Implementing the Copyright Directive: Protecting the Public Domain with Article 14

The Doctor's Dream
Ending the appropriation of Public Domain works
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Article 14 – Works of visual art in the public domain – is one of the very few unambiguously good provisions of the new EU copyright directive. The article is intended to ensure that (digital) reproductions of public domain works cannot be protected by exclusive rights, and as a result, taken out of the public domain. This legislative intervention comes in response to the relatively widespread practice of museums in claiming exclusive rights of digital reproductions of public domain works that they have in their collections and which they make available to the public. In practice this has already led to Spanish Museums claiming copyright over paintings by Dutch masters who have been dead for 350 years, and German museums suing Wikipedia for hosting reproductions of public domain works as part of Wikimedia Commons

What is in the public domain in analogue form is [not always] in the public domain in digital form

While at first glance it seems counterintuitive that a museum should be able to control the rights for artworks of long dead artists, such claims do have a basis in existing law. In general, for a work to be protected under copyright it needs to show “the author’s own intellectual creation.” However, there is another category of copyright-like rights (also called “related rights”) that exist in a number of EU Member States. These related rights schemes grant exclusive rights to the creators of photographic works that do not meet the originality criterion necessary to receive copyright protection (See this 2015 study by Thomas Margoni for more details). Related rights arise even when a reproduction is nothing more than an exact photographic copy of a work. Where copyright protects original artworks, these related rights protect simple copies. 

As museums have started to make works in their collections available online, the practice of relying on related rights to restrict the re-use of non-original reproductions of public domain works has become controversial. Both the Public Domain Manifesto and the Europeana Public Domain Charter demanded that what is in the public domain in analogue form must stay in the public domain in digital form (as does our own policy recommendation #5). While the overall majority of museums have always acted in the spirit of expanding the public domain, and have made reproductions of public domain works available without any restrictions on re-use, a small number of museums from Member States that allow the protection of non-original reproductions of public domain works continue to claim rights over such reproductions. Continue reading

Canadian copyright report: Let’s wait and see how upload filters and press publishers rights will fail.

Waiting for the ferry
A sceptical take on the EU copyright reform
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Last week the Canadian Parliament’s Standing Committee on Industry, Science and Technology (INDU) released a report with 36 recommendations to reform Canadian copyright law. Under Canadian law the committee is required to review the Canadian copyright statutes every five years and the report presented now is the outcome of such a review. While this means that it is relatively unlikely that many of the recommendations contained in the report will result in immediate legislative actions (the government is not required to act on them) the report is nevertheless interesting as it contains a number of recommendations that go in the opposite direction of the changes that the DSM directive will bring to copyright in the European Union (for a full overview of the recommendations see Michael Geist’s summary).

After a year-long study that includes a public consultation and a number of committee hearings on a wide variety of issues, the INDU committee has come to the conclusion that there is a lack of evidence for both a DSM-style press publishers right and for changes to the liability position of platform intermediaries as foreseen in Article 17 of the DSM directive. While Canadian rightsholders argued for the necessity of such interventions, they failed to convince the committee of the merits for these provisions.

On the press publishers right the report essentially takes a wait and see approach (i.e. to see just how badly the EU will fail on these points) that conveys a healthy amount of scepticism with regard to the effectiveness of the EU approach.

The production and dissemination of news content is essential to democratic societies. While the Committee supports the notion that OSPs who profit from the dissemination of copyrighted content they do not own should fairly remunerate its rights-holders, legislators around the world are only starting to develop and implement legislative frameworks to compel OSPs to do so. Canada should learn from the failures and successes of these initiatives to determine whether they serve the interests of Canadians. (page 53)

The report goes on to discuss potential changes to the “Safe Harbour Provisions” that apply to online service providers. Unsurprisingly this discussion is based on the “value gap” rhetoric that provided the germ of the upload filtering provisions contained in Article 17 of the DSM directive. The section on “Safe Harbour Provisions” (pages 74-83) is well worth reading as it makes it clear that there is no such thing as a single “value gap” that can be filled via a legislative intervention, and that changing the liability rules for online service providers will have damaging effects well beyond the music sector: Continue reading

The Copyright Directive challenged in the CJEU by Polish government

Effata Regum Poloniae usque ad Ioannem Casimirum [...]
An independent court will assess the Directive
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Copyright not only regulates the interests of creators and intermediaries, but also applies to users’ rights. This was one of our main arguments in the discussion on Article 17 of the new copyright directive, which was often disregarded by our opponents. In our opinion Article 17 is not well-balanced and creates threats to freedom of expression. Such an assessment is shared by others: the UN Special Rapporteur on Freedom of Expression, non-governmental organizations dealing with digital rights, and a significant part of the academy. Now the very same objections will be evaluated by Court of Justice of the European Union.

Last week, the Government of the Republic of Poland filed a challenge to the new Directive on Copyright in the Digital Single Market, specifically Articles 17(4b) and 17(4c). The Minister of Culture and National Heritage explained:

“in our opinion this mechanism introduces solutions with preventive censorship features. Such censorship is forbidden by both the Polish Constitution and EU law – the Charter of Fundamental Rights guarantees freedom of expression.”

Interestingly, by filing the charge, the Polish government fulfilled a political promise made during the recent electoral campaign. At that time, Polish Prime Minister Mateusz Morawiecki tweeted that the new law is “a disproportionate measure that fuels censorship and threatens freedom of expression.”Continue reading

Open Letter: Implementation Guidance on Article 17 Must Include Public Interest Stakeholders

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On Friday the Directive on Copyright in the Digital Single Market was published in the Official Journal of the European Union, formally kicking off the implementation phase in which the Directive will be transposed into the national laws of the EU Member States. EU Member States will have until 7 June 2021 to adopt the provisions laid down in the directive into their respective copyright laws.

Today Communia and over 40 organisations sent an open letter to the European Commission calling for an inclusive stakeholder dialogue that incorporates the views of human rights, digital rights, and access to knowledge organisations. The letter was organised by the Civil Liberties Union for Europe (Liberties). It focuses on Article 17 (formerly Article 13), the sweeping provision that alters the liability regime for online platforms by requiring licenses for all user generated uploads, and would lead to platforms having to install content filters lest they become liable for copyright infringement for works that aren’t able to be licensed. The adoption of Article 17 will put fundamental freedoms at risk and set a dangerous precedent for user rights, so it’s absolutely critical that in the implementation the article is transposed with care to protect freedom of expression. From our open letter:

Broad and inclusive participation is crucial for ensuring that the national implementations of Article 17 and the day-to-day cooperation between online content-sharing service providers and rightholders respects the Charter of Fundamental Rights by safeguarding citizens’ and creators’ freedom of expression and information, whilst also protecting their privacy. These should be the guiding principles for a harmonized implementation of Article 17 throughout the Digital Single Market.

Over the entirety of the 30-month reform process, Communia has been advocating for changes to improve the situation for users rights and produce a more balanced copyright system. Article 17 sets platforms up for failure because it is impossible to meet the obligations they have under the mitigation measures and to safeguard user rights at the same time. That’s why it’s important that the stakeholder dialogue and consultations on implementation listen closely to the input from human rights, digital rights, and knowledge communities in order to protect user rights and freedom of expression.

DSM directive adopted – implementation in Member States can still make a difference

Portret van Johann Lutz
Two year implementation period starts now
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Earlier this week, after almost exactly 30 months of legislative wrangling, the EU Member States approved the final compromise of the Directive on Copyright in the Digital Single Market. It’s the same text that was approved by the European Parliament at the end of March. This means that the Directive will become law as soon as it is published in the Official Journal of the European Union. Judged against our own ideas about a modern EU copyright framework that facilitates access to cultural and information, strengthens user rights and reduces unnecessary copyright infringement, the outcome of EU copyright reform process is a big disappointment. The directive expands the scope of copyright and instead of harmonising copyright rules across the EU member states, it contains measures that will further fragment and complicate the EU copyright framework. Instead of strengthening public interest exceptions to copyright, the directive relies on voluntary licensing by rightholders, giving them the ability to block users’ access.

As a result the final directive does not live up to the “Digital Single Market” label that it carries in its title. The adopted text does very little to harmonise an already complex set of rules among the Member States. Instead, the directive creates additional rules to the system that have been designed to further the (perceived) interests for specific classes of rightholders—most notably the music industry and press publishers. Once the directive has been implemented in the Member States, the EU copyright system will likely be more complex, and thus more difficult and costly to navigate for users and European businesses.

In this regard the provisions of Article 17 (formerly Article 13) remain the most problematic in the entire directive. The article is a legislative monstrosity that will most likely achieve the opposite of what it was intended to accomplish. Instead of establishing clear rules that require commercial content sharing platforms to adequately remunerate the creators of the works that they distribute, it will impose substantial regulatory burdens and create legal uncertainties for years to come. The most likely benefactors of this outcome will be large rightholders and the incumbent dominant platforms. The existing intermediaries within the creative value chain will have the means to navigate the uncertainties and conclude complex licensing arrangements, but users and independent creators at the edges of these value chains will suffer the consequences: They will be presented with fewer distribution platforms to choose from, and they will have less freedom of creative expression.

Implementation can make a difference

With the directive formally adopted by both the Parliament and Council, the fight for a better EU copyright enters into a new phase. The EU Member States will soon have two years to implement the rules established by the directive into their national copyright laws. While such implementations will have to include all the problematic aspects of the directive, there is some room for meaningful improvements, and some measures can be taken to mitigate the worst provisions of the directive. Continue reading

European Parliament Approves Updated Directive on Open Data and Public Sector Information

Johan van Oldenbarnevelt verschijnt voor zijn rechters
but transposition will be key
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On Thursday the European Parliament voted 550-34 (with 25 abstentions) to approve the Directive on Open Data and Public Sector Information. The directive updates the rules controlling the re-use of public sector information held by public sector bodies of the Member States and also governs the re-use of documents held by public undertakings, such as water, energy, transport, and postal services. The recast directive is expanded to cover publicly funded research data. It states that charges related to the provision of PSI should in principle be limited to marginal costs related to the initial provision of the documents. And it also prioritises the identification and sharing of “high-value” datasets that should be available for free re-use via APIs.

The purpose of the refreshed directive is to promote the use of open data and stimulate innovation in products and services in the Digital Single Market. The directive says Member States should approach the re-use of PSI according to the principle of “open by design and by default.”

Communia has been active in the discussion on the legal framework for re-use of public sector information in the EU for many years, producing position papers in 2012, 2014, and 2018, and providing feedback to the recast proposal in July 2018. We’ve supported changes that would expand the scope of the directive, and pushed for increased legal clarity around aspects such as standard open licenses for PSI. The final Directive addresses some of our concerns, but after it is formally approved by the Council of the EU, it will be up to the Member States to implement the recast directive rules into their national laws. Transposition must be completed within two years.

Below we discuss a few pieces of the directive we’ve been following. Continue reading

The new Copyright Directive is a lost opportunity for Europe

Hercules by Albrecht Dürer
and shows lack of respect for user rights
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Today, after a 30-month long legislative procedure, the European Parliament voted on the Directive on Copyright in the Digital Single Market. Members of the Parliament approved the Directive, with 348 voting in favor and 274 voting against, and 36 abstaining.

The Directive is the most important European regulation of the digital sphere in the last several years. It will define the shape of copyright in Europe for years to come — and have spillover effects for regulation around the globe. We believe that the approved directive will not meet the goal of providing a modern framework that balances the interests of rightsholder and users, protects human rights and enables creativity and innovation to flourish. Instead, it is a biased regulation that supports one business sector, at the cost of European citizens.

In the last two and a half years, and especially since last June, we faced an extremely heated debate and intense legislative process. During this time, together with a broad coalition of activists, experts and organisations, we attempted to remove (or improve) its most controversial parts. In the last weeks, we supported an effort to amend the directive during the plenary, in a last attempt to remove the most detrimental provision — Article 13. Unfortunately, the European Parliament rejected a motion to vote on amendments to the Directive, with 312 MEPs voting in favor, and 317 voting against. This motion would have opened the door to remove Article 13 but keep the rest of the directive intact. It failed.

The Directive was therefore approved, with all the controversial elements that we have been criticising: content filters introduced by Article 13, new rights for publishers introduced by Article 11, and a mechanism for overriding copyright exceptions for education by private agreements introduced by Article 4/2.

European parliamentarians, together with the Commission and the governments of the Member States have given a strong signal of support to the entertainment industries and their incumbent players — at a dire cost to internet users and freedom of expression. We believe that it is an unbalanced approach that will have severe repercussions. These legal provisions will not only cost millions to small and medium sized European platforms, but most importantly put fundamental freedoms at risk and set dangerous precedents for user rights.

Say YES to copyright and NO to Article 13

Say YES to copyright and NO to Article 13Licentie

Earlier today, on the eve of tomorrow’s vote, we distributed 750 copies a journal titled “Say YES to copyright and NO to Article 13” to the offices of the MEPs in Strasbourg. This is part of a last ditch effort by civil society organisations to prevent MEPs from approving a new copyright directive that includes the disastrous Article 13. You can download our journal here (pdf) and we are re-publishing the text of the editorial below.

Say YES to copyright and NO to Article 13

Article 13 of the proposed Copyright Directive will put even more control over European culture and knowledge into the hands of online monopolies. As organisations representing digital creators and knowledge workers, we urge you to reject this provision that will replace the rule of law with proprietary algorithms controlled by big tech companies.

It is high time that Europe adapts its copyright framework to meet the needs of the digital age. The proposed directive contains many measures that take steps in the right direction, such as improving the negotiation position of authors and performers, better safeguarding the public domain, and by allowing researchers and cultural heritage institutions to make better use the opportunities created by the digital environment.

In spite of widespread opposition from academics, internet users and millions of concerned citizens, the directive still contains provisions that will force most internet platforms to filter all content uploaded by their users to remove any copyrighted works flagged by rightsholders. This will cost European companies and new startups millions, and what’s worse, it won’t work. The idea that technology can reliably differentiate between legitimate and unauthorised uses of copyrighted material has been credibly disputed by experts across the spectrum. Putting the regulation of speech and creative expression in the hands of private corporations lacks public support.

  • Instead of taking the right step toward a Digital Single Market that works for all, a directive that includes Article 13 would sow even more legal uncertainties.
  • Instead of empowering European creators, it will entrench the position of dominant platforms.
  • Instead of balancing fundamental rights, it will weaken the law by shifting power towards algorithms and away from crucial users’ rights upholding freedom of expression.

We support the objective to ensure that creators are rewarded adequately for their creativity. Upload filters themselves will not achieve this objective. This directive needs to take the interests of all stakeholders into account, not only “big tech” and “big content”. Copyright should be a matter of social contract that upholds the public interest, not of secret algorithms controlled by private actors. We therefore ask you to reject the text of the directive as long as it includes Article 13.

Reminder: making platforms pay creators doesn’t require upload filters

Musicerend gezelschap
Delete Article 13 now
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Days before the final vote of the European Parliament on the copyright directive, the discussion about the directive seems entirely focussed on Article 13. A wide coalition of civil society groups, online creators, academics and citizens is calling for the removal of Article 13 from the directive. On the other side 270 organisations representing rightsholders are calling on MEPs to say “yes to copyright” and pass the directive in its current form (including Article 13).

Behind the facade of these well known (and deeply entrenched) positions, something interesting is going on. If we start un-peeling the arguments brought forward by both sides, it seems that they are closer than it appears. When it comes to Article 13 there seem to be two points that almost everyone seems to agree on:

(1) Nobody really wants to see the widespread use of upload filters and (2) Everybody agrees that there is a need to ensure that creators are fairly rewarded on the basis of licenses obtained by the online platforms.

This agreement is emerging as a result of several recent developments. On the side of the opponents of Article 13 the intense discussion of the previous weeks has resurfaced the fact that underneath the calls for a deletion of Article 13 there is widespread acknowledgement that there is a real need for platforms to pay those creators who want to be paid for uses of their works by the platforms. On the side of the proponents of Article 13 there seems to be an increasing realisation that an Article 13 that does require widespread use of upload filters may lack sufficient support within the EP (and certainly outside of it).

Upload Filters have become toxic

This second development represents a marked shift in the positioning of the supporters of Article 13. The most prominent example of this is a position paper of the German CDU (the same political party that rapporteur Axel Voss belongs to) in which the promise (to an enraged German electorate) that Germany would implement Article 13 in such a way that there will be no need for upload filters (by requiring platforms to obtain blanket licenses). While the substance of this claim is way out of line with the actual text of Article 13 and the requirements of the rest of the EU framework, it does illustrate that even for the CDU, which was instrumental in pushing through the current text, upload filters have become too toxic to be associated with. Continue reading

Dear European Parliament – say #Yes2Copyright, but NO to #Article13

Tuin met parterre met labyrint en op de achtergrond een poort
There is still time to act!
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The final vote on copyright reform in the plenary session of the Parliament is scheduled for March 26. After more than 30 months of work on this topic our overall assessment remains unchanged: The proposed Directive is bad, and will not make the internet work for people. The final “compromise” text has done nothing to accommodate the concerns we and others have raised over the past 2+ years.

As long as Article 13 remains part of the package, the only sensible way forward it to make sure that Directive will be rejected by the European Parliament.

There is still time to act! Read along to find out what you can do in the last days before the vote.

Upload filters don’t (and can’t) respect users’ rights

Through the lens of copyright, Article 13 turns upside down how the web works. Instead of permitting users to upload content to platforms and resolving platforms from liability as long as they act quickly to remove infringing content once notified, Article 13 would require nearly all for-profit platforms that allow UGC to conclude licenses all user uploads. If they don’t obtain the licenses, then the only option will be to install upload filters and censor content in order to ensure that any unsanctioned content remains off their service. If the platforms don’t comply, they could be held liable for significant copyright infringement damages. Continue reading