Few months have already passed since The Directive on Copyright in the Digital Single Market was adopted in April this year. We did our best to use this time wisely to evaluate risks and opportunities for users’ rights and public domain created in the new legal framework and one thing is certain for us – we need a strong access to knowledge movement engagement also during transpositions in all member states – there is still a lot to be done.
Alongside with our members (Wikimedia, Creative Commons and Centrum Cyfrowe Foundation) we want to make sure that local communities in as many countries as possible participate in the national legislative process and provide input on how to shape national rules to ensure user rights and access to knowledge are strengthened, not weakened.
In order to build capacity we have organized a Transportation Bootcamp – an opportunity for activists to meet, share experiences, learn about the challenges related to transposition, think about arguments and tactics. For this 35 people from various communities (Wikimedia, Creative Commons, digital rights activists and GLAM experts) gathered in Warsaw, from October 11 to 13, to share and learn.
At the Bootcamp we explained the (soon to be published) suite of documents with implementation guidelines prepared by a group of legal experts. We also invited experts and policy makers that have been active on this reform over the past years to provide insight to activists. We started planning national activities with communities. We got to know each other. And we realized (once again) how many question marks these directive leave for national legislators to decide – and how much is still to be done.
The Member States have until 7 June 2021 to transpose the Copyright in the Digital Single Market Directive into their national laws. This once-in-a-decade change in copyright rules is a reason we have decided to work with activists in Member States on their national transposition (publishing position papers, organising events, contacting lawmakers, coalition building, etc.). If you feel like participating in this process in order to support access to knowledge, feel free to contact us: firstname.lastname@example.org – we’re happy to have you on board with our project!
This week Politico.eu has shared a “non-paper” prepared by the German Council delegation on article 13, ahead of the Council Copyright Attachés meeting that took place on Wednesday. In this paper Germany proposes to mitigate the negative effects of art. 13 by 1) exempting platforms with a turnover of up to 20 Mio. Euros per year from the obligations imposed by art. 13., 2) exempting platforms from liability in certain situations (e.g. if they made best efforts to obtain an authorization from the rightsholders), and 3) introducing a mandatory EU-wide user-generated content exception to copyright, subject to the payment of a fair remuneration to the rightsholders.
A Christmas tale
It is clear that there is a social legitimacy problem with a law proposal when, in every household visited during the Christmas holidays, someone starts talking about it. Children as young as eleven, teenagers and parents all knew about the existence of an infamous law proposal, which they referred to as “Article 13”. The familiarity with which they pronounced the number of the article was such that an undiscerning observer would believe they had been closely following the copyright reform and had actually read the European Commission’s proposal on upload filters.
Sure enough the children and the teenagers had not read the legal provision, neither had their parents. Their knowledge was based on the Youtube videos on art. 13 produced by their favourite Youtubers and/or on the newspaper articles that (finally) had started reporting on the issue, after those videos had become viral (one has now close to 5 million views).
This was the rule for every household, except one, where one of the parents – let’s call him a software and platforms entrepreneur – had not only read the proposal, but could easily point out the flaws on the lawmakers reasoning. 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 weekend Communia participated in Mozfest 2018 with a drop-in session on how copyright affects our daily lives. While the ongoing EU copyright reform will shape internet and users rights for ages, not all users are well aware of how this will impact them and the way they use the internet. In our session ‘Human faces of copyright’ we organised a number of activities to show how the reform will influence our daily internet experiences, the way we share and create.
The Mozfest community includes people with a wide variety of expertise and backgrounds. Not everybody might know the ins and outs of copyright (reform), but once you start talking about the challenges of copyright, most can quickly relate it to their own work and experiences.
OERs can be used to create inclusive and equitable education and to promote lifelong learning opportunities for all. They are an important factor that contributes to the improvement of educational opportunities.
However, while the special impact of OER is clear, often little attention is given to the issue of educational exceptions to copyright. Copyright frameworks that lack such exceptions can be an unjust obstacle for educators, and in particular can adversely affect the creation and use of OERs. Last year, we participated in the 2nd World OER Congress with the aim to raise awareness about educational exceptions as complementary means for achieving the goals of Open Education. The Ljubljana OER Action Plan, adopted by UNESCO members at the Congress, then, did not include actions related to copyright reform. Fortunately, this has now changed.
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.
On the 5th of July a large majority of the Members of the European Parliament voted against fast-tracking the report of its JURI committee on the Copyright in the Digital Single Market directive so that the full parliament could discuss the contents of the report and make adjustments to a number of controversial provisions. This discussion has taken place over the last few weeks and tomorrow marks the day when the European Parliament will take a final vote on the report.
On the table are a wide range of proposals to amend three of the most controversial parts of the proposed directive, as well as a number of attempts to address omissions in the original text. However, large parts of the JURI text, such as the exceptions dealing with education and access to cultural heritage, have been left untouched and will not be affected by Wednesday’s vote.
EU lawmakers will have the opportunity to agree on some meaningful improvements to the proposed directive which would then become part of the Parliament’s position for the upcoming trilogue negotiation with the European Commission and the Member States. An improved Parliament position is badly needed since the European Commission’s original plan was terribly disappointing and the Member States have adopted a position that is even worse on crucial parts of the proposed directive. In order to keep open the possibility that the EU copyright reform process will result in real improvements to the EU copyright system MEPs must:
- Text and data mining: Vote for an expanded version of the exception for text and data mining in Article which would allow anyone to text and data mine all legally accessible copyright protected works. This would be guaranteed by a set of amendments tabled by a cross-party coalition called the Digital Agenda Intergroup. Not adopting their amendments would mean that Europe will shut itself off from an essential tool for scientific, societal and economic progress.
- Press publishers right: Delete the unnecessary and counterproductive Article 11, but it deletion is not possible, limit the most negative effects by refusing to grant press publishers additional rights that will hinder access to knowledge. This would be guaranteed by sets of amendments proposed by the Digital Agenda Intergroup and by the Greens/EFA political group.
- Upload filters: Ensure that the attempts to address an imaginary value gap driven by the music industry by introducing mandatory upload filters do not damage the open nature of the internet and limit the freedom of (creative) expression online. In addition to deletion of Article 13 the damage can be limited by adopting amendments proposed by the Internal Market and Consumer Protection committee or the Digital Agenda Intergroup.
- User-generated content: Vote in favor of the new amendments that clarify that users may engage with copyrighted works through remixes, memes and other types of user-generated content (UGC). Support for UGC was indicated in the JURI recitals, but left out of the article text. There are amendments tabled the Digital Agenda Intergroup as well as several MEPs including Cavada, Reda, Adinolfi, and Maštálka.
- Freedom of Panorama: Vote in favor of new amendments that clarify the ability for European citizens to take and share photography of artworks and architecture in public spaces (freedom of panorama). There are amendments tabled by the Digital Agenda Intergroup as well as MEPs Maštálka and Reda.
- New rights for sports broadcasters and image search: Vote against the additional copyright protection gifted to sports events organisers snuck into the JURI report, as well as the addition of a licensing requirement for image search engines. Neither of these amendments were debated nor received a sufficient level of scrutiny by the Parliament, and both would result in substantial expansions of the scope of copyright that must be opposed given the absence of any evidence supporting such measures.
- Support for the public domain: Vote in favor of the amendments that add a positive definition of the public domain to the EU copyright framework. Copyright law takes a big part of its legitimacy from the fact that it creates temporary exclusive rights and this fundamental principle deserves explicit recognition in EU law. MEPs should support the amendments introduced by MEP Adinolfi.
In less than two weeks the European Parliament will vote on its position on the Copyright in the Digital Single Market directive. After the resounding rejection of the JURI mandate on the 5th of July, MEPs are searching for compromises that will allow the European Parliament to enter into negotiations with the Commission and the Member States. A key to finding such a compromise will be a new version of Article 13 that reflects the broad opposition against the upload filters that led to the rejection of the JURI mandate in July.
Last week Friday MEP Axel Voss presented his proposal for a new compromise on Article 13. According to Voss the new version answers to the demands voiced by critics of the original JURI text (and he expects those critics to support his new version):
Unfortunately this does not mean that MEP Voss has suddenly taken the concerns raised by users, academics, civil liberties organisations and many others into account. Instead he is proposing a version of Article 13 that would be even worse than everything that has been on the table so far. His newest “compromise” proposal consist of a simplified version of Article 13 that would make all online platforms that allow users to upload content (other than a select few) directly liable for copyright infringements committed by their users:
(1) Without prejudice to Article 3(1) and (2) of Directive 2001/29/EC, online content sharing service providers perform an act of communication to the public.
As a result open platforms would need to obtain licenses for all copyrighted content that could possibly be uploaded to such platforms, which is of course impossible since not all copyrighted content is available for licensing. In practice this will mean that platforms need to filter out all copyrighted works for which they do not have a license. Contrary to what Axel Voss wants us to believe, his latest proposal would mandate upload filtering on an unprecedented scale (see the flowchart below for a more detailed analysis). 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
This summer, COMMUNIA joined efforts with the Copyfighters to raise awareness on the ongoing Copyright Reform in EU at the music festival SZIGET. Sziget Festival is one of the most important, well attended and well known music and cultural festivals in Europe, gathering visitors from all corners of the world each August. In the heart of Hungary, the Obudai-sziget island, people across the world visit the festival for a few days to enjoy the music and to be inspired. Sziget has a Civil Island where current social issues can be discussed. On this island, in tent 50, we offered information about the current copyright reform and how it will affect citizens.
On three consecutive days, between 8th and 11th of August, surrounded by the SZIGET beats and its unique vibes (of freedom), we have discussed and raised awareness on the current importance of copyright issues in Europe and the potential affects that draft copyright regulations would have on digital freedoms.
Festival goers and visitors of SZIGET’s Tent 50 were asked what values they find important and how these values relate to the importance of copyright. They suggested words such as Europe, sharing, learning, knowledge and art as important values or concepts that are (or should be) equally or more important than copyright.
Having an upcoming vote on the proposed Copyright Directive scheduled on September 12th, the current copyright reform is in the eye of the legislative storm in Europe. Copyright laws in their essence, are an instrument aimed in the creative sector, with the purpose to keep the balance – between the interests of creators and the public.