Last week, we launched our Guidelines for the Implementation of the DSM Directive. This is part of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the mandatory provision in the new Copyright Directive that ensures that faithful reproductions of public domain works of visual art cannot be subject to exclusive rights.
Last week, we launched our Guidelines for the Implementation of the DSM Directive. This is part of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the mandatory provisions in the new Copyright Directive that allow cultural heritage institutions to digitise and make out of commerce works in their collections available online.
This week, we launched our Guidelines for the Implementation of the DSM Directive. This is part of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the mandatory provisions in the new Copyright Directive that prevent contractual and technological overriding of some of the new copyright exceptions.
This week, we launched our Guidelines for the Implementation of the DSM Directive. This is part of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the mandatory exception for preservation of cultural heritage contained in the new Copyright Directive.
This week, we launched our Guidelines for the Implementation of the DSM Directive. This is part of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the mandatory exception for digital and cross-border education contained in the new Copyright Directive.
Yesterday, we launched our Guidelines for the Implementation of the DSM Directive. This is the first of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the two mandatory exceptions for text and data mining contained in the new Copyright Directive.
In our capacity of permanent observers of the WIPO Standing Committee on Copyright and Related Rights (SCCR), we are attending the 38th session of the Committee, which is taking place in Geneva from 1 to 5 April 2019.
The following is the general statement made today by Teresa Nobre on Limitations and Exceptions (Agenda Items 7 and 8):
I’m speaking on behalf of COMMUNIA, an international association that works to protect and strengthen the public domain and users’ rights.
We believe that there is a minimum set of access and use rights that should be defined by public rules, since they are justified by public interests. If copyright laws do not grant to the education and research communities, the cultural heritage institutions, and the persons with disabilities the same level of protection that is granted to rightsholders, and defer to private agreements the regulation of all uses of copyrighted materials, they perpetuate an unbalanced power structure and let rightsholders weaken or undermine what should be a public policy decision.
Private agreements are important in any market, but they should coexist with – and not replace – exceptions. Agreements are not appropriate to harmonize the legal framework for uses of copyrighted works, because the terms and conditions of licenses vary widely, and they are not available for every material in every country. There are countless copyrighted works in existence and the large majority of creators is not interested in licensing their works (only a small class of professional creators is offering their works for licensing). Thus, it is impossible to offer meaningful solutions to users through private agreements only.
In order to have a minimum set of rules that are applied uniformly by every Member State and have a cross-border effect we need an international law.
The ongoing reform in the European Union should be enough for this forum to understand that agreeing on minimum standards is possible, while still taking into account local specificities.
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
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
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