Communia fights for more room for right to research in international copyright law

Optocht van professoren
Promoting access to knowledge for all
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Access to knowledge is essential to ensure inclusivity and equality of our societies, particularly in the digital age. Researchers and the institutions that serve them are struggling to perform their activities at a distance, due to outdated copyright frameworks that do not properly balance all the rights that are deemed fundamental to our societies. It is time to abandon the rhetoric that copyright exceptions that support access to knowledge activities will harm authors and the industries that depend on them. 

For the next three years, Communia will be working on a project to study and promote changes in international copyright law to ensure equity in the production of and access to research. Our aim is to promote effective change in the political discourse towards the adoption of an international legal framework that protects legitimate access to knowledge.

We will work with a broad range of partners representing researchers and the institutions that serve them, including our Communia members Creative Commons and Wikimedia Deutschland. Our activities will include producing research, provide training to a global network of change makers, and connect a global expert network to a global community of researchers, libraries, museums, archives, and digital rights activists active in international copyright policy making.

The project will be run by the American University Washington College of Law (AUWCL), through its Program on Information Justice and Intellectual Property (PIJIP), and will benefit from a grant from Arcadia, a charitable fund of Lisbet Rausing and Peter Baldwin.

Read more about the project here.

How Hungary has quick-fix implemented Article 5 of the DSM directive

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Taking care of what matters the most
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This blogpost is part of a series of blogposts where we track how EU Member States are adapting their national laws to the requirements of Article 5 of the Copyright in the Digital Single Market Directive (DSM directive), which sets new minimum standards for the digital and cross-border use of copyright materials in education. So far we have published analysis of the Dutch and the German proposals. Today, we provide an overview of the Hungarian new education exception by Mónika Trombitás Andersson. This overview focusses on the substance of the new exception; for critical perspective on the legislative procedure see here.

Fast implementation of the new exception to permit remote teaching during COVID-19

Just as in several other EU Member States, in Hungary as well the stakeholder consultations regarding the implementation of the DSM Directive are still ongoing. Yet, the provisions set out in Article 5, namely those concerning the use of works in digital and cross-border teaching activities, have already been implemented and the relevant amendments to the Hungarian Copyright Act (No. LXXVI of 1999) came into effect on 18th July 2020. The reason? Urgent need for modern copyright rules enabling schools to swiftly transition into distance education during the COVID-19 pandemic and distribute learning material digitally.Continue reading

Copyright and COVID-19: Has WIPO learned nothing from the pandemic?

Vechtende boeren
It's time to put our differences aside
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In November, Communia participated in the World Intellectual Property Organization’s (WIPO) 40th session of the Standing Committee on Copyright and Related Rights (SCCR), the most important forum at the global level for copyright rulemaking. Due to the pandemic, this was the first time the Committee met this year, and the meeting took place in a hybrid format, with most of the delegations participating through online means. 

Our expectations for this meeting were high. The COVID-19 pandemic has shown, more clearly than ever, that copyright can stand in the way of schools, libraries and cultural heritage institutions properly operating. Copyright exceptions that permit these public interest activities still do not exist everywhere. Moreover, exceptions do not always apply regardless of whether activities are conducted on site or at a distance (digitally).

Communia and other civil society observers were expecting the Committee to consider the impact that the COVID-19 pandemic has had on these public interest activities, and take appropriate action. However, WIPO member states had previously decided that, due to the format of the meeting, they would not engage in negotiations on any of the items on their agenda. Therefore, despite references to the problems caused by the pandemic in several Delegations’ statements, none put forward any proposal to deal with these issues.

Exceptions and limitations: shouldn’t we be there yet?

As explained in Communia’s statement to the Committee and highlighted by numerous WIPO-commissioned studies, WIPO member states are well aware that exceptions (notably the education and research exceptions) that exist today do not always have the elasticity to cover activities that take place remotely. More importantly, WIPO member states know that only an international instrument can solve the cross border aspects of distance activities, when the application of multiple national laws is triggered.

Progress on the topic of copyright exceptions has been limited for a number of years now. The only notable exception has been the Marrakesh Treaty, which establishes a mandatory exception for the benefit of persons who are blind, visually or otherwise print-disabled. Discussions on an international legal framework to cover a minimum set of legitimate uses made by persons with other disabilities, by educators, learners and researchers, and by libraries, archives and museums, have been diverted time and time again. 

With the pandemic, this state of affairs is even less acceptable than it was before. Before we were already seeing a trend towards digital and cross-border access and use of copyrighted materials for educational, research and other public interest purposes. Yet, WIPO member states could justify their inaction by telling themselves that these uses were not significant. 

However, in a few months, distance activities became the new normal. Now, institutions all over the world are opting for remote formats or hybrid models of in-person and online education, research and access to the collections of cultural heritage institutions. And we may never go back to the way things were before.Continue reading

DSM Directive implementation update: six months to go and no end in sight

December
MS still tying to make sense out of Art 17
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According to Article 26 of the Copyright in the Digital Single Market Directive, Member States have until the 7th of June 2021 to implement the provisions of the Directive into their national laws. This leaves member states exactly 6 months to implement the directive and so it is time to take stock of the implementation status in various Member States. 

So far not a single EU Member State has fully implemented the provisions of the Directive and only two Member States have implemented parts of it (In 2019 France implemented the new press publishers’ right and in June of this year Hungary implemented the exception for online educational use). In most of the EU Member States implementing legislation still needs to be introduced into parliament. In the meantime, the European Commission is still working on the implementation guidance for Article 17 that it is required to publish, and the Polish government’s request to annul parts of Article 17 is still under deliberation in the Court of Justice of the European Union (the Advocate General will publish its opinion on the 22nd of April 2021 less than two months before the end of the implementation deadline). All in all it looks increasingly unlikely that most Member States will implement the Directive in time. So let’s take a more detailed look at where the implementation process stands in key Member States. 

Commission’s Guidance

The European Commission closed its targeted consultation on the implementation guidance in September and is currently working on a final version of its guidance that is not expected to be adopted before early next year. The Commission has made it clear that it does not expect key elements of the guidance to substantially change from its earlier draft, which is designed to limit the use of automated filters and requires that user uploads remain available while they are under dispute It seems that the Commission is unwilling to bow to the considerable pressure from some Member States and from rightholders to change key elements of the draft guidance. Continue reading

SCCR/40: Communia Statement on Limitations and Exceptions

The Doctor's Dream
15 years and a pandemic later: are we there yet?
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In our capacity of permanent observers of the WIPO Standing Committee on Copyright and Related Rights (SCCR), we are attending the 40th session of the Committee, which is taking place in a hybrid format of in-person and online participation from 16 to 20 November 2020.

The following is the statement made on behalf of Communia on limitations and exceptions for educational and research institutions and for persons with other disabilities (Agenda Item 7):

This Committee has been discussing the issue of copyright exceptions for almost 15 years. During this time, a number of studies were conducted and we learned that many countries fail to guarantee the right to use protected content for education, research and other legitimate purposes.

Still, reaching a common ground for exceptions was not a priority for all. Progress was limited even though we were seeing a clear trend towards cross-border uses, taking place online. 

Now, that state of affairs could be acceptable before the massive disruption to society caused by the COVID-19 pandemic. But over the last six months those cross-border online uses have become the new normal. 

All over the world, institutions are opting for remote formats or hybrid models of in-person and online access and use of content. And we may never go back to the way things were, namely for education, where we now have teachers and students working from home, often located in different Member States, and having to deal with a fragmented treatment of exceptions across those locations.

We understand that Northern countries prefer to negotiate bilaterally with developing countries. In our opinion, this perpetuates an unbalanced power relationship between the Global North and the Global South.

This forum can provide more transparency and legitimacy to these discussions. We thus urge you to not leave your mandate unfulfilled. 

In the Report on Regional Seminars and International Conference on Limitations and Exceptions, prepared by the Secretariat, we can find something for everyone’s taste. Now it’s up to this Committee to set priorities for its work. 

We urge the Committee to respond to the pandemic with a declaration or resolution to assert the flexibilities that exist; then work on model laws and on a binding solution for cross-border uses; and eventually discuss a minimum set of mandatory exceptions.

Thank you.

SCCR/40: Communia Statement on the Protection of Broadcasting Organizations

Parisiens en train d'etudier la question turque
No perpetual rights, no rights without exceptions!
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In our capacity of permanent observers of the WIPO Standing Committee on Copyright and Related Rights (SCCR), we are attending the 40th session of the Committee, which is taking place in a hybrid format of in-person and online participation from 16 to 20 November 2020.

The following is the statement made on behalf of Communia on the protection of broadcasting organizations (Agenda Item 5):

We understand that the draft of the Broadcasting Treaty gives broadcasters perpetual rights over public domain and freely licensed content, which is extremely problematic for users. 

Without this extra layer of rights, these works can be used without restriction, and this freedom should be maintained. 

In addition, we are concerned that the current proposal for exceptions only gives countries the option to extend already existing exceptions to broadcasting signals. Obviously, countries can choose not to exercise that option, and if they opt not to, the Treaty will be creating new obstacles to access to culture and information. 

Exceptions are essential to achieve a balance between the interests of the broadcasting organizations and the public interest. The vision that supra-national instruments should only mandate the introduction of new rights, without imposing adequate exceptions, is outdated and turns a blind eye to the fact that copyright can prevent the exercise of fundamental freedoms. 

It is about time for this Committee to align itself with the knowledge produced by its academics and by its courts, which have over and over again referred to the need for a balanced view of copyright.

The Treaty should include a broad provision like the one contained in the Regional Comprehensive Economic Partnership Agreement, which makes it mandatory for each Party to provide an appropriate balance in its copyright system, including by means of exceptions for legitimate purposes. In addition, it should have a minimum set of mandatory exceptions, namely for the uses already required by other copyright treaties.

Thank you.

CJEU hearing in the Polish challenge to Article 17: Not even the supporters of the provision agree on how it should work

Echtpaar bij de dorpsrechtbank van Puiterveen
Will the CJEU strike down Article 17?
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On Tuesday, November 10, the Court of Justice of the European Union (CJEU) heard case C-401/19. This case is a request by the Polish government to annul the filtering obligation contained in Article 17 of the Copyright in the Digital Single Market (DSM) Directive on the grounds that it will lead to censorship and will limit the freedom of expression and the freedom to receive and impart information guaranteed in Article 13 of the EU Charter of Fundamental Rights (Charter).

The defendants in this case are the European Parliament and the Council of the European Union. In addition, the European Commission and the governments of France and Spain intervened in the case on the side of the defendants. Advocate General Saugmandsgaard Øe was also present at the hearing.

Even for astute followers of the discussions around the implementation of Article 17, the hearing contained a number of surprises. While several Member States have been soldiering on with their national implementation proposals with little regard for the fundamental rights implications of Article 17, the hearing showed that the Court is taking Poland’s complaint very seriously and that the compliance of the contested provisions of Article 17 with the Charter is far from evident. Frequent reference was made during the hearing to the recent opinion of Advocate General Saugmandsgaard Øe in the YouTube and Cyando cases, which is highly critical of extensive obligations on platforms to police the copyright infringements of their users.

On the face of it, the case is about Poland’s request to annul Articles 17(4)(b) and (c) of the DSM directive. Poland argued its case, which essentially rests on the observation that while not explicitly mandating them, Article 17(4)(b) and (c) effectively require platforms to implement upload filters because there are no other effective means to comply with the obligations contained therein. Poland argues that this will lead to censorship and will limit the freedom of information of the users of online platforms.

According to Poland, the key problem with the directive is the move away from active participation of rightholders (as initiators of removal requests in the context of notice and takedown procedures) and instead handing the responsibility of removing infringing uploads over to platforms who will have to develop private enforcement systems to avoid liability for copyright infringement. Because they are not facing any comparable risk when they limit user rights by blocking access to legal content, this creates strong incentives for over-blocking. This in turn will result in censorship and violation of the fundamental rights to freedom of expression and information under the Charter. Consequently, the problematic parts of Article 17 should be annulled by the Court.

All other parties intervening in the case objected to this line of argument and stated that in their view Article 17 does not violate any fundamental rights. However, they presented strikingly contradictory interpretations of what Article 17 actually requires of platforms. There are two distinct lines of argument: The Commission, the Council and the European Parliament argued that that Article 17 contains enough internal safeguards to prevent users’ fundamental rights from being unduly limited. On the other hand, France and Spain argued that some limitations of fundamental freedoms are justified by the objective that Article 17 seeks to achieve. Continue reading

Copyright and education: new approach for the time of the pandemic

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Do we need a new approach to copyright, as it applies to education? What has the pandemic changed? We will ask these questions during a Copyright for Education online event this Thursday, 29th of October).The session is co-organised with our member, Centrum Cyfrowe and is part of this year’s Open Education Policy Forum.

The Copyright for Education online event will take place on Thursday, 29th of October, at 13.00-14.15 UTC. You can register for the event here. Registered participants will receive a Zoom link on the day of the event.

We are inviting to this session educators, copyright scholars, activists and educational stakeholders. Our speakers include Meredith Jacob (PIJIP / Creative Commons USA, USA), Teresa Nobre (Communia Association, Portugal) and Allan Rocha de Souza (UFRRJ, Brazil) and will be moderated by Alek Tarkowski (Communia / Centrum Cyfrowe Foundation, Poland).

Debates about copyright reform, as seen from the perspective of educational stakeholders, often concern adjusting the law to the requirements of digital education. During the pandemic, we all experienced a sudden shift to digital, remote education. Did current copyright law prove to be fit for purpose, or did it become an obstacle to teaching and learning? What kind of copyright law do we require to support resilient education during the ongoing pandemic?

In this session, we want to highlight the growing importance of strong educational exceptions that are necessary for effective and resilient remote education. Our speakers will present perspectives from around the world and cases of different educational contexts and legal systems. We will also discuss ongoing legislative processes – such as the implementation of the new European Copyright Directive or ongoing policy debates at WIPO.

Taming the upload filters: Pre-flagging vs. match and flag

Raderboot
How to limit the damage filters can do
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One of the most important elements of any implementation of Article 17 will be how platforms can reconcile the use of automated content filtering with the requirement not to prevent the availability of legitimate uploads. While most implementation proposals that we have seen so far are silent on this crucial question, both the German discussion proposal and the Commission’s consultation proposal contain specific mechanisms that are intended to ensure that automated content filters do not block legitimate uploads, and that uploads are subject to human review if they are not obviously/likely infringing. 

In order to achieve this objective, the German discussion draft published in June relies on the idea of “pre-flagging”: users would be allowed to flag uploads containing third party works as legitimate. Platforms would then be prevented from automatically blocking pre-flagged uploads unless they determine that the flag is incorrect because the upload is “obviously infringing”. 

By contrast, the Commission’s implementation guidance consultation proposes a “match-and-flag” mechanism: if upload filters detect the presence of a third party work in an upload and the use is not deemed to be “likely infringing”, then the uploader is notified and given the ability to state that the use is legitimate. If the user flags the upload as legitimate, the platform will have to initiate a human review of the upload, which remains available from the moment of upload until the review has been concluded. This type of mechanism was first suggested by a group of copyright academics in October of last year. It is also at the core of the proposal that we had presented during the last meeting of the stakeholder dialogue.

Both approaches provide a mechanism that limits the application of fully automated upload filters (while implicitly acknowledging the fact that many platforms will deploy upload filters). In the Commission’s proposal, filters are limited to making a pre-selection (“is the upload likely infringing?”); in the German proposal, they can only operate on unflagged content and to filter out “obviously incorrect” pre-flags.

Convergence on “match-and-flag”?

Both approaches have been criticised by rightholders, who claim that they undermine the “original objective of the directive” without providing alternative proposals on how automated filtering can be reconciled with the requirement not to block legitimate uploads. In addition, the German discussion proposal has also been criticised by platforms such as Google and Facebook. The platforms are arguing that giving users the ability to pre-flag every single upload would be impractical and would likely lead to substantial numbers of unnecessary (where the content in question is already licensed) or unjustified (users making excessive use of the pre-flagging tool) pre-flags, which would make such a system impractical to operate at scale. Continue reading

Implementation update: French Parliament gives carte blanche, while the Netherlands correct course.

Le Francois L'Hollandois
Dutch parliament strengthens user rights
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Back in January of this year, we noted how both the Netherlands and France (at that point the only Member States that had presented proposals to implement Article 17) had proposed selective implementations of Article 17 that ignored crucial user rights safeguards. A lot has happened since January, but yesterday both Member States took further steps in their national implementations. And this time the two Member States are moving in opposite directions: 

While the Dutch government has reacted to criticism from civil society and members of Parliament by fixing some of the most obvious shortcomings of its implementation law, the 2nd chamber of the French Parliament has adopted a law that gives the French government the power to implement Article 17 (and the rest of the provisions of the DSM directive) however it sees fit. 

Netherlands: a course correction

Back in July of 2019, the Netherlands were the first country to propose an implementation law of the DSM directive. Somewhat surprisingly (the Netherlands had been one of the most vocal opponents of Article 17 in the Council) the proposed implementation law did not make any efforts to protect user rights and omitted most of the user rights safeguards contained in the final version of Article 17. After the proposal was sent to Parliament in June this year, together with Bits of Freedom and others we pointed out these shortcomings to the members of the legal affairs committee. Yesterday, in response to questions from members of the legal affairs committee, the government conceded that its original implementation proposal was incomplete and added the missing user rights safeguards to the proposal for an implementation law. Continue reading