Two weeks ahead of the second trilogue meeting on the 26th of November where the most controversial parts of the Copyright Directive will be discussed for the first time, various stakeholders are starting to position themselves for the final stages of the reform process. Yesterday Politico.eu leaked the compromise suggestions prepared by the Austrian Presidency for articles 11 and 13. Unsurprisingly the suggested texts maintain the general approach that was cemented by both the Council and the Parliament over the summer (see analysis by MEP Julia Reda here). By now it is clear that regardless of how much we argue that Article 13 should be deleted and that Article 11 should be limited to a presumption of representations neither of these two things will happen.
Limiting the damage by clearly identifying the services targeted
Under these conditions it seems that the most promising approach to minimize the harm that will be caused by these articles will be to limit what type of services they apply to.
Article 11 should be modified in such a way that it only applies to search engines and news aggregators. These are the type of services that press publishers are claiming to cause them harm (which we continue to doubt). This would prevent a lot of legal uncertainty (and thus damage) for everyone else on the internet.
The same approach makes sense for article 13. The music industry and other rightsholders have consistently argued that they are harmed by large online platforms that allow users to share audiovisual (AV) works. Given that the stated objective of the proponents of article 13 is to create a better bargaining position for rightsholders vis a vis YouTube, Facebook, Google and other commercial platforms, it seems reasonable to limit the types of services that would need to comply with article 13 to for-profit audio visual platforms that compete with licensed services only. Such a measure would prevent a lot of legal uncertainty for platforms that do not deal with AV works or do not operate on a for profit basis. Continue reading
yes. i am lonesome tonight. is a video by visual artist and performer Daniel Pinheiro, and probably one of the most intelligent uses of a pre-existing work that you’ll see on social media platforms today and tomorrow. Not the day after, because copyright infringement will soon prompt its removal.
You see, some of the works created by Daniel Pinheiro rely heavily on copyrighted works that do not belong to him. yes. i am lonesome tonight. consists of a black screen in which the words “yes”, “i did”, “i’m sorry” and “i didn’t” appear as answers to the questions posed by Elvis Presley in the song “Are you lonesome tonight”, composed by Lou Handman and Roy Turk. Elvis sings “Are you lonesome tonight” and Daniel whispers “Yes”. And so it goes:
Do you miss me tonight?
Are you sorry we drifted apart?
Could fair use save the lonely artist?
Daniel’s intervention is minimal, from a quantitative point of view, and he uses the source work in its entirety, which would weigh against fair use, in countries where fair use exists. Yet I doubt any art curator or critic would not render it as a new and unexpected use of Elvis’ musical performance. In other words, the transformative character of yes. i am lonesome tonight. could perhaps be enough to consider this Visual-Art work a fair use, even when all the remaining statutory factors (such as the amount of the source work used) would traditionally weigh against fair use. Continue reading
Last month the notorious EU Parliament vote approved almost all of the worst measures of the proposed Directive on Copyright in the Digital Single Market. It was a significant setback for user rights and the open internet.
Recap: 12th September Parliament vote
The Parliament voted in favor of Article 13, which even though it didn’t mention explicitly, would in practice force online platforms that host significant amounts of user-uploaded works to filter all content for copyrighted materials and prevent the upload of those works unless a license has been agreed to. If the platforms don’t do this, they would be liable for copyright infringements of their users.
They approved Article 11, which gifts a new copyright-like right to press publishers that will allow them to control how we access and reference press publications and news stories online.
The text and data mining provisions of Article 3 pretty much stayed the same, with a mandatory exception carrying through, but only one which can be taken advantage of by not-for-profit research organisations, and only for the more limited scope of scientific research. An optional addendum would permit an expanded exception applicable to all, but only if the rights holders in the underlying works don’t object to it, or arrange their own licensing requirements.
Article 4, the copyright exception for education applying to digital and cross-border teaching activities, while being seriously improved over the Commission version, still contains the fatal flaw that the mandatory exception can be essentially ignored if there is appropriately licensed content made available in a Member State.
To add insult to injury, the Parliament doubled down on their rights giveaway bonanza, approving Article 12a to grant sports events organizers to prohibit anyone from sharing photos or other recordings of sports events. And the new Article 13b requires that image search engines to obtain licenses for even the smallest preview images that they display as search results.
There is no way around it, the outcome of today’s vote on the copyright directive in the European Parliament is a big loss for user rights and the open internet. MEPs have decidedly sided with the demands of the creative industries to hand them more control over how we access, use and share copyrighted works. Out of the seven issues that we listed this morning the European parliament voted against our position every single time.
Taken together the positions adopted by the European Parliament this morning amount to an unprecedented expansion of exclusive rights for a small subset of already-powerful interests:
- Under Article 13, rightsholders would get more control over how copyrighted works can be shared on online platforms. It will allow them to force platforms to filter content in ways that will negatively impact users rights.
- Under Article 11 press publishers would get an entirely new right that will allow them to control how we access and reference press publications.
- Under Article 3 rightsholders would get the right to prevent anyone other than scientific researchers from using computers to analyse information contained in legally accessible works.
- Under the new Article 12a sports events organizers would become copyright holders allowing them to prohibit anyone from sharing photos or other recordings of sports events.
- Finally under the new Article 13b image search engines would need to obtain licenses for even the smallest preview images that they display as search results.
There are a few bright spots in the report adopted today, such as a slightly beefed up education exception and better mechanisms allowing cultural heritage institutions to provide access to out of commerce works, but on balance the result of today’s vote amounts to a substantial weakening of the public domain.
In having chosen the side of the content industries MEPs have turned their back on the potential of an open internet to foster research, access to information and as a driver of creative innovation. This happens against the backdrop of serious concerns from academics that these new rights may be ineffective and will possibly even entrench the dominant position of the dominant platforms providers.
With today’s adoption of the report the path is now clear for negotiations (the so called “trilogue“) between the Parliament, the Council and the Commission (see this helpful infographic for an overview of the remaining steps). Given that on most issues the positions of the three legislators are very similar, this process, which will be guided by the Austrian Presidency, will likely be relatively swift. Once these trilogue negotiations are complete, the resulting text will once more be voted in the European Parliament. This vote, which will likely take place at the end of this year or early next year will be the last possibility to prevent (or at least limit) the effects of today’s land grab by rightsholders. Stay tuned for a more extensive analysis over the next few days.
It is less than a week before the decisive vote on the proposed Directive on Copyright in the Digital Single Market. In the past few weeks MEPs have tried and failed to come up with a compromise position on the most controversial element of the directive proposal, the upload filters for online platforms that would be mandated by Article 13. As a result all options ranging from filtering obligations that would cripple online platforms to the deletion of Article 13 remain on the table for next week’s vote. On a positive note, MEP Dutch Marietje Schaake has tabled positive amendments to Article 3, which bring the exception as close as possible to the rule “The right to read is the right to mine”.
Article 13 still spells trouble for the knowledge community
We have been univocal in our conviction that the upload filters mandated by Article 13 are a terrible idea. They would limit the freedom of expression of European internet users and creators, and allow big corporate rightsholders to establish themselves as gatekeepers of cultural expression that would limit cultural diversity online. We are also concerned about the effects that filtering requirements would have on access to knowledge.
While most of the proposals on the table explicitly exclude open knowledge repositories like Wikipedia, open access publication platforms and free software repositories from the filtering obligations (and liability risks) established by Article 13, this does not guarantee that the directive will not limit access to knowledge and culture and damage the public domain. Exempting these service may protect them from the immediate negative effects of the Directive, but but it would not take away legal uncertainties for innovators in this space.. This is why projects from Wikipedia to GitHub to the library and research community still oppose Article 13. Just yesterday, Jimmy Wales, a Wikipedia co-founder, warned again that “foolish, detrimental changes to the law could make it really hard for future platforms to allow people the freedom to create.”
Jimmy Wales in discussion with MEP Axel Voss in the European Parliament (Sebastiaan ter Burg – CC-BY)
The decentralised nature of the internet has enabled a radical opening up of knowledge and a culture of sharing that has reduced the ability of commercial intermediaries to control and limit access to knowledge for profit making purposes. Continue reading
Summer is definitely over (sorry to write this) and copyright reform is back as one of the most controversial issues on the Brussels policy agenda. It is expected that the European Parliament will finally decide on the position on the proposed Copyright in the Digital Single Market Directive on September, 12th. Right now things are not looking good: instead of a much needed update of the copyright framework that would enable new uses driven by technological innovation, policy makers in Brussels are working towards new restrictions that would would limit how information and creativity can be shared and enjoyed online.
To prevent this from happening we are joining forces with a broad coalition of civil society organisations, academics, libraries and free software developers to advocate for sensible rules that do not limit access to knowledge, freedom of expression and innovation online. A balanced approach on copyright reform matters for all of us and we urge you to join us in convincing MEPs that they must not damage the internet in order to serve the interests of rightsholders. Please join us in contacting your MEPs via saveyourinternet.eu
Copyright action week
Throughout the coming days (up until the 11th which is the day before the vote in the European Parliament) various groups and initiatives will highlight the negative impact of the Article 13 (upload filters) on a broad range of issues. These include human and digital rights, academic research , access to knowledge, online creation and fan art and many other everyday online activities. Continue reading
Yesterday, together with our co-signatories Education International and ETUCE, we shared a letter highlighting concerns about the proposed exception for education with the members of the European Parliament.
You can read the full letter here.
We shared suggestions on three main issues that we want to change in the Commission-text on the education exception, which will be the basis of the vote on 12 September:
#1: Support a broad definition of educational establishments
Unfortunately, the European Commission’s proposal does not include all organisations where educational activities take place, as only formal educational establishments are covered by the exception. We note that the European lifelong-learning model underlines the value of informal and non-formal education including continuous professional development conducted in the workplace. This takes place in collaboration with, among others, cultural heritage institutions and NGOs. All these are excluded from the education exception.
We therefore ask members of the European Parliament to support amendments that clarify that all organisations where educational activities, both formal and non-formal, take place are covered by the education exception.
Today, Communia sent feedback to the European Commission on its proposal to amend the Directive on the re-use of public sector information. This is the second time the Commission has proposed to update the legal framework for access to and re-use of Public Sector Information (PSI) since the Directive was adopted in 2003. The most important changes from the previous amendment (2013) was the introduction of a genuine right to re-use by making all content that can be accessed under national access to documents laws reusable, and expanding the scope of the Directive to cover libraries, museums, and archives.
This time, the European Commission has proposed to make more research data available, extends the scope to public undertakings (including transportation data), and further limits the scenarios in which public entities may charge for data. This proposal was preceded by public consultations (see COMMUNIA’s response).
We support the proposal to amend Directive, but at the same time we want to draw attention to some issues where the proposal should be improved. Below are our recommendations.Continue reading
As the members of the European Parliament make their way to Strasbourg for the final plenary before the summer break, here is a reminder of what is at stake when they will vote on the JURI report on the proposed copyright directive this Thursday. Formally they will be voting to approve (or reject) the negotiation mandate the JURI members had given themselves on the 20th of June which, allows MEP Voss to start negotiating the final text of the directive with the Member States and the European Commission. As we wrote earlier the negotiation mandate is highly problematic as it embraces both the publishers right (“link tax”) and a requirement for open platforms to filter all user uploads (“censorship filters”). Both of these articles, which are pushed for by large rightsholders to give them more control over the content that they distribute, undermine important principles of the Internet and will cause significant damage to the much wider online environment.
In other words, the question that MEPs will have to decide this week, is if we accept the fact that fundamental principles of the Internet get thrown overboard at the request of particular industries who stand to benefit from such a move, even if it is clear that everybody else will be worse off as a result. Over the past weeks it has become clear that people are not happy with this prospect. MEPs have been overwhelmed with angry mails from Internet users, online creators have warned about the end of certain forms of creativity, people have taken to the streets in more than 30 places across Europe and more than 145 civil society organisations once again confirmed their opposition to the proposed measures.
In the light of these massive protests, the music industry which is the driving force behind the Article 13 upload filters is in damage control mode trying to downplay the effects of the measures it is calling for. Their fairly ridiculous attempt to position article 13 as “pro memes and mashups” was quickly debunked on social media and by European copyright scholars. The fact that scholarly opinion on the proposed changes, which largely overlaps with the perception by users, has been completely ignored by the members of the JURI committee is one of the driving forces behind the attempt to stop the JURI negotiation mandate this week.
So who is in favour of the measures approved by JURI and who is against them? Who should European lawmakers listen to when it comes to deciding on changes to the copyright regime that will have far-reaching effects for users, creators and businesses alike?
In favor of the JURI mandate: The position adopted by the Legal Affairs committee is supported by pretty much any organisation representing rightsholders and professional creators that is active in Brussels.
Against the JURI mandate: On the other side of the Debate we find the Civil Liberties and Consumer Protection committee of the European Parliament (both of which had adopted a more reasonable version of Article 13), more than 50 civil liberties organisations, organisations representing technology startups and software developers who all stand to lose from the proposed measures. Equally important are the warning voices coming from academics at Europe’s leading IP research centers, a group of the original architects of the Internet, the United Nation’s special rapporteur on the freedom of expression. Other critical voices come from creators, the Wikipedia community and hundreds of thousands of Internet users who have been contacting their MEPs via saveyourinternet.eu (and other platforms).
Most of these voices have been ignored by the debate in the JURI committee which has shown a particular disregard for independent expertise throughout the process. It is now up to all members of the European Parliament to decide if the Parliament should enter into negotiations with the Member States and the Commission based on the narrow view taken by the members of the JURI committee or on a view that takes these voices into account.
This morning the Legal Affairs Committee of the European Parliament (JURI) voted on the report on the proposed Copyright in the Digital Single Market Directive. You can read a broader analysis here.
JURI gave educators across the EU a gift in the shape of an improved educational exception – with a poison pill inside. The Compromise Amendment (CAM6) proposed by Rapporteur Voss was accepted. We are happy that the Commission’s flawed proposal for an exception that secures digital uses for education purposes has been fixed. Educators are given clarity about uses in digital environments, and the scope of the exception has been increased beyond educational establishments and their premises. There is also improved text that makes a contractual override of the exception impossible.
Yet, the poison pill remains: the Commission’s proposal in article 4(2) to give priority to licenses over the exception was adopted. We managed to secure improvement in the phrasing of this license priority: the licenses have to be tailored to the needs and specificities of the educational establishments. Nevertheless, a Member State can decide to switch off the exception, provided that a licensing scheme is in place in a given country. This means that over the coming years we could benefit from a new exception only to see it disappear – which would leave educators depending on remunerated licensing schemes.
Problems with license priority go beyond education
Licensing priority spells problems, not just for educators. It creates a precedent for overrides to any public interest copyright law exceptions. As such, it is a great victory for rightsholders. This reminds us of the “Licenses of Europe” process, in which the Commission and rightsholders tried to convince everyone that licensing is a much better tool for securing user rights than exceptions to copyright. While they failed to do so then, they seem to have won some ground in the copyright directive.
This dangerous precedent for users’ rights is even more alarming when we consider that it goes against the CJEU ruling on the issue of license priority. The Court of Justice of the European Union knew that giving priority to license offers was indefensible, as it would negate much of the substance and effectiveness of the exception or limitation and it would deny the user the right to benefit from the exception. Thus, the Court decided that the 3-step test did not require them to allow rightsholders to unilaterally force users to stop relying on the copyright exception when those rightsholders offered to conclude a licensing agreement with them. This decision represented a major win for users’ rights, and more so because in the US users may not be able to rely on fair use when reasonable licensing options are available.
If we round up today’s vote for education we are happy about the improvements to the exception but mourn what could have been and fear the consequences of this license priority. The fight is not over yet. There will possibly – likely – be a plenary vote in the Parliament where this article, as well as the other disappointing results on articles 11 & 13, could still be challenged.