Victory for internet users as European Parliament snubs Voss’ copyright mandate

European Parliament (before the internet)
Users’ voices finally heard
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Yesterday the European Parliament stopped in its tracks the problematic copyright proposal put forth by the Legal Affairs committee based on the EC proposal, and voted to open up debate on the directive to the full Parliament. It’s a remarkable win for everyone advocating for progressive copyright reform in Europe.

MEPs voted 318-278 to deny JURI’s request to enter into direct negotiations with the EU Member States and the European Commission, which would have finalised the directive behind closed doors. Instead, yesterday’s Parliament vote will permit all 751 MEPs to table amendments to improve the copyright proposal, beginning in early September.

The vote unfolded on the heels of a massive outpouring of support from nearly a million people calling for a better copyright reform that upholds freedom of expression and users rights, and doesn’t simply capitulate to the demands of a small cohort of corporate rights holders pushing for Article 13 and Article 11.

The outcome rejects the binary rhetoric (and sometimes outright lies) spread by some MEPs and incumbent rights holders that the fight around Article 13 is simply a fight between Big Content and Big Tech. By denying JURI’s fast track on its committee proposal, the Parliament clearly has recognised the importance of many other stakeholders in the debate around the copyright reform, including the rights of users and the public.

MEP and IMCO Vice-chair Catherine Stihler said it best:

There are real concerns about the effect of Article 13 on freedom of expression, raised by experts ranging from the UN special rapporteur David Kaye to the inventor of the World Wide Web, Sir Tim Berners-Lee.

And there are real concern voiced by our citizens. Just yesterday I received a petition signed by almost a million people against the JURI committee mandate.

And although there is consensus about the goals behind this law, huge controversy still exists about the methods proposed. Something’s not right here. We owe it to the experts, stakeholders and citizens to give this directive the full debate necessary to achieve broad support.

Yesterday we won, but the fight is far from over. Now that the full Parliament will get an opportunity to suggest improvements to the copyright proposal, we need to redouble our efforts to fix the most egregious parts of the directive, including the harmful link tax and upload filters. But we can also resurface several other proposed changes for which we’ve been advocating, including important edits to improve Article 4 (education exception), Article 3 (text and data mining exception), and other provisions.

Thank you to the countless individuals, civil society groups, academics, libraries, creators, digital rights organisations, and others who have shown incredible support and resilience in fighting for a balanced copyright proposal. The work to #SaveYourInternet continues, and we’ll be there.

104 Members of Parliament agree: It’s time to dump the #LinkTax

Karikatuur van Franse censoren
No unnecessary rights for press publishers!
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In an incredible show of political support for a more reasonable copyright law, today 104 members of the European Parliament sent a letter to Rapporteur Voss asking him to delete the harmful press publishers right—Article 11. The signatories include MEPs from across the political spectrum. Signatories of the letter state that:

While we support efforts to ensure a level playing field between online platforms and businesses through the enforcement of competition and consumer rules, we believe that the introduction of a new European neighbouring right will have a nocent and injurious effect on citizens’ access to quality news and information.

Ever since the Commission released its original proposal for a Directive on Copyright in the Digital Single Market, we’ve been arguing that introducing a new ancillary right for press publishers is a terrible idea. We’ve advocated that the press publishers right should be removed from the proposed directive. Not only is the mechanism ill-suited to address the challenges in supporting quality journalism, it would have the effect of decreasing competition and innovation in the delivery of news, limit access to information, and create widespread negative repercussions for related stakeholders.

As already shown by example in Germany and Spain, a press publishers right will be completely ineffective in promoting quality journalism or getting reporters and authors paid, and it will have massive negative repercussions on access to information for everyone online.

We are not alone. A variety of groups have long warned about the dangers of adopting the press publishers right, including 169 academics, 25 European research centres, 145 civil society organisations, 9 news agencies, and publishers themselves. Continue reading

Database Directive Study: Options for Neutralising the Sui Generis Right

Tuin met parterre met labyrint en op de achtergrond een poort
Finally a way out of the database rights maze?
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A few weeks ago the European Commission published a study on the ongoing evaluation of the Database Directive. The report was led by the Joint Institute for Innovation Policy, and contains an analysis of last year’s public consultation, as well as information from expert interviews and a stakeholders’ workshop.

The Commission’s evaluation study confirms some of our suspicions that the sui generis right is doing little to increase the production of databases in the EU. The report notes, “the effectiveness of the sui generis right, as a means to stimulate investment on databases, remains unproven and still highly contested” (p. ii). Perhaps not surprisingly, the report shows a split between the views of database producers and users. Whereas users argue that the confusion and overall ineffectiveness of the sui generis right means it should be repealed, some database makers take the opposite view, claiming that the sui generis right “is an effective means to protect databases which is often used alongside other means of protection, such as contractual terms, copyright and technological measures” (p. ii).

The evaluation of the Database Directive

To recap the issue, the study is about Directive 96/9/EC on the legal protection of databases (Database Directive). The Directive came into force on 27 March 1996. It attempted to harmonise the copyright rules that applied to original databases, and also created a new sui generis right to protect non-original databases on which major investments have been made by database makers.

Last year the Commission launched a public consultation on the application and impact of the Database Directive. Communia responded to the consultation, and published a policy paper with recommendations for the future of the Database Directive. We argued that even though the Directive has successfully harmonised the legal protection of databases with regard to copyright, there is no clear evidence that the sui generis right has improved the interests of businesses or improved EU competitiveness by increasing the production of databases. And the introduction of the sui generis right has increased the complexity and confusion for database producers as well as users.

Our recommendations included the following:

  • repeal the sui generis database right;
  • harmonize the limitations and exceptions provided in the Database Directive with the Infosoc Directive and make them mandatory;
  • if it is not possible to fully revoke the sui generis right, the Commission should amend the Database Directive to introduce a system whereby producers of databases must register to receive protection under the sui generis right; and
  • set a maximum term so that there cannot be perpetual extensions of database protection.

Continue reading

145 Organisations Tell Member State Ambassadors: There’s Still Much To Fix on EU Copyright Reform

135COREPER
The legislation is destined to become a nightmare
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Today, Communia and 145 organisations published an open letter to the Committee of the Permanent Representatives of the Governments of the Member States to the European Union (COREPER). That group meets tomorrow, and the Bulgarian presidency will be pushing for all Member States to endorse its proposed changes to the draft Directive on Copyright in the Digital Single Market. Earlier this week we previewed these latest changes, warning that there’s danger ahead if the Council adopts the still-unsatisfactory updates to Article 13, 11, and 3a.

The letter is critical of the compromised proposed by the Bulgarian Presidency and calls upon COREPER to continue the discussions on the copyright reform. We ask for COREPER not grant the Bulgarian Council Presidency a mandate to negotiate with the European Parliament. From the letter:

We are deeply concerned that the text proposed by the Bulgarian Presidency in no way reflects a balanced compromise, whether on substance or from the perspective of the many legitimate concerns that have been raised. Instead, it represents a major threat to the freedoms of European citizens and businesses and promises to severely harm Europe’s openness, competitiveness, innovation, science, research and
Education. […]

With so many legal uncertainties and collateral damages still present, this legislation is currently destined to become nightmare when it will have to be transposed into national legislation and face the test of its legality in terms of the Charter of Fundamental Rights and the Bern Convention. We hence strongly encourage you to adopt a decision-making process that is evidence based, focussed on producing copyright rules that are fit for purpose and on avoiding unintended, damaging side effects.

The signatories of the letter include national organisations from across 25 EU Member States, representing human and digital rights groups, media freedom orgs, publishers, journalists, libraries, scientific and research institutions, educational institutions including universities, creator representatives, consumers, software developers, start-ups, technology businesses, and internet service providers. They repeat and amplify the voices raised previously to express their deep concerns about the artificial sense of urgency created by the Bulgarian Presidency.

(This week, two other important open letters were published: 169 professors of law and academics urge to oppose the new press publishers right. 55 European organizations do the same: “Enough is enough”).

Proposed Council compromise on TDM: still not good enough

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The right to read must be the right to mine!
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We’ve already written about how the Bulgarian compromise proposal for both Article 13 and Article 11 are too broken to fix. Their proposal for Article 3 (Text and Data Mining) does little to alter the major problems standing in the way of a progressive exception for text and data mining.

We’ve continued to follow Article 3 since the European Commission published its proposal on copyright in the Digital Single Market. Even though the Commission’s exception for TDM would be mandatory, we criticised their plan as not going far enough, as it would limit the beneficiaries of the exception only to research organisations, and only for purposes of scientific research.

TDM in the Bulgarian presidency proposal

The Bulgarian proposal is nearly identical to the changes already offered by the earlier Estonian plan. It leaves intact the Commission’s obligatory TDM exception that would apply to research organisations (including cultural heritage institutions) for purposes of scientific research. The Bulgarian proposal similarly introduces an additional and optional exception in Article 3 for temporary reproductions and extractions. This additional exception would apply to beneficiaries other than research organisations, and for uses other than scientific research. But those acts would be limited in that they only would cover temporary reproductions and extractions, and only if the rightsholder does not prohibit it.

In our earlier blog post we wondered whether the existing (and mandatory) exception in the InfoSoc and Database Directives on temporary reproductions arguably already covers the temporary reproductions for text and data mining purposes. In any case, this additional and merely optional exception, for acts that might already be covered under existing law, which can easily be neutralised if rights holders don’t want it, is a weak compromise. It doesn’t address the main concerns we’ve had with Article 3 since the beginning. It also fails to bring much needed harmonization and will instead further the already existing fragmentation of users rights in EU. Continue reading

MEP Voss doubles down on worst elements of Article 11

Karikatuur van Franse censoren
New right threatens free access to information
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We just got done criticising how Bulgaria’s weak consolidated presidency compromise handles Article 11 of the proposed Copyright in the Digital Single Market (DSM) directive. The Bulgarian plan doubles down on the Commission’s original bad idea and ignores most of the positive protections offered by some members of parliament.

But we shouldn’t have been surprised when MEP Axel Voss came out with an even worse plan for the press publishers right. This week 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.

Expanding the scope to cover facts

First, Voss proposes to expand the scope of beneficiaries of Article 11 from to cover not only press publishers, but also news agencies (who aggressively lobbied for being included in the scope of Article 11 late last year). But in doing so, he introduces the risk of inappropriately granting copyright – like protection to facts and compilations of basic information. This is a dangerous extension of the scope of exclusive rights that would endanger the right of access to information. It is especially appalling since even the founders of the “modern” European copyright system wisely choose to make sure that news of the day and facts cannot be exclusively claimed: The 1986 Berne convention explicitly states that copyright shall “not apply to news of the day or to miscellaneous facts having the character of mere items of press information”.

Mandatory remuneration

Perhaps the most extreme change is that press publishers and news agencies would be granted (or saddled with?) an “inalienable right to obtain an fair and proportionate remuneration for such uses.” What does this mean? It means that publishers would be required to demand payment from news aggregators and other users. Continue reading

Article 11: still too broken to fix

Parisiens en train d'etudier la question turque
More rights won't save quality journalism
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This week the Bulgarian presidency released their consolidated presidency compromise proposal for a directive on copyright in the digital single market. Instead of taking a proactive approach to fix some of the worst elements of the Commission’s beleaguered proposal, their plan backtracks on many of the most controversial aspects, which only seems to throw the public further under the proverbial bus. As we discussed recently, Article 13 is beyond repair and should be deleted.

The same goes with Article 11— the provision that would create new rights in press publications and allow press publishers to control digital uses of even the smallest snippets of their content. We’ve advocated that the press publishers right should be removed from the proposed directive. Not only is the mechanism ill-suited to address the challenges in supporting quality journalism, it would have the effect of decreasing competition and innovation in the delivery of news, limit access to information, and create widespread negative repercussions for related stakeholders.

Instead, the Bulgarian “compromise” doubles down on the Commission’s original idea and ignoring most of the positive protections offered by some members of Parliament and the earlier Estonian draft. Continue reading

Transparency and the ongoing hypocrisy around “evidence-based” policymaking

Man bekijkt een schilderij door een vergrootglas, Honoré Daumier, 1847
Policymakers should back up rhetoric with action
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We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation.

Today’s topic for Copyright Week is Transparency: Whether in the form of laws, international agreements, or website terms and standards, copyright policy should be made through a participatory, democratic, and transparent process.

For Copyright Week last year we wrote about transparency and representation in relation to the public consultations leading up to the European Commission’s release of their new Directive on copyright in the Digital Single Market. Our headline read, “Evidence-based copyright policy making should be a no-brainer.” We argued, “It’s obvious to us that any legislative proposal should be developed from reliable, impartial economic and policy research whose foundation is based on evidence and facts.” But when we saw what was in the Commission’s draft, it became clear that a large swath of substantive feedback from the public was mostly ignored.

Here we are a year later, and the situation in the EU has not improved one bit.

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The Estonian Presidency’s new (and optional) TDM exception: small potatoes

Man bekijkt een schilderij door een vergrootglas, Honoré Daumier, 1847
The reform needs major fixes, not minor tweaks
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Ahead of this week’s EU Council meetings of the Working Party on Intellectual Property (Copyright), the Austrian government has helpfully shared the Estonian Presidency’s revised compromise proposal on Articles 3 and 6 (including relevant recitals).

We’ve been following TDM with interest since the European Commission published its proposal on copyright in the Digital Single Market. Even though the Commission’s exception for TDM would be mandatory, we criticised their plan as not going far enough, as it would limit the beneficiaries of the exception only to research organisations, and only for purposes of scientific research.

The Estonian revisions leaves intact the Commission’s obligatory TDM exception that would apply to research organisations for purposes of scientific research. And, as expected, it continues to recommend that the beneficiaries originally contemplated by the Commission be expanded to include cultural heritage institutions. But the most significant change offered in this updated compromise proposal is an additional and optional exception in Article 3:

(5) Member States may provide for an exception or a limitation […] for temporary reproductions and extractions of works and other subject-matter that form an integral part of the process of text and data mining, provided that the works and other subject-matter are accessed lawfully and that the use of the works or other subject-matter for text and data mining is not expressly reserved by the rightholder.

This additional exception would apply to beneficiaries other than research organisations, and for uses other than scientific research. But those acts would be limited in that they only would cover temporary reproductions and extractions, and only if the rightsholder does not prohibit it. Continue reading

UK government report: The right to read should be the right to mine

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AI development requires permissive TDM rules
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Last month the British government published an independent report on Growing the artificial intelligence industry in the UK. The review, conducted by Professor Dame Wendy Hall and Jérôme Pesenti, discusses the potential for how artificial intelligence (AI) “can bring major social and economic benefits to the UK,” highlighting that AI could contribute an additional £630bn to the UK economy by 2035.

The report makes several recommendations that could be explored to support the continued development and adoption of AI in the UK, including improving access to data, training experts, and increasing demand for AI applications. Of particular interest to us are two specific recommendations:

“To improve the availability of data for developing AI systems, Government should ensure that public funding for research explicitly ensures publication of underlying data in machine-readable formats with clear rights information, and open wherever possible.

[and]

“To support text and data mining as a standard and essential tool for research, the UK should move towards establishing by default that for published research the right to read is also the right to mine data, where that does not result in products that substitute for the original works. Government should include potential uses of data for AI when assessing how to support for text and data mining.

It is clearly beneficial that governments require that the outputs of publicly funded research and data be made widely available in open technical formats that are consumable by computers. If the data is not made available in machine-readable formats, it will be impossible to efficiently conduct text and data mining across a large corpus of works. It’s also good that the report recommends that the UK push for an environment where “the right to read is the right to mine”—meaning that legal access to the underlying text or data should be sufficient for the user to conduct any further research techniques (such as TDM) and that no additional legal permissions or licenses should be  required in order to do so. Continue reading