Today we publish the findings of a new study carried out by Teresa Nobre that intends to demonstrate the impact exerted by narrow educational exceptions in everyday practices. She accomplishes this purpose by analysing 15 educational scenarios involving the use of protected materials under the copyright laws of 15 European countries: the Czech Republic, Denmark, Estonia, Finland, France, Germany, Italy, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Spain and the United Kingdom.
Almost no case law was analysed, and uses permitted under licenses, namely extended collective licenses, are not indicated here. Thus, the study does not give a detailed picture of all the countries under analysis.
Materials available for educational uses
This study confirms what we have known for a long time: that not all copyrighted works are treated equally in the context of education. Some educational exceptions exclude the use of certain types of works (textbooks and academic books in France and Germany, dramatic works and cinematographic works in Denmark and Finland and musical scores in France and Spain). Other laws contain restrictions in relation to the extent or degree to which a work can be used for educational purposes, thus creating obstacles to the use of entire works, namely short works (e.g. individual articles, short videos and short poems) and images (e.g. artworks, photographs and other visual works).
One might think that the debate on the ancillary copyright for press publishers is over – both JURI Rapporteur MEP Therese Comodini Cachia and IMCO Rapporteur Catherine Stihler rejected the Commission’s proposal to provide publishers with a competitive advantage by using copyright legislation. Unfortunately, even with such progressive voices, the misconceptions about the ancillary copyright were still visible even during last weeks Legal Affairs Committee hearing , where MEPs seemed not to understand that aggregators help news outlets gain a larger audience. And the debate in media on this issue was never more heated and polarized.
Strong voice of El Pais
El País, the largest and internationally most renowned Spanish daily newspaper, has published an op-ed strongly criticizing the idea of introducing the ancillary copyright for press publishers:
But anybody who thinks that those rights can be turned into a fortress from which to impose obligatory and inalienable fees is mistaken. This is a model that has been shown to fail in Germany, in 2013, and in Spain in 2014. Then, efforts to impose an obligatory fee on Google for the use of links to news stories provoked a major fall in web traffic for the Axel Springer group and the closure of Google News in Spain.
What is crucial, El Pais understands the value of digital technologies for press publishers, while many others, especially big German publishers, threat internet as a threat for their business model.
Thanks to the new digital technologies, we are able to reach millions of people we would never have been able to using the old, traditional print methods, while at the same time offering our readers more and better stories in real time and in more attractive formats.
The business of selling only print newspapers is over and will not be back. What publishers should do is to is adjust their business models to benefit from opportunities created by internet, and not asking for more (copy)rights without providing any evidence that more right actually help them (instead of just hurting others). El Pais voice, coming from a country with first-hand experience of the ancillary copyright, is invaluable in this ongoing debate. Continue reading
Catherine Stihler, Rapporteur of the Committee on the Internal Market and Consumer Protection (IMCO) released her draft opinion on the proposed Copyright in the Digital Single Market Directive. In this opinion, Stihler rightly states that article 13, which proposes to implement content filter mechanisms that would block some of users’ uploads, fails to achieve its purpose. She tries to make sure rightsholders and creators would receive a fair and balanced compensation for the exploitation of their work without negatively impacting the digital economy or internet freedoms of consumers. Acting on this, Stihler tries to fix article 13. However, we believe that the only appropriate response is to delete it altogether.
The filter must go
It is commendable that in her opinion MEP Stihler explicitly says that any attempt to address the value gap cannot be enforced if it has a negative impact on fundamental rights and internet freedoms of consumers. This is something the potential beneficiaries of the proposed article seem to ignore.
Explaining why the upload filter must be removed, MEP Stihler states that filter machines are not capable nor suitable to take into account user rights such as exceptions and limitations. This is something all the opponents of the upload filter, including COMMUNIA, have pointed out before. Therefore in her amendments she rightfully removes all references to the ‘effective’ recognition technologies, which would make the Directive text more technology neutral and future-proof. Continue reading
Wouldn’t we all want to know how the copyright reform proposal gained its current shape? Was it at a roundtable of sages? Did someone knock Commissioner Günther Oettinger’s head and the proposal sprung out? We have filed an access to documents request (FOIA) to find out what the EC legal services’ opinion was in this process.
Chances are we will not have full clarity on the evidence that substantiated the proposed directive on copyright in the digital single market. After European Digital Rights filed a request to access the correspondence between Commissioners, cabinets and services on the proposal for a copyright Directive in October 2016, the recent response was that there is 1 (ONE!) email that meets the criteria. It would seem that the Commission have a strong oral tradition and excellent collective memory if this is really the only recorded evidence to attest to the quality of the process.
To make things worse, the email cannot be revealed because “the disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure”. We believe that the public interest in knowing how absurdities such as new rights for publishers or the upload filter found its way to the proposal is indeed overriding the secrecy of the only email that has ever been exchanged on the topic. Obviously EDRi has filed a confirmatory application to review the handling of the request that is yet to be considered by the EC.
To learn more about the legality of the most problematic parts of the proposal, Centrum Cyfrowe, COMMUNIA member, filed a FOIA to access the European Commission’s legal service opinion(s) on the drafts of the proposal on February 13, 2017. With the two processes, the Commission has a chance to make the right choice and spill the beans on their intel and sources. If the European Commission decides otherwise, we will be left wondering if the proposal is a result of some intense industry lobbying, or perhaps of unpreparedness of DG Connect to properly address challenges of the 21st century.
Refusal will give a bad name to the EC legal services that could have let out a really bad piece of lawmaking that contradicts existing regulation as well as the EU case law. Moreover, the Commission will prove again that it is one of the least transparent European institutions while keeping its finger on the trigger of change that will shape our digital lives for many years to come.
Coincidence has written a postscript to our yesterday’s post Good news! Quality journalism doesn’t need the snippet levy. A recent tariff on how much linking will be charged for revealed by the Spanish Reproduction Rights Centre (CEDRO) shows that publishers’ appetites are great and likely to ruin online access to content we need and like.
CEDRO decided that per each active user per day it wants to charge a daily rate of € 0,05044854. We can endlessly discuss if this arbitrary rate is a lot or not much per user-day. But this is where the economy of scale of 5 cents is pivotal – Menéame, a Spanish aggregator has an average of 139 thousand unique users accessing their site per day. So 5 cents scales up to a quite substantial 7+ thousand euro per day and that to an astronomic 2,56 million euro per year.
The problem is that this is 20 times as much as Menéame’s annual turnover (125 thousand euro). In short, a piece of legislation aimed at Google chokeholds smaller enterprises while reinforcing the giant’s dominant position.
What is perhaps worse, we have landed in this mess based on false assumptions: whatever affects the traffic to news content (could it be the decreasing quality of the news and proliferation of meaningless clickbait? Hmmm…) it is not the aggregators. As research shows they in fact assist users in optimizing their attention economy and in result sustain the traffic.
Based on these false assumptions the publishers want to racket sums that have nothing to do with the economic situation or the scale of operations of the aggregators in a strive to compensate an imaginary loss by ripping off those who in fact help news readership. By doing so the rightsholders resemble thugs that raid a bar and extort payments only because the bar is in their neighborhood.
Say no to the racketeer tax in EU!
Now, thanks to the European Commission’s copyright directive proposal we are facing the danger of that mess spilling all over Europe. If you feel you’d like to do something about this, write an email to Members of the European Parliament from your country to kick off article 11 from the copyright directive proposal. There is still time to stop this nonsense.
As we vocally oppose the proposed new rights for press publishers, we’re often asked what could be done instead to ensure the quality of journalism in the digital era. The good news is there are examples of how good journalism could be assisted. The even better news is that these solutions do not require such level of protectionism as the European Commission seem to think they do.
Scaling up a horrible idea
To recap the issue: the new rights for publishers, called also the ancillary copyright or the snippet levy, would require online services to pay for linking to articles that are up to twenty years old. Almost every news link with an explanatory extract (a snippet) placed in a search engine would be subject to a fee. This measure included in the proposed directive on copyright in the digital single market, despite a spectacular failure of similar mechanisms in Spain in Germany, is heavily backed by powerful media outlets. Their argument: aggregators such as Google news make money on ads placed by the content they aggregate, while the newspapers suffer from the disruption technology brought.
In January 2017 we know better than ever that we need quality journalism as one of driving forces behind democratic debate and choices people make casting election ballots. And we all know it costs. But the assumption that the snippet levy will work if enough countries are bullied into adopting it through a European directive is the textbook example of insanity – it is employing the method that had already failed and expecting a different result. Instead, we should be looking into other European countries where non-regulatory measures improving business models are adopted, and search for an inspiration from places where that level of public interventionism does not happen and publishers have to adapt to the digital age in other ways.
It’s Copyright Week and today’s topic is “Transparency and Representation”. Copyright policy must be set through a participatory, democratic, and transparent process. It should not be decided through backroom deals, secret international agreements, or unilateral attempts to apply national laws extraterritorially. Unfortunately, in many aspects the European Union is not meeting such standards.
The European Union began to consider updating its copyright rules in 2013. In September of last year the European Commission released its proposal for a Directive on Copyright in the Digital Single Market. Unfortunately, the plan fails to deliver on the promise for a modern copyright law in Europe. It also does not take into account results of consultations that the Commission has conducted.
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. This information should be broadly available for public inspection, and public institutions should solicit and fairly incorporate feedback from a wide range of stakeholders. The process undertaken by the Commission hasn’t lived up to these expectations.
The debate whether the copyright reform in a proposed shape would be beneficial for Europe or not is now a key topic for digital rights organizations. But what do measures suggested by the European Commission actually mean? COMMUNIA and EDRi have jointly developed a Copyright reform guideline to the “legalese” of the draft directive. We present key issues and solutions that should be taken into consideration by the Members of the European Parliament (MEPs) who will soon discuss the proposal.
We believe that the current reform is a chance to empower users across Europe to access culture in ways that have been proved not to undermine authors’ revenues. This would boost the creation of new business models that will support authors, creators and journalists, and not only powerful intermediaries such as book publishers and record companies.
The copyright reform should also safeguard freedom of expression and privacy by curbing the surveillance capacity of filtering technologies. The Commission’s proposal fails to take advantage of these opportunities to secure a better future for Europe and European culture.
This week COMMUNIA founding member Kennisland launched CopyrightExceptions.eu, a website that collects information related to the national implementation of 22 exceptions and limitations to copyright in the EU Member States. CopyrightExceptions.eu provides much needed clarity of the current patchwork state of implementations of the exceptions open to Member States.
Exceptions represent the user rights in EU copyright
While over the years a number of studies have been undertaken to provide insight into the state of implementation of the possible exceptions, there was no easily accessible, up-to-date information resource about user rights across the European Union. In the past few months Kennisland collected and combined the information it could find from multiple sources and had the results reviewed by national experts. Information was gathered about whether an exception is implemented and whether the exception requires remuneration. The tool also includes links to national acts and any other comments on the specifics of the implementation.
User rights are not looking good
While the Commission, based on the recently leaked impact assessment and dito draft directive, aims to solve parts of this non-user friendly patchwork, it is not looking good. The draft directive provides for only a limited TDM exception that will scare away data start ups, and strange licensing requirements in a new additional exception for education. It also doesn’t do much to harmonise important exceptions for the daily lives of citizens (such as freedom of panorama), or cultural heritage institutions (to make out-of-commerce works available). We don’t feel that the forthcoming directive will at all champion a true ‘Digital Single European Market’.
Kennisland, and COMMUNIA with them, believes that a single market means that we need to ensure that all participants in that market have the same rights: rights of creators and rights of the user, and equal in all member states. The directives unfortunately do not require the same harmonisation for user rights as it provides to rights holders.
We need a better harmonised copyright for users in Europe, and we urge you to use CopyrightExceptions.eu to experience for yourself how diverse the landscape of exceptions is, and how far we still have to go.
We happily invite you to the event Copyright Reform: Unlocking copyright for users? that will take place on September 8 in Brussels. The event is hosted by MEP Therese Comodini Cachia and MEP Carlos Zorrinho, and co-organised by COMMUNIA and EDRi.
Join us to discuss key aspects of the current EU copyright reform including the freedom to use copyrighted works (exceptions and limitations) as well as some of the failures of the existing legal framework (copyfails). After the event we invite you to lunch in Jan 3q Brasserie.
Copyright Reform: Unlocking copyright for users? – agenda
11:15 – 11:20 Introduction
Anna Mazgal, Communia
11:20 – 11:25 Welcome
MEP Therese Comodini Cachia (EPP)
11:25 – 11:35 How to understand the L&E practice better?
Launch of copyrightexceptions.eu – Maarten Zeinstra, Kennisland
11:35 – 11:45 What doesn’t work?
The #copyfails and ways out of the copy mess – Diego Naranjo, EDRi
11:45 – 11:55 What works?
Presentation of the Best Case Studies – Teresa Nobre, Communia
11:55 – 13:00 Questions and discussion
facilitated by Anna Mazgal, Communia
13:00 – 13:05 Commentary
MEP Carlos Zorrinho (PASD)
13:05 – 13:15 Closing remarks
MEP Therese Comodini Cachia (EPP)
13:15 – 14:00 Lunch
Brasserie Jan 3q Continue reading