A Vision for a Shared Digital Europe

Rape of Europa
Towards a European digital space
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Today our friends at Centrum Cyfrowe, the Commons Network and publicspace.online are launching a new vision for digital policy making in Europe: This Vision for a Shared Digital Europe lays the foundation for a new frame for digital policy making in the EU. It proposes an overarching policy framework that brings together varied issues and policy arenas, including copyright reform, platform regulation, privacy, data-protection and data governance, antitrust, media regulation or innovation policy. In announcing this Vision they write:

Digitalisation has led much of our interaction, communication and economic activity to take place through data or over online intermediaries. What kind of space should this digital sphere be? We believe that seeing this space as a market place only does not do it justice. This space is in effect our society – a society that is experiencing a digital transformation. Therefore we cannot accept the digital sphere as a place where only market dynamics rule. Society is more than an interaction between market players, and people are more than entrepreneurs or consumers.

As supporters of the European project, we believe that Europe needs to establish its own rules for the digital space, which embody our values: strong public institutions, democratic governance, sovereignty of communities and people, diversity of European cultures, equality and justice. A space that is common to all of us, but at the same time diverse and decentralised.

Over the past five months we have worked with a broad group stakeholders on developing a frame that can replace the existing Digital Single Market frame that dominates discussions about digital policy making in the EU. We propose a new, society-centric vision that is intended to guide policymakers and civil society organisations involved with digital policymaking in the direction of a more equitable and democratic digital environment, where basic liberties and rights are protected, where strong public institutions function in the public interest, and where people have a say in how their digital environment functions – a Shared Digital Europe. Continue reading

A final x-ray of Article 13: legislative wishful thinking that will hurt user rights

Article 13 final flowchart
Impossible obligations create legal uncertainty
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Since last year we have tracked the development of Article 13 of the proposed Directive on Copyright in the Digital Single Market by publishing a series of flowcharts that illustrates its internal logic (or absence thereof). Now that there is a final compromise version of the directive we have taken another look at the inner workings of the article. The final version of Article 13 continues to be so problematic that as long as it remains part of the overall package, the directive as a whole will do more harm than good. This is recognised by an increasing number of MEPs who are pledging that they will vote against Article 13 at the final plenary vote.

The flowchart below illustrates the main operative elements of Article 13. These include the definition of the affected services, the types of services that are explicitly excluded from its scope (the green box in the top right corner) and the reversal of the liability rules for the services covered by Article 13. It further details the obligations imposed on the services. These include an obligation to seek licenses for all copyrighted works uploaded by users (the yellow box) and the requirements to ensure the unavailability of certain works that will force platforms to implement upload filters (the two red boxes). The yellow box at the bottom contains the measures that platforms must take to ensure that the upload filters don’t negatively affect users’ rights.

Article 13 final flowchart

The Scope: Broad yet vague

The problems with Article 13 start with the definition of the services it applies to. While Article 13 is intended to address concerns about value distribution raised by a limited set of industries (primarily the music industry) it applies to all types of copyright protected works. But there is no good reason why an article that is intended to bolster that bargaining power of the music industry should impose expensive obligations on platforms that have nothing to do with hosting musical works. In addition, the limitation to platforms that deal with “large amounts” of works is so vague that it does not provide any legal certainty for smaller platforms and will undoubtedly give raise to court challenges. On the positive side the definition clearly limits the scope to for-profit services. Continue reading

Happy birthday, Public Domain Manifesto

Public Domain Manifesto - The Public Domain is the rule and copyright is the exception.Licentie

Today we are re-launching the www.publicdomainmanifesto.org website. 10 years after it’s conception and to the day 9 years after its first publication, the Public Domain Manifesto remains as relevant and timely as ever. The Manifesto, which was developed as part of the COMMUNIA network in 2009 and launched on the 25th of January 2010 serves as our foundational document and continues to guide our activities to this day. Since 2010 it has been signed by more than 3100 individuals and organisations (you can still sign it here).

We developed the Manifesto in order to counter the widespread perception that the Public Domain is simply characterised by the absence of copyright. With the Public Domain Manifesto we are proposing a positive definition of the Public Domain that highlights the important role the Public Domain plays for society.

The Public Domain, as we understand it, is the wealth of information that is free from the barriers to access or reuse usually associated with copyright protection, either because it is free from any copyright protection or because the right holders have decided to remove these barriers. It is the basis of our self-understanding as expressed by our shared knowledge and culture. It is the raw material from which new knowledge is derived and new cultural works are created. Having a healthy and thriving Public Domain is essential to the social and economic well-being of our societies.

The Public Domain Manifesto goes on to define the Public Domain (something which most copyright laws do not do) and outlines principles and guidelines for a healthy Public Domain. The Public Domain, as aspired to in the Manifesto, is defined as cultural material that can be used without restriction, absent copyright protection. In addition to works that are formally in the Public Domain, this also includes works that have been contributed to the commons under open licenses. In addition, our definition also includes the rights users have under exceptions and limitations to copyright, fair use and fair dealing. Continue reading

Germany’s non-paper on art. 13 screams “Houston, we have a problem”

Nasa Apollo 13 Mission Control
There's no public support for Article 13
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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.

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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?

Yes.

Are you sorry we drifted apart?

Yes.

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

The daily impact of Copyright

hfc headerLicentie

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.

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UNESCO recognizes the importance of Exceptions and Limitations

La liberté guidant le peuple
Moving ahead
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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.

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EU copyright reform grinds into trilogue negotiations

Oordeel van Salomo
Secret judgment of EU copyright reform
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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.

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MEPs Can Still Salvage the Copyright Directive in Today’s Vote

European Parliament (before the internet)
Seven issues where MEPs can #fixcopyright
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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.

Latest Article 13 compromise by MEP Voss is the worst one yet

De verzoeking van Adam en Eva in het paradijs,
Yet another poisoned "compromise" proposal
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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