As Council & Parliament edge towards finalizing positions, Article 13 remains a mess

Closeup of Art 13 flowchart
Art.13 in 3 flowcharts
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As the summer break draws closer both the European Parliament and the Council are intensifying their efforts to wrap up their positions on the proposed Copyright in the Digital Single Market directive. In both legislative bodies Article 13 (the upload filters for online platforms) remains the main stumbling block and both the Bulgarian Council presidency and the EPs rapporteur (MEP Voss) have have set deadlines this week to wrap up the discussion on Article 13.

Last week (after yet another inconclusive meeting on Article 13) MEP Voss has asked the political groups to provide him their final written comments “on the MAIN and MOST IMPORTANT open issues” by Wednesday the 23rd. On the same date the Bulgarian Council presidency has scheduled an attaché meeting to discuss the latest compromise proposal.

In the light of these (final?) attempts to wrap up the discussion it is important to take another look at how the discussion has evolved since the Commission published its proposal and how the 3 different versions of Article 13 compare to each other. In order to do so we have analysed the internal logic of the Commission proposal, the last Bulgarian compromise proposal and version 6 of the European Parliament’s Legal Affairs committee compromise text and depicted the most important elements in a series of flowcharts (see below). Even a casual glance at these makes it clear that both the Council’s and the Parliament’s changes to the text have resulted in vastly more complex versions.

Commission proposal: Simple language that creates a legal mess with lots of uncertainties.

Compared to the other two versions the Commission’s proposal is a thing of beauty. The article consists of three relatively concise paragraphs which results in a relatively straightforward flowchart: Continue reading

Education: the 5 Most Unfair Licence Conditions

A woman shouting into a man's ear-trumpet. Wood engraving.
Last call to avoid falling into a black hole!
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We recently released our new report “Educational Licences in Europe”, where we analyzed 10 collective agreements in Finland, France, and the United Kingdom. This study shows that educational licences for using copyrighted content in schools include many terms and conditions that restrict users’ rights and that are unfair or unreasonable.

While the small number of agreements analyzed in the study does not allow us to make any safe conclusions with respect to the different licensing schemes, we could not avoid noticing that (some of) the most unfair terms identified in this study are contained in the British licences. And that is interesting to highlight because licences prevail over the teaching exception only in two EU countries: United Kingdom and Ireland (source: IA on the modernization of copyright rules). 

One possible explanation for this apparent correlation is that the UK legal framework prevents licensees from refusing licences that contain terms and conditions that will act against their best interests. Educational establishments, or governmental institutions acting on their behalf, are “forced” to accept any licence that is easily available in the market, if they want to continue making the uses that were protected by such exceptions, and that become suddenly covered by the licences. In this context, right holders are “free” to almost unilaterally reshape the terms and conditions of educational uses made under their licences.

If this is not enough to cause concern among lawmakers, here are the 5 most questionable terms and conditions identified in the agreements analyzed in our study:

1. Licensor can inspect materials, secured networks and storage platforms used by schools, without being required to keep the information obtained confidential

Does not prevent licensors from disclosing and making commercial uses of sensitive information, such as data related with the performance of students

2. Licensor can enter a school’s premises at any time, provided it gives reasonable notice, to ensure compliance with the licence and inspect procedures

It can disrupt the normal operation of schools

3. Schools have to take reasonable steps to ensure that licences are not infringed by teachers, students and third parties

It creates an excessive burden on schools that have to start policing teachers, students, parents and third parties

4. School must own, or subscribe to, a copy of the materials it copies, scans or uses under the licences

Does not allow uses of materials owned by teachers and students or borrowed from a library or legally obtained

5. Digital copies may not contain hypertext links (or the like) to any external or third-party website

It prevents teachers and students from comparing, verifying and updating information and knowledge

Solutions

To avoid spreading these licensing conditions across Europe, lawmakers should consider adopting the following measures:

  1. Prevent license priority, or provide only for limited priority to those contractual arrangements that are mutually agreed by the parties.
  2. Render contractual provisions that restrict the scope of protection afforded by a copyright exception or limitation unenforceable.
  3. Give schools access to affordable mediation and litigation, to challenge with ease the terms of a licence that are thought to be unfair or unreasonable.
  4. Assess the need to submit educational licences to public regulation.

 


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

Voss’ unbalanced approach to the education exception

The Shop of the Bookdealer Pieter Meijer Warnars on the Vijgendam in Amsterdam
legislators should care about teachers, not publishers
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During the recent high-level conference on copyright in higher education, which we organized with the European Trade Union Committee for Education (ETUCE) and the European Federation of Education Employers (EFEE), we had the pleasure of hosting MEP Alex Voss. It was a rare opportunity for us to hear the rapporteur for the Copyright in the DSM Directive dossier speak about the educational exception. Here is our critical take on this speech, which gives a good sense of how Mr. Voss sees the issue of copyright and education.

Mr. Voss defined the general question as defining “when to pay, and when to use copyright protected works freely”. We believe that we will never have good copyright for education if we see it as just an issue of transfer of funds.

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”).

The neverending story: Article 11 must be deleted

Caïn venant de tuer son frère Abel, by Henry Vidal
Enough is enough!
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We still can’t believe how bad the last plan of MEP Axel Voss for the press publishers right is. At the end on March 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. It’s time for everyone to stand up and say again, “enough is enough.”

Today, Communia and 55 other organizations, including associations of European public institutions, companies and start-ups, journalists and libraries, news publishers and civil society organisations sent a letter to MEP Voss trying again to present the obvious and well documented arguments against the introduction of a new right for press publishers. The signatories hold that that a neighbouring right for press publishers and news agencies will neither support quality journalism nor foster the free press. Rather it will lead to massive collateral damage and a lose-lose-situation for all stakeholders involved.

Unfortunately, MEP Voss has his very own definition of the term “compromise”. With regard to Article 11 it is especially unfortunate since this is one of the few contentious issues where a real compromise has already been identified: that is, the approach presented earlier by MEP Voss’ predecessor MEP Comodini (and also contemplated in the Estonian presidency) that would rely on a presumption that publishers are the rights holders, thus making it easier for these entities “to conclude licences and to seek application of the measures, procedures and remedies.” But this idea was simply abandoned by the current rapporteur. The signatories of the letter agree that given the empirical evidence presented thus far that the right will not accomplish what it sets out to do – not to mention the detrimental effects on journalism and access to information, Article 11 must be deleted.

 

Council: Member States close to adopting a copyright maximalist position

Twee tijgers sluipend door het gras
Danger looming in the Council
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It is still unclear if the Bulgarian Council presidency will manage to get the member states in line to agree on a general negotiation position at the COREPER meeting scheduled for this Thursday. Under pressure from the Bulgarian presidency (or rather those who put pressure on them), the member states seem to be moving towards a common position. Last week’s working group meeting appears to have resolved most of the controversies around Article 3a (optional text and data mining exception) and Article 11 (press publishers rights). Article 13 remains the main sticking point, preventing the member states from agreeing on a negotiation mandate.

So what’s the status with regards to these 3 articles and where do the member states stand on them?

Article 13: Continued divisions over the scope of #censorshipfilters

In spite of the significant doubts that many member states expressed last year regarding measures targeting open online platforms contained in Article 13, the article has survived the subsequent rounds of discussions in the Council nearly intact. This seems mainly due to a pivot by the German government which is now backing censorship filters – even though the coalition agreement that underpins the current government is highly critical of such measures.

While there is agreement in principle, the Member States are still spit on the scope of the article. The maximalist axis of France, Spain, Portugal and Italy is backing a broad implementation of the article, while most other member states (including Germany) seem to be favouring a narrowing down of the scope of the services that would be required to filter. Lack of consensus on the scope of Article 13 seems to be the main obstacle that prevents the Bulgarian presidency from closing the file.

Article 11 map (April 2018)
Member States (in red) supporting the introduction of censorship filters for online platforms (own research)

As we have argued before, rushing Article 13 across the finish line carries substantial risks to the European internet economy and to our freedom of creative expression. Continue reading

Now even the rightsholders agree: Article 13 is dangerous and (and should be deleted)

Aanval van de Giganten op de godenwereld
Article 13 will hurt both users and creators
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Now that the Bulgarian Council presidency seems to have decided that it is time to wrap up the discussions on the DSM proposal and push for a political decision on a negotiation mandate, people are getting nervous. Late last week a whole assortment of organisations representing rights holders from the AV industry (organised in the creativity works! coalition) have sent a letter to Member State ministers and representatives, outlining their concerns with the latest Bulgarian compromise text. The document mainly focuses on Article 13, and what they have to say about that article is rather interesting (and surprisingly in line with positions that we have been arguing all along).

The overriding concern expressed by the rightsholders in their letter is that some of the more recent changes introduced in the council would turn Article 13 from a magic weapon against a few online platforms into a mechanism that threatens to further empower these very platforms in a way that does not benefit rights holders. In response to this, Creativity Works! (CW!) argues for further strengthening some of the most problematic aspects of Article 13.

We have long argued that Article 13 seems to be designed to benefit the big dominant online platforms, as it will entrench their market position. For smaller companies compliance with the filtering obligations will be difficult and costly while the main targets of Article 13 already have filtering systems in place (such as YouTube’s Content ID), and it is a welcome sign to see rights holders waking up to this reality.

For us it has been clear from the start that Article 13 will not achieve its stated goals. Instead the filtering obligations will cause tremendous harm to the freedom of expression and to open platforms that operate in fields that have nothing to do with the distribution of entertainment products. For this reason we think that the only responsible way to deal with Article 13 is to delete it and start over with a discussion about how we can best ensure that creators can be fairly compensated for their work. (Note that in this discussion most of the members of CW! are likely to be part of the problem rather than the solution as CW! has very little representation from actual creators.)

And while CW! is not joining us in our call to delete Article 13, their letter does illustrate our argument that adjusting general concepts of copyright law in order to address the concerns of specific groups of stakeholders is utterly irresponsible in the light of the big (and often unintended) consequences such an intervention can have.

Case in point: the re-definition of right of communication to the public. We and others critical of Article 13 have long argued that Article 13 would expand the right of communication to the public. Within the Commission’s proposal this aspect of Article 13 was hidden away in a recital, but over the successive drafts it has become more explicit. This seems to have led to the sudden realisation by rights holders that such a re-definition of this important right can also negatively affect them. In their letter they wrote on the last Bulgarian compromise proposal:

It would limit the scope of the right of communication to the public by incompletely applying Court of Justice of the European Union (CJEU) case law and setting into stone in Article 13 only certain criteria developed by the Court. This approach would roll-back the CJEU’s case law, which has repeatedly confirmed that a broad interpretation of the right of communication to the public (CTTP) is necessary to achieve the main objective of the Copyright Directive, which is to establish a high level of protection for authors and rights holders. CW! recalls that the exclusive right of communication to the public, including the making available right, as enshrined in EU law (and further clarified by the Court), has emerged as the bedrock for the financing, licencing and protection of content, as well as its ultimate delivery to consumers in the online environment. The Court has also emphasised, in its recent judgments, that in order to determine whether there has been a CTTP, several complementary criteria must be taken into account, which are not autonomous, but are interdependent. Any proposals that entail a selective application of the Court’s jurisprudence, or that imply a narrowing of the scope of the right of CTTP, would be contrary to the protection required by current EU and international law.

While we do not agree that the current draft would limit the scope of the CTTP right, this passage illustrates the dangers of carelessly fiddling around with core legal concepts that underpin the EU copyright framework. Continue reading

Vox Scientia is strong – but the current copyright reform will block the free circulation of knowledge

The ongoing and neverending EU copyright reform is often depicted in the way that the main issues are money, value distribution, and how to protect existing business models. These are of course valid concerns, but they shape the whole discussion in very narrowly-framed way. The most important question is how copyright reform will influence various groups of stakeholders, not only when it comes to businesses that want to make money, but also for the individuals and organisations that both need access to information and content, and who also wish to create and share.  And when it comes to science and knowledge sharing (not only in academia, but generally innovation) the answer is very clear – the proposal presented by the European Commission will block the free circulation of knowledge.

Vox Scientia is a group of organisations (including Communia) and individual educators, researchers, librarians, cultural heritage professionals, and students who are standing up and aiming to be the ‘Voice of Knowledge’ – ‘Vox scientia’ – in this debate. The parties engaged believe in a world where all people are able to freely exchange ideas, create, learn, and contribute to the global knowledge commons. The aim of the initiative is to mobilize people to stand up against dangerous and restrictive copyright  solutions backed by the European Commision. Continue reading

Proposed Council compromise on TDM: still not good enough

De zanderij
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