected materials in existence and user rights will be at greater risk if the platforms have to block content at upload than if they obtain authorization to have that content uploaded to their platforms.

Germany had stated, when the Directive was approved, that it would explore further legal mechanisms (e.g. exceptions and limitations and collective licenses) to grant those permissions to platforms. The draft text now published delivers on those promises and introduces some welcoming innovation.

The proposed text starts by saying that the platforms need to make “alle Anstrengungen” (“every effort”) to acquire those rights by contract. The use of the wording “every effort” shall not, however, be interpreted as meaning anything else other than “best efforts”, according to the explanatory memorandum. In fact such obligation is considered to be fulfilled when the platform accepts a licensing offer made by a rightholder or when licenses are available through a domestic collective management organization (§4/1). Such contractual offers or collective licenses must apply to works typically uploaded to the platform, comprise a representative repertoire, cover the territory of Germany, and enable the use on appropriate conditions (§4/2).

A new de minimis exception that applies to the acts of platforms and noncommercial users

When, despite making the above-mentioned effort, the platform was not able to obtain an authorization, the draft text provides a fallback mechanism: it partially turns the new exclusive right into a remunerated exception, which covers minor uses of copyrighted content (§6 and §7/2). Continue reading

Our DSM Directive Implementation Tracker is out

The finish in the great match race [...] at Sheepshead Bay, N.Y., June 25th, 1890 between Salvator and Tenny / L.M.Licentie

Today we are launching our new DSM Directive Implementation Tracker.

These tracking pages aim to provide information on the status of the implementation of the new Copyright Directive in all EU Member States. The information contained in each country page was collected by local organisations and individuals in each country and/or from public sources.

This tracker is part of a wider implementation project of COMMUNIA and its members Centrum Cyfrowe and Wikimedia, which includes a range of activities (including our DSM Directive Implementation Guidelines) to make sure that local communities in as many Member States as possible are aware of their national legislative processes and participate in those processes.  

What is the current status of the implementation?

One year after the entry into force of the DSM Directive, the implementation picture is very varied. So far only one member state (France) has adopted one element of the Directive (the new press publishers right) into national law.

There are currently two member states with implementation law proposals tabled in their national parliaments. In France a proposal implementing articles 17 – 22 of the Directive has cleared committee and is awaiting first reading in plenary. In the Netherlands a proposal implementing the entire Directive has just been introduced into parliament and is awaiting reading in the legal affairs committee.Continue reading

New policy paper on fundamental rights as a limit to copyright during emergencies

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Adjusting essential uses to new modes of living
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Today, Communia released a policy paper on fundamental rights as a limit to copyright during emergencies. This policy paper has been prepared in the context of the COVID-19 pandemic, which has caused a massive disruption of the normal organization of society in many EU countries. 

In our paper we defend that, in order to transpose education, research and other public interest activities from public locations to private homes during government-imposed lockdowns, we need to be able to rely on the understanding that fundamental rights can, in exceptional situations, function as an external limit to our national copyright systems.

The main conclusions of our paper are the following:

First Conclusion

The educational and research exceptions and limitations provided for in Article 5(3)(a) of the InfoSoc Directive and in Articles 6(2)(b) and 9(b) of the Database Directive, and the public lending exception provided for in Article 6(1) of the EU Rental and Lending Rights Directive are mandatory for Member States, due to the fundamental rights that they internalize, namely those enshrined in Articles 11(1), 13 and 14(1) of the EU Charter of Fundamental Rights.Continue reading

Open Letter to WIPO: Intellectual Property and COVID-19

De briefschrijfster
Public interest must prevail at time of crisis
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Today, Communia and a group of over 140 other organisations and individuals sent a letter to Director General of the World Intellectual Property Organization (WIPO) Francis Gurry, asking WIPO to ensure that intellectual property regimes support, and do not impede, efforts to both fighting the new Coronavirus outbreak and its consequences.

This diverse group representing researchers, educators, students, and the institutions that support them, acknowledges that a number of countries and some right holders have adopted exemplary measures in this context. These include measures to facilitate access to academic articles, research data, educational materials and other protected works, as well as medicines and medical devices that are subject to exclusive rights.

However, the signatories of the letter also believe that those measures alone are not enough, and that more actions are needed to ensure that the global intellectual property system prioritizes and promotes vital public interests at this critical moment.

Therefore, the signatories urge Mr. Gurry to use his position to guide the member states of WIPO and others in their response to intellectual property issues that the COVID-19 pandemic is raising, namely:

  • Encouraging all WIPO member states to take advantage of flexibilities in the international system that permit uses of intellectual property-protected works for online education, for research and experimental uses, and for vital public interests, such as access to medicine and culture;
  • Calling on all right holders to remove licensing restrictions that inhibit remote education, research (including for text and data mining and artificial intelligence projects) and access to culture, including across borders, both to help address the global pandemic, and in order to minimise the disruption caused by it;
  • Supporting the call by Costa Rica for the World Health Organization to create a global pool of rights in COVID-19 related technology and data, as well as promoting the use of the Medicines Patents Pool, voluntary licensing, intellectual property pledges, compulsory licensing, use of competition laws, and other measures to eliminate barriers to the competitive global manufacture, distribution and sale of potentially effective products to detect, prevent, and treat COVID-19.
  • Supporting countries’ rights to enact and use exceptions to trade secret and other intellectual property rights needed to facilitate greater access to manufacturing information, cell lines, confidential business information, data, software, product blueprints, manufacturing processes, and other subject matter needed to achieve universal and equitable access to COVID-19 medicines and medical technologies as soon as reasonably possible.

You can read the full letter here (PDF). You are welcome to endorse the letter here.

Update 7 April: the letter has been endorsed by more than 400 organisations and individuals in 45 countries. You can see the full list of signatories here.

Update 16 April: the letter has been endorsed by 149 organizations and 359 individuals. The listed organizations represent more than 32.5 million educators, 2.5 million libraries and archives, 45,000 museums, and 200 copyright scholars in 199 countries.

What we hope for WIPO under new leadership: neutrality, fairness, and transparency

Effata Regum Poloniae usque ad Ioannem Casimirum [...]
Improve the quality of policy making at WIPO
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Last week, the World Intellectual Property Organization (WIPO) nominated a new Director General, Daren Tang, who will assume the post on 1 October 2020. Tang is currently the Chief Executive of the Intellectual Property Office of Singapore and has served as the Chair of WIPO’s Standing Committee on Copyright and Related Rights (SCCR) for the past six bi-annual meetings of the committee. 

A growing number of civil society organizations working on copyright reform, including Communia and its members Wikimedia and Creative Commons, participate as permanent observers in the SCCR, for the committee addresses several important issues in the field of copyright. This includes a potential new treaty for the protection of broadcasting organizations; exceptions and limitations to copyright for libraries, museums, archives, educational and research institutions, and persons with other disabilities; and the broader topic of copyright and the changing digital environment. 

WIPO has the potential to affect norm setting in a variety of topics in the field of copyright, not only those currently discussed in the SCCR, but also others that WIPO may introduce via its training and capacity-building activities. In fact, although WIPO is a member state-driven institution and only its 192 country members can decide on the adoption of binding legal instruments or soft laws, the Director General and his senior management team can influence the direction of national law and policy reforms in developing countries through the organization’s technical assistance program.

The impact of the WIPO Secretariat on the work of the copyright committee

The WIPO Secretariat also has a significant impact on the work of the SCCR. In the past year, we have witnessed that it is fairly easy to prejudge the outcomes of an Action Plan on Limitations and Exceptions adopted by the WIPO member states if the WIPO Secretariat carries out the activities foreseen in such a plan in a manner that puts an over-emphasis on the private interests of copyright owners to the detriment of the public interests related with access to knowledge and education. 

Regional events intended to identify “areas for action with respect to the limitations and exceptions regime” can easily be turned into lobbying platforms for copyright owners, if ill-designed. Would-be beneficiaries of the limitations and exceptions regime can easily be prevented from sharing their experiences in such events in a structured manner, if no formal speaking roles are given to them. Furthermore, an international conference intended to discuss limitations and exceptions for cultural heritage and educational and research institutions can be organized in such a manner that the panels are dominated by rights holders and collective management organizations, preventing a fair and balanced discussion on the issues at hand. Continue reading