This week we learned about a research study requested by the Legal Affairs committee regarding the potential impact of Articles 11 and 14-16 of the Commission’s proposed Directive on Copyright in the Digital Single Market. The research was overseen and published by the Policy Department for Citizens’ Rights and Constitutional Affairs.
We are especially interested in the assessment of Article 11—the provision that would create new rights in press publications that would allow to press publishers to control digital uses of even the smallest snippets of their content. COMMUNIA has long 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.
The European Commission, which came up with this idea, has offered no data about how a new right would increase revenues to sustain a free and pluralist press.
On the other hand previous Academic research as well as statements from the media companies themselves confirm that Article 11 won’t accomplish its aims, and is a danger to access to news online. The independent analysis commissioned by JURI conforms this once again, which should finally put the nail in the coffin on the press publishers’ right. The report concludes:
There are real concerns surrounding the rather uncertain effects of the right, and many of the problems facing press publishers can be resolved by a much less controversial intervention. We therefore approve the proposal made in the draft JURI Opinion, namely that the press publishers’ right be abandoned and replaced with a presumption that press publishers are entitled to copyright/use rights in the contents of their publications. (p. 8)
The authors of the research take a look at instances where a press publishers’ right has already been implemented, such as Germany and Spain. They conduct interviews with stakeholders on the ground to analyse the implications and effects of the ancillary rights there.Continue reading
The Council of the European Union, currently led by the Estonian Presidency, has published an updated compromise proposal regarding Articles 2 to 9 of the Commission’s draft directive on copyright. The Estonian proposal will be discussed among the Member States next week at the meeting of the Copyright working party.
The minor tweaks to the exception for text and data mining offered in this recent draft—as well as the earlier changes suggested in the Maltese compromise proposal from 8 May —are inadequate to supporting research and innovation in the European digital single market.
Where the Commission’s original plan only permits “research organisations” to take advantage of the exception, the new Council’s compromise proposal would extend the beneficiaries to include “cultural heritage institutions.” At first glance this addition would seem welcome because it expands (albeit narrowly) to an additional beneficiary group. But this meager edit ignores the larger concern that citizens and private sector organisations still will be excluded from the benefits of the exception. As we’ve argued, this is clearly not aligned with the goals of the reform to promote activity in the digital single market.
In addition, the Council compromise proposals do not change the problematic limitation that TDM may only be carried out strictly for “purposes of scientific research.” We’ve criticized the Commission’s short-sighted approach in only permitting TDM to apply to scientific research. Such a restraint will surely decrease the potential impact of novel TDM uses, such as for journalism-related investigations, market research, or other types of activities not strictly considered “scientific research”. Continue reading
This week Creative Commons published an analysis of some of the copyright-related provisions contained in the trade agreement currently being negotiated between the European Union and the Mercosur bloc. The EU and this South American sub-regional group of Argentina, Brazil, Paraguay, and Uruguay have been in talks about the free trade agreement (FTA) since 2000. The EU-Mercosur negotiations are situation during a time when several of the affected countries—including Argentina, Uruguay, Paraguay and of course the EU—are involved in a review of their own copyright legal frameworks.
Tabled copyright rules protect powerful stakeholders, ignore public interest
As expected, the copyright provisions of the intellectual property chapter are nothing to write home about. The CC analysis shows that the policy direction suggested by the negotiators would be detrimental to the public domain, creativity and sharing, and user rights in the digital age.
For example, the draft IP chapter recommends a copyright term extension for those countries that don’t already follow the life + 70 term. It upholds more than adequate measures for protection and enforcement of rights, but doesn’t include similar safeguards to protect users rights and balanced approach to copyright. The draft IPR chapter includes prohibitions to circumventing technological protection measures to gain access to a work, as well as a provision that would prohibit the creation and sharing of technologies that could enable a user to circumvent technological protection measures. You can read the full policy analysis here. Continue reading
This week MEP Julia Reda shared an unpublished report of a study examining the effects of copyright infringement on sales of creative works. Apparently the contract for the economic research was tendered by the Commission in 2014 for €360,000. It was completed in 2015 but never published, and Reda received a copy of the report after several freedom of information requests.
The background of the study hinges on the assumption that “illicit use of copyrighted material reduces revenues of rights-holders and thus their incentives to produce content.” (p. 19). As our friends at EDRi are pointing out, this assumption is one of the underlying motivations for the Commission’s deeply flawed crusade against open online platforms. So what does the research show? From the report (our emphasis):
In 2014, on average 51 per cent of the adults and 72 per cent of the minors in the EU have illegally downloaded or streamed any form of creative content […] In general, the results do not show robust statistical evidence of displacement of sales by online copyright infringements.” (p. 7)
This result is not shocking. Many online content providers are finding that users will pay for content when that content can be conveniently accessed at a fair price—hence the significant growth of popular online film and television streaming services like Netflix. But this is not the narrative that the Commission wishes to promulgate, as it doesn’t fit their worldview. Or more accurately, it doesn’t align with the interests of the incumbent content industries, who, as we’ve argued, want nothing more than “to minimize the impact of the fundamental changes brought about by digital technologies and the internet on legacy business models.”
One assumes that the findings from this study would have been a useful input into the Commission’s proposal for the Directive on Copyright in the Digital Single Market. And surely it would have been interesting to creative sector economists, the startup and technology communities, consumer rights organisations, civil society advocates, and the public at large. Instead, the Commission pushed ahead and introduced restrictive copyright reforms that blindly tries to stop something, which according to research commissioned by the Commission itself is not a problem.
This incident makes a few things crystal clear: 1) the Commission has confirmed it has no interest in pursuing evidence-based policymaking, and 2) freedom of information laws are an increasingly vital tool by which to shed light on the shady workings of some public institutions.
Summer is nearly over, and the European Parliament Committee on Culture and Education (CULT) has published their final opinion on the draft Directive on Copyright in the Digital Single Market. The opinion comes following the committee vote on 11 July.
We were hopeful that CULT could deliver some helpful (and much needed) changes to the Commission’s proposal, including broadening the education exception, permitting cultural heritage institutions to share their collections online, deleting the dangerous press publishers right, and opposing upload filters for online platforms.
Regarding text and data mining (TDM), we wished for CULT to push for expanding the exception so TDM could be conducted by anyone, for any purpose. Instead, CULT has doubled down on their backward approach to Article 3.
Last week the Culture and Education Committee (CULT) and the Committee on Industry, Research and Energy (ITRE) voted on their final opinions on the Commission’s Directive on Copyright in the Digital Single Market. As our friends at EDRi have highlighted, both committees voted for measures that would make the Commission’s already bad proposal even worse. The ITRE and CULT (not published yet) opinions are particularly bad regarding the question of new rights for publishers.
The introduction of a new right for press publishers (aka the “link tax”) to extract fees from search engines for incorporating short snippets of – or even linking to – their content in article 11 is one of the most controversial issues of the proposed directive. Adopting this type of ancillary right at the EU level would have a strong negative impact on all stakeholders, including publishers, authors, journalists, researchers, online service providers, and readers.
We know that previous experiments with ancillary copyright in Spain and Germany have failed, a fact that was already known to the Commission because it is acknowledged in its impact assessment leading up to the release of the original proposal. We’ve argued that a new right for press publishers would undermine the intention of authors who wish to share without additional strings attached, especially creators that use Creative Commons licenses to share their works. We urged that the provision be removed from the directive.
In recent months there seemed to be an increasing focus on neutralizing this contentious provision. MEPs such as IMCO Rapporteur Catherine Stihler and former Legal Affairs Committee Rapporteur Therese Comodini had gathered support for deleting the press publishers right. Despite of this, last month the new right was retained in the opinion of the IMCO Committee. The opinion removes the clause of the Commission’s proposal which would retroactively apply the publishers right to anything published in the last twenty years. Continue reading
Now that the EU Parliament committees have introduced their amendments to the Commission’s Directive on Copyright in the Digital Single Market, it’s useful to take a look back at the evolving nature of various aspects of the reform. This week we’ll review the copyright exception for text and data mining. Text and data mining (TDM) enables mechanical analysis of huge amounts of text or data, and has the potential to unlock interesting connections between textual and other types of content. Understanding these new connections can enable new research capabilities that result in novel technological discoveries, critical scientific breakthroughs, journalistic endeavors, and new business analytics opportunities.
The Commission first asked about text and data mining in its 2013 public consultation on the review of the EU copyright rules, and Communia responded to the call for feedback. We argued that text and data mining should be considered as an extension of the right to read—that mining texts and data for facts is an activity that is not and should not be protected by copyright. We noted that TDM should not be addressed through contractual-, license-, or fee-based approaches, and urged that technical protections measures should not prevent users from engaging in text and data mining activities. We argued for legal clarity in our 2015 policy paper on the the review of the EU copyright law: “the development of clear rules for researchers who must be able to read and analyse all information that is available to them, whether through text and data mining or otherwise.”
The Commission’s Crippled Proposal
In September 2016 the European Commission released its copyright reform directive. For the most part it lacked a progressive vision, adequate protections for the public interest, and workable solutions to promote the European digital single market. This characterization is equally applicable to how the Commission handled text and data mining. In our response to the directive, we noted that it’s good that the Commission recognized that researchers encounter legal uncertainty about whether—and how—they may engage in text and data mining, and are concerned that publishers’ contractual agreements may exclude TDM activities. So, in this respect it’s positive that the Commission introduced a mandatory exception to copyright for text and data mining that would forbid contractual restrictions or terms of service from interfering with the right to exercise the exception.
Later this week in Toronto we’ll be joining hundreds of Creative Commons community members, supporters, and activists at the CC Global Summit. The summit program will feature keynotes and a variety of sessions organized around five tracks, including Policy & Advocacy, the Useable Commons, Community & Movement, Spheres of Open, and the Future of the Commons.
We’ll be joining many of the sessions, especially in the Policy & Advocacy track. As Lisette explained last week, the Policy & Advocacy track will focus on sharing information about our work in support of copyright reform and commons advocacy, and increasing the effectiveness of our community in the current and future hotbeds of law and policy change. These are exactly the areas in which COMMUNIA has been working since the summer of 2014, when we rebooted as an advocacy team to respond to the then-upcoming reform of the EU copyright rules. We know that other governments around the world are engaged in (or planning) updates to rules that govern the creation and sharing of creativity and knowledge. Some of these changes acknowledge the importance of user rights in the digital and online world, but many of the proposals only call for an increase in protection and enforcement of copyright that benefits powerful rights holders and content publishers.
MEP Therese Comodini Cachia, Rapporteur for the European Parliament’s influential Committee on Legal Affairs (JURI), finally released the official version of its already-leaked draft opinion on the Commission’s Directive on Copyright in the Digital Single Market.
As we explained yesterday, Comodini’s draft misses the opportunity to introduce more forward-looking provisions that would strengthen the position of users such as a much-needed exception for user-generated content and freedom of panorama. At the same time, there are positive amendments, including the removal of the ill-advised ancillary right for press publishers.
The JURI draft amendments are quite positive with regard to the exception for text and data mining. The Commission’s original proposal limited the beneficiaries of the text and data mining exception only to research organisations, and only for purposes of scientific research. Comodini’s amendments would expand the TDM exception to apply to anyone for any purpose. In addition, it would mandate that publishers provide a mechanism for users who otherwise do not have legal access to the corpus of works to be able to engage in TDM on the publisher’s content, possibly after paying a fee to those publishers. Finally, the amendment would direct Member States to setup a secure facility to ensure accessibility and verifiability of research made possible through TDM.
We’ve already reviewed the draft opinions from the European Parliament’s Culture and Education Committee (CULT) and the Committee on the Internal Market and Consumer Protection (IMCO) on the Commission’s proposal for a Directive on copyright in the Digital Single Market. Regarding the introduction of an exception for text and data mining (TDM), the IMCO amendments would strengthen the Commission’s original plan by creating a broad exception for text and data mining that would apply to anyone for any purpose. On the other hand, the changes offered by CULT would further restrict the ability to conduct TDM in the European Union.
TDM for all
This week the Committee on Industry, Research and Energy (ITRE) released its draft opinion on the Commission’s plan. Rapporteur Zdzisław Krasnodębski’s suggested changes focus on the proposed exception for text and data mining. ITRE’s amendments—similar to those offered by IMCO—would support an expansive TDM exception that could be leveraged by entities beyond research organisations, and for purposes beyond scientific research.