The European Union is coming closer to approving a mandatory educational exception that may address some of the limitations copyright law places on everyday educational activities. However, the current proposal for a Directive on Copyright in the Digital Single Market would allow licences that are easily available in the market to take precedence over the educational exception.
This spring the ongoing effort to modernize the outdated copyright rules enters into the decisive fase. It is widely expected that both the European Parliament and the EU Member states will their position on the proposed Copyright in the Digital Single Market Directive. 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.
Against this backdrop we are organising European Copyright Action Days on 19-21 march in Brussels. During these days we want to highlight the broad opposition of civil society, libraries, the users industry and many others concerning the restrictive aspects of the copyright reform proposal. During these days activists will convene in Brussels to discuss with lawmakers and advocate for a more future proof reform and to raise attention for the dangers of the proposed measures. Continue reading →
The Bulgarian EU Presidency is under immense pressure to move the copyright reform forward. Yet it seems like the country is too timid to defend its own interests. A new campaign kicked off in Sofia to try and change that.
Somewhere far out in the uncharted backwaters of the unfashionable end of the EU lies a small unregarded country—Bulgaria. In 2018 this Member State will not only be known for resonant voices and rampant corruption, but also for its prominent role in the EU copyright reform. While it holds the rotating Presidency of the Council of the EU it is up to the Bulgarian government to propose new compromises and bring the discussion forward in order to reach a common position between Member States.
But the Council is not Bulgaria’s only copyright stronghold at the moment. The reform falls in the competences of the country’s Commissioner Mariya Gabriel, and 10% of the votes in the lead European Parliament committee (Legal Affairs) are to be cast by MEPs from parties currently making up its governing coalition.
The Bulgarian Compromise, a French Affair?
At the end of 2017 the Council negotiations hit somewhat of a stalemate and the Estonian Presidency was forced to give up, unnerved after trying for months to square the circle between the content industry’s bold demands and fundamental rights for users and the public.
Apparently the Bulgarian Presidency decided to kick 2018 off with a fresh approach. They circulated questions on the most controversial articles of the reform among Member States and then seemed to be proposing a new compromise.
After more than a year of discussions MEP Axel Voss has finally come forward with his ideas about one of the most controversial aspects of the EU copyright reform proposal. On Wednesday he shared his compromise proposals for Article 13 of the proposed copyright in the DSM directive, that deals with filtering measures aimed at online platforms. The “compromises” drafted by MEP Voss make it clear that with regards to article 13 he has chosen to do the bidding of the music industry at the expense of users, open platforms and pretty much the rest of the internet.
Let’s focus on two main aspects of the approach that Voss is backing (for a more comprehensive analysis of his compromise see Julia Reda’s excellent write-up here). What would the new rules mean for users sharing materials via platforms, and what would the new rules mean for online platforms?
Online platforms: License or cease to exist!
In the version supported by MEP Voss, article 13 establishes two different obligations for online platforms that allow user uploads. In a first step, all platforms are required to obtain licenses from rightsholders. Those platforms that hold “significant amounts” of content also need to take “appropriate and proportionate measures to ensure the functioning of these agreements”. In the case that platforms do not have licensing agreements with rightsholders they need to take “appropriate and proportionate measures to prevent the availability on their services of works or other subject-matter”.
These rules would effectively end the current situation in which online platforms are not directly responsible for content that their users upload. The new rules would mean that all online platforms “that store and provide access to the public to copyright protected works or other subject-matter uploaded by their users” (which means pretty much all platforms) will be directly responsible for the content uploaded by their users and must obtain licenses from (unspecified) rightsholders. If they don’t (which is a strange condition given that all platforms must do so) they must implement filtering rules that prevent all copyrighted works from becoming available on their services. In other words, platforms must obtain licenses from rightsholders or they must cease to exist (as it is somewhat hard to make a business case for a platform on which nothing is available). Continue reading →
One of the biggest shortcomings of the discussion on copyright is that most of it seems stuck in a fairly outdated creators vs users dichotomy. Copyright laws around the world are generally structured in such a way that they grant exclusive rights to creators and try to balance these with a limited set of rights for users (in the form of exceptions or limitations to copyright). Based on this design it is widely assumed that more (or stronger) exclusive rights benefit creators and that more (or broader) exceptions to copyright benefit users.
This conception is problematic on a number of levels. For one it is clear that creators benefit from user rights that ensure that users have a basic level of access to culture through educational systems and via public institutions such as museums and libraries. On the other hand users benefit from the exclusive rights granted to creators as they incentivise the very production of culture and knowledge that they want to access.
A more fundamental challenge to this general understanding of copyright is posed by the fact that the roles of users and creators are not mutually exclusive, but overlapping. Many creators are also users of copyrighted materials and the other way around. The technological development of the past two decades has contributed to this blurring of the boundaries between creators and users. Digital technologies greatly facilitate both the creative re-use of existing works and the distribution of the resulting new works. This development has resulted in the emergence of the (somewhat nonsensical) category of “user generated content” and concepts like the “prosumer“.
These concepts deal with users becoming creators, and there are relatively straightforward answers to the challenges posed, such as the need to introduce an exception for user generated content in the EU copyright framework that we have been advocating for. But there is another more interesting side of the coin: creators becoming users. While it is true that creators have always appropriated the works of those authors who came before them, these dynamics have been turbocharged by the digital revolution. Creators have entire libraries of content at their fingertips, and the tools to manipulate, incorporate and build on existing works are becoming increasingly sophisticated. These are exciting times to be a creator, but this new reality also brings creators into contact with the limitations to their creative freedom imposed by copyright law. Continue reading →
We have been arguing for quite sometime now that handing out the power to define the scope of users rights to right holders – in the form of license agreements that they can (almost unilateral) draft and frame as they wish – is bad. Really bad: licenses fragment the legal framework that mandatory exceptions try to harmonize; licenses contain abusive terms or impose obligations on users that are not foreseen in the laws; and licenses have a huge impact on national budgets.
Unfortunately, this message has not come through to all, or not everyone understands what we are saying, or worse right holders have done a nice job in convincing lawmakers that’s the right way to go.
Allowing licenses to override exceptions is the only treat that publishers want
The current copyright reform carried the promise of being a landmark in the history of the EU copyright law. Lawmakers would finally show they understand that copyright is not superior to any of the other fundamental rights that every constitutional law across Europe grants to their citizens, and would make things right. Sadly, however, the prospects of that being the case for education are now very low.
MEPs passed the last year negotiating the scope of the educational exception. On the one hand, those who side with schools, teachers and students, proposed amendments to eliminate some of the constraints that the educational exception contains. On the other hand, those who side with publishers have been pushing for more restrictions, in order to narrow down the scope of the proposed exception even further.
Not enough MEPs understood that the most problematic aspect of art. 4 is not the scope of the mandatory exception (n.º 1) but the fact that Member States may choose not to apply such mandatory exception if licenses covering those uses are easily available in the market (n.º 2).
It is our understanding that publishers could not care less about the scope of the educational exception, provided that they can rule out the application of said exception with their own license agreements. This is copyright “taking the back seat”, as Professor Niva Elkin-Koren would put it.Continue reading →
Today the Copyright working group of the Council is meeting for the first time under the new Bulgarian presidency. The agenda consist of discussions about articles 11 (press publishers right) and article 13 (upload filters for online platforms) and it appears that the Bulgarian Presidency is planning to push ahead on both of them in line with the one sided approach taken by the Estonian presidency. In the light of this meeting Pirate Party MEP Julia Reda has released a video featuring a number of MEPs from across the political spectrum speaking out against mandatory filtering of user uploaded content:
In the video the MEPs make it clear that filtering technology that would be mandated under article 13 will be used to limit the free expression of internet users in the EU. They also point out that it is highly problematic to require large corporations to install filtering technology that they will then operate outside of any public oversight and without any ability for meaningful recurse by normal users.
The examples provided by the MEPs in the video are a welcome reminder that it will not be enough to prevent upload filters from becoming mandatory by deleting article 13 from the proposed DSM directive, but that we we need to regulate the application of existing filtering technology and that that we finally need to positively define what rights users have when it comes to re-using existing works to express themselves online.
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.
With the arrival of 2018 the discussions of the Proposed Copyright in the Digital single Market Directive enters into its third year. After more than a year of discussions in both the Parliament and the Council, it is likely that 2018 will at the minimum see final positions from both institutions. Depending on how quickly these positions will be established we may even see the adoption of the directive in 2018. To get everybody up to speed here is a quick refresher of what is at stake in 2018:
1. The publishers right must die!
Form the start the idea of granting press publishers a neighbouring right (an extra layer of copyright) in their publications has been one of the most controversial parts of the Commission’s proposal. The idea, based on laws that have failed in both Germany and Spain, is so deeply flawed that there is almost no one from the academic community who is willing to argue in favor (there are of course lots of academics who oppose it). Even worse, in the course of 2017 it has become clear that both the European Parliament and the European Commission have tried to lock away self-commissioned studies that clearly show that the new right not only would be ineffective at directing views (thus, funds) back to publishers, it would also harm media pluralism and access to information.
In spite of the overwhelming amount of evidence speaking against it, and even though its original sponsor (Commissioner Oettinger) is no longer in charge of the dossier, the idea of granting press publishers more rights in order to economically strengthen them refuses to die. It is time that MEPs and the Member states realize that adopting laws based on wishful thinking is the opposite of evidence based policy making, and refuse to create additional rights for publishers. This should be easy as there is an alternative proposal that would strengthen the legal position of press publishers without threatening the freedom to link.
2. Real legal certainty for Text and Data mining!
One of the core problems of copyright systems without a flexible exception (like fair use) is that everything not specifically permitted in the text of the copyright law will be deemed an infringement. This has resulted in an unclear legal status regarding Text and Data mining (letting computers read and interpret texts and other data). Since most forms of text and data mining require the making of copies, rights holders argue that text and data mining needs to be licensed, even if the entity engaging in TDM has legal access to the text and/or data to be mined. Continue reading →
Contrary to what the negotiating parties expected (and what many civil societies organizations feared), the Mercosur-EU Free Trade Agreement (FTA) was not signed during the World Trade Organization (WTO) Ministerial Conference that took place at the beginning of December in Buenos Aires. Thus, the signing of the FTA that has been negotiated for almost twenty years was postponed once again. Over this time the negotiations were frozen during the era of the leftist governments in South America, but regained speed after the arrival of neoliberal governments to Brazil and Argentina.
Like many other multilateral agreements that have been negotiated in recent years (TPP, TTIP, etc.), the Mercosur-EU FTA covers a large number of areas (not all strictly related to trade) ranging from the exchange of goods to capital movements, phytosanitary measures, electronic commerce and intellectual property (IP). The area of negotiation related to IP is extremely broad, including patents, trademarks, geographical indications and copyright, among other topics.
From TRIPS to TRIPS Plus
In most of the issues related to IP, the Mercosur-EU FTA goes beyond the international obligations imposed on the countries in 1994 with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in the context of the creation of the World Trade Organization. TRIPS established a minimum regulatory floor on IP that forced a large number of countries, including those of the Mercosur, to modify their laws, establishing restrictions on the circulation of knowledge and negatively affecting the public domain. In the field of copyright, TRIPS established a minimum copyright term of the author’s life plus 50 years, meaning that countries like Uruguay, which at that time had a term of only 40 years, was a major change. TRIPS also forced the countries to establish criminal penalties for IP infringements conducted on a commercial scale, as well as to protect software using the same regulatory framework as that applied to literary works. While some of these measures were already established in the Berne Convention and other treaties administered by the World Intellectual Property Organization, TRIPS stipulated economic sanctions for countries that did not comply with the obligations, which resulted in rapid adaptation to a new regulatory framework. Continue reading →