The European Union is currently discussing a reform of its copyright system, including making mandatory certain copyright exceptions, in order to introduce a balance into the system. However, no one, except Julia Reda, is paying any attention to one of the biggest obstacles to the enforcement of copyright exceptions in the digital age: technological protection measures (TPM), including digital rights management (DRM). In this blogpost we will present the reasons why the European Parliament should not lose this opportunity to discuss a reform of the EU anti-circumvention rules.
No balance between anti-circumvention prohibitions and users rights
The InfoSoc Directive incorporates rules regarding the protection of TPM in articles 6 and 7, which do not adequately take into account users rights created by copyright exceptions and limitations. First, Member States are only obliged to guarantee that users can access and use a TPM-protected work in relation to a closed-list of “privileged exceptions”. Beneficiaries of the remaining exceptions are not able to exercise their rights when a work is protected by TPM. Second, only certain privileged users—those who already have legal access to the work—have the right to require the technical means to benefit from the selected exceptions. Finally, the rules that are aimed to protect users do not apply to on-demand online services.
According to the European Parliament’s 2015 impact assessment study, the EU anti-circumvention rules are intend to restrict the exercise of users rights under the exceptions:
The very narrow scope of application of this mechanism evidences a clear intent of the InfoSoc Directive to restrict considerably the enforcement of copyright exceptions in light of their increased economic impact in the new electronic environment (cf. Recital 44). (pg. I-84)
The copyright reform remains an exceptional opportunity to close the discrepancies between present-day practices and outdated law. One of the pressing issues is solving the legal uncertainty for users and creators online. Creating online is part of our digital culture and whether it is allowed or not, occurs everyday. There continues to be a lack of legal clarity on how to deal with user-generated content made for non-commercial purposes ranging from funny memes to elaborate works that critique and reflect on the society we live in.
The European Commission’s proposal for the Copyright Directive lacks a user-generated content exception. This is worrisome, because it does introduce an article that could possibly lead to filtering content generated by users even though much of that content does not harm rightsholders. The recent IMCO vote where an exception for user-generated content (UGC) was adopted is a positive step forward in getting a UGC exception in the final Copyright Directive. However, we can’t let our guard down yet. JURI, the most important committee, will vote on its amendments later this year and it yet has to prove it will follow the precedence set by IMCO.
Opposition to the UGC exception
JURI led by Comodini did not incorporate a UGC expectations in its draft opinion. It hereby deviates from the other draft opinions such as those from the IMCO and CULT committee. Therefore a UGC exception can only be included via the proposed amendments by the MEPs. There are several committee members who have proposed amendments for the JURI committee either along the lines of the one proposed by Marc Joulaud, the Rapporteur for the CULT committee, or the one by Catherine Stihler, the Rapporteur for the IMCO committee.
Even though this is encouraging, there is a specific reason for concern. One of the proposed amendments for the JURE committee concerning a UGC exception stands out, because it negates the positive effects of a possible UGC exception. Yes, you read that right. It’s done in a clever, but harmful way. Continue reading
We were hoping that the Committee on Civil Liberties, Justice and Home Affairs (LIBE) rapporteur Michal Boni would make use of the Committee mandate to suggest deletion of entire article 13 from the proposed Directive on Copyright in Digital Single Market. That didn’t happen. The justification of the report reflects a hope that the idea to regulate agreements between platforms and rightholders can be sustained while respecting fundamental rights of users. But do the LIBE amendments meet that goal?
Looking beyond technology
The very good news is that Rapporteur Boni proposes to remove content recognition and all references to the use of technology as a default option from the directive. MEP Boni also explicitly says in his report that the implementation of the agreements should not impose any general monitoring obligations.
Here the report builds nicely on theapproach paved by the JURI’s rapporteur MEP Comodini in her report. The removal of references to technology opens the path to looking for a variety of solutions in negotiating the division of revenues between service providers and rightholders. No doubt that technologies will be employed to verify if content is uploaded legally. But the EU copyright legislation should not require a direct connection between the business discussion on who the revenue should go to and the surveillance of users uploading stuff on a platform. Continue reading
While the European Parliament is in the middle of its discussions about the European Commission’s proposal for a Directive on Copyright in the Digital Single Market, similar discussions are taking place in a number of Member State parliaments. The results of these conversations will influence the position that Member States take in the discussions in the Council.
A particularly interesting discussion has been unfolding over the past month in the Romanian Parliament, where on the 15th of March the IT&C Committee of the Chamber of Deputies organized a debate on the proposed directive, in order to collect the views of different stakeholders. After the event, the IT&C Committee produced an opinion addressed to the European Affairs Committee of the Chamber of Deputies, which is the group responsible for drafting the final report of the Parliament on the package proposal. The members of the IT&C Committee unanimously voted against the European Commission’s proposal and advised to withdraw it in its entirety.
While this is not a heavyweight vote and as such not likely to be taken over as the Romanian Government’s position, it represents the first entirely negative advice issued by national policy makers in a Member State. It is therefore interesting to take a closer look at the arguments for rejection. Continue reading
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).
The concept of content filtering has been making quite a career. Not only did it land in the copyright directive proposal, but also it has been introduced into the draft of the Audiovisual Media Service Directive (AVMSD) that is currently making its way through the European Parliament. In the context of the AVMSD, filtering of uploads by video-sharing platforms would serve to prevent legal audiovisual content that could harm children. As important as protecting children may be, the CULT Committee has just voted against that idea. This was the right thing to do.
A seemingly quick solution to filter whatever the decision makers don’t want users to see is a very dangerous tool in any context. It is an arbitrary approach to the flow if information online and as such it can be used as a censorship machine. This “automatized conscience” will operate on a very abstract definitions of content that could impair children’s “physical, mental or moral development” or incitement to terrorism, violence and hatred. Humans often argue about what constitutes such incitement with many cases finding their finale in court. How could we trust algorithms with such a dispute?
Fortunately, 17 members of the CULT Committee understood that. Nine of them either do not see the danger or have an unwavering faith in the potency of technology to solve complex societal problems. Hopefully, the AVMSD debate helped CULT Committee see both the danger and the pointlessness of content filtering and they will take a similar decision for a better copyright. After all, in the context of copyright, putting the interest of rightholders before the interest of the public is an even worse reason to employ algorithms as censors.
Today, COMMUNIA launches the rightcopyright.eu campaign, asking for support for a better copyright for education. Let’s raise our voices and spread the word about this petition so we can influence our legislators in creating better copyright laws for education.
Why we need your help
The European Commission has presented a new European copyright law (Draft Directive) to the European Parliament which very much impacts education. Unfortunately, the current proposal is very disappointing and does not facilitate education. Educators have embraced the modern possibilities, and so should copyright. Therefore, COMMUNIA has developed a campaign website rightcopyright.eu to collect petitions of educators throughout Europe to let the European Parliamentarians know we need a better copyright for education. The European parliament will vote on the proposal later this year, and can change, accept or reject it. We will present the outcomes of the petition in the European Parliament, clearly showing them the voice of the European citizens eager for a good-quality education, and a copyright that matches.
For several months now, we have been arguing that ‘the devil is in the detail’ when it comes to the Commission’s education proposal. MEP Therese Comodini Cachia draft amendments to the proposed exception for digital and cross-border teaching activities, while introducing some improvements, do not meet the educational community expectations to see a better copyright reform. And, worst still, they represent a serious step back in relation to the existing EU acquis in the area of educational exceptions.
The licensing fight continues
We appreciate MEP Comodini efforts to mitigate the negative impact of article 4(2), which allows Member States to give precedence to licenses over the proposed exception. However, we believe she misses the opportunity of getting rid of the Commission’s infamous proposal, while still protecting the extended collective licensing (ECL) schemes that exist in the Nordic countries.
Under the Commission’s proposal, any licensing offer could rule out the application of the education exception, thus negating much of the substance and effectiveness of the exception. MEP Comodini seems to recognize that many educational institutions would be ill-placed to negotiate license terms or would be forced to accept the terms dictated by the licensor, and thus introduced some substantial changes to article 4(2). Under Ms. Comodini’s proposal, the unilateral and discretionary offer of the rightholder to conclude a licensing agreement is not sufficient to deny the educational establishment concerned the right to benefit from the educational exception. An existing contractual relation is needed to override the exception.Continue reading
Again we are witnessing an attempt to make the Frankenstein’s monster, article 13, a bit prettier as the Legal Affairs Committee’s (JURI) report has been officially published. Instead of killing it altogether with its recitals, MEP Therese Comodini Cachia tries to save the numbering of the proposal and at the same time to diffuse the bomb the European Commission set against users’ rights.
Filtering is kind of gone
The reading of the proposed article 13 text leaves no doubt that the intent is to remove the upload filter. The reference to “preventing the availability” of content uploaded by users who have no ownership over it is gone from article 13 paragraph 1. The emphasis is on effective and proportionate measures that the information society service providers need to take to ensure that the agreements they conclude with rightsholders are functioning well.
At first sight the amendments proposed for article 13 seem good. What kind of measures should be carried out is left open. It can be really anything that parties decide would work for them, be it some compensation or a share in the revenues the content users upload generates when there are ads on display. Unfortunately, looking into the recitals, it gets more complicated. Ms Comodini proposes no rewrite to recital 39 that would change the fact that the content recognition remains a go-to technology in terms of assessing the rights to uploaded content.
What are the consequences of that? It means that effectively the ISSPs and rightsholders are not encouraged to look beyond tech solutions to address any perceived disparities of income. Rather, the directive legally validates the existing market practice of employing tech such as Content ID to sort out ownership of the content. With her concept Ms Comodini may have closed the gate to filtering uploads but she left the path leading to it basically intact.
Another consequence is that if article 13 had ever meant to make Youtube weaker, by constant relying on tech solutions in settling human disputes, it equips the tech giant with an enormous competitive advantage. After all they already have Content ID.
Today, MEP Therese Comodini Cachia, the European Parliament’s main rapporteur for the proposed copyright in the Digital Single Market directive published her draft of the JURI report (pdf) on the Commission’s proposal. In line with the initial reactions from the rapporteurs from the Culture and Education (CULT), Internal Market and Consumer Protection (IMCO), and Industry Research and Energy (ITRE) committees Ms. Comoidini’s report points out substantial flaws in the Commission’s unbalanced and backward-looking proposal.
Unlike her colleagues from CULT and IMCO Comodini has limited her report to fixing flaws in the provisions proposed by the Commission. While such fixes are important, this means that her draft report constitutes a missed opportunity to introduce more forward-looking provisions that would strengthen the position of users such as much-needed exceptions providing legal certainty for user generated content and ensuring freedom of panorama in all of the EU.
Below we provide a brief overview of the changes to the Commission’s proposal that Ms. Comodini proposes in her draft report. We will follow-up over the next few days with more in- depth analysis of individual issues.
R.I.P ancillary right for press publishers
Her most straightforward intervention is to delete the Commission’s proposal for a new neighboring rights for press publishers. In line with what we and many others had proposed she instead proposes to solve the enforcement problems of press publishers by improving their ability to act against infringing uses of works published by them:
Member States shall provide publishers of press publications with a presumption of representation of authors of literary works contained in those publications and the legal capacity to sue in their own name when defending the rights of such authors for the digital use of their press publications. (AM 52)