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.
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
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.
“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
It’s Open Access Week, the yearly global event to raise broad awareness about the opportunities and benefits for open access to scientific and scholarly research. Open Access Week—now in its 10th year—also mobilises action for progressive policy changes so that researchers and the public get immediate online access to the results of scholarly research, and the right to use and reuse those results.
During Open Access Week, we show our support for a variety of educational projects, publishing practices, and policy actions that push for open access to science and scholarship for everyone. In addition to advocating for the massive adoption of open access around the globe, we should also focus on protecting and expanding the fundamental user rights that permit access and reuse of copyrighted works.
Copyright law can boost or break new modes of research
We’re highlighting the importance of copyright law, which can either boost or significantly hinder Open Access. This year’s theme is “Open In Order To…”—an invitation to answer the question of what concrete benefits can be realized by making scholarly outputs openly available. We believe in the practice of being “Open in order to encourage new modes of research.” Creative Commons licensed publications and data can help realise the potential for scientific discovery because they are “open” for immediate access and reuse. CC licensed open access publications grant permissions that would otherwise be impossible under all-rights-reserved copyright schemes. But we know that everything will never be made available under an open license. That is why we strongly advocate for broad limitations and exceptions to copyright, especially for practices such as text and data mining. Continue reading
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 Felix 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