SCCR/38: Communia General Statement on Exceptions and Limitations

Karikatuur van Franse censoren
Minimum access and use rights should be defined by public rules
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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 38th session of the Committee, which is taking place in Geneva from 1 to 5 April 2019.

The following is the general statement made today by Teresa Nobre on Limitations and Exceptions (Agenda Items 7 and 8):

I’m speaking on behalf of COMMUNIA, an international association that works to protect and strengthen the public domain and users’ rights.

We believe that there is a minimum set of access and use rights that should be defined by public rules, since they are justified by public interests. If copyright laws do not grant to the education and research communities, the cultural heritage institutions, and the persons with disabilities the same level of protection that is granted to rightsholders, and defer to private agreements the regulation of all uses of copyrighted materials, they perpetuate an unbalanced power structure and let rightsholders weaken or undermine what should be a public policy decision.

Private agreements are important in any market, but they should coexist with – and not replace – exceptions. Agreements are not appropriate to harmonize the legal framework for uses of copyrighted works, because the terms and conditions of licenses vary widely, and they are not available for every material in every country. There are countless copyrighted works in existence and the large majority of creators is not interested in licensing their works (only a small class of professional creators is offering their works for licensing). Thus, it is impossible to offer meaningful solutions to users through private agreements only.

In order to have a minimum set of rules that are applied uniformly by every Member State and have a cross-border effect we need an international law.

The ongoing reform in the European Union should be enough for this forum to understand that agreeing on minimum standards is possible, while still taking into account local specificities.

Thank you.

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The new Copyright Directive is a lost opportunity for Europe

Hercules by Albrecht Dürer
and shows lack of respect for user rights
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Today, after a 30-month long legislative procedure, the European Parliament voted on the Directive on Copyright in the Digital Single Market. Members of the Parliament approved the Directive, with 348 voting in favor and 274 voting against, and 36 abstaining.

The Directive is the most important European regulation of the digital sphere in the last several years. It will define the shape of copyright in Europe for years to come — and have spillover effects for regulation around the globe. We believe that the approved directive will not meet the goal of providing a modern framework that balances the interests of rightsholder and users, protects human rights and enables creativity and innovation to flourish. Instead, it is a biased regulation that supports one business sector, at the cost of European citizens.

In the last two and a half years, and especially since last June, we faced an extremely heated debate and intense legislative process. During this time, together with a broad coalition of activists, experts and organisations, we attempted to remove (or improve) its most controversial parts. In the last weeks, we supported an effort to amend the directive during the plenary, in a last attempt to remove the most detrimental provision — Article 13. Unfortunately, the European Parliament rejected a motion to vote on amendments to the Directive, with 312 MEPs voting in favor, and 317 voting against. This motion would have opened the door to remove Article 13 but keep the rest of the directive intact. It failed.

The Directive was therefore approved, with all the controversial elements that we have been criticising: content filters introduced by Article 13, new rights for publishers introduced by Article 11, and a mechanism for overriding copyright exceptions for education by private agreements introduced by Article 4/2.

European parliamentarians, together with the Commission and the governments of the Member States have given a strong signal of support to the entertainment industries and their incumbent players — at a dire cost to internet users and freedom of expression. We believe that it is an unbalanced approach that will have severe repercussions. These legal provisions will not only cost millions to small and medium sized European platforms, but most importantly put fundamental freedoms at risk and set dangerous precedents for user rights.

Say YES to copyright and NO to Article 13

Say YES to copyright and NO to Article 13Licentie

Earlier today, on the eve of tomorrow’s vote, we distributed 750 copies a journal titled “Say YES to copyright and NO to Article 13” to the offices of the MEPs in Strasbourg. This is part of a last ditch effort by civil society organisations to prevent MEPs from approving a new copyright directive that includes the disastrous Article 13. You can download our journal here (pdf) and we are re-publishing the text of the editorial below.

Say YES to copyright and NO to Article 13

Article 13 of the proposed Copyright Directive will put even more control over European culture and knowledge into the hands of online monopolies. As organisations representing digital creators and knowledge workers, we urge you to reject this provision that will replace the rule of law with proprietary algorithms controlled by big tech companies.

It is high time that Europe adapts its copyright framework to meet the needs of the digital age. The proposed directive contains many measures that take steps in the right direction, such as improving the negotiation position of authors and performers, better safeguarding the public domain, and by allowing researchers and cultural heritage institutions to make better use the opportunities created by the digital environment.

In spite of widespread opposition from academics, internet users and millions of concerned citizens, the directive still contains provisions that will force most internet platforms to filter all content uploaded by their users to remove any copyrighted works flagged by rightsholders. This will cost European companies and new startups millions, and what’s worse, it won’t work. The idea that technology can reliably differentiate between legitimate and unauthorised uses of copyrighted material has been credibly disputed by experts across the spectrum. Putting the regulation of speech and creative expression in the hands of private corporations lacks public support.

  • Instead of taking the right step toward a Digital Single Market that works for all, a directive that includes Article 13 would sow even more legal uncertainties.
  • Instead of empowering European creators, it will entrench the position of dominant platforms.
  • Instead of balancing fundamental rights, it will weaken the law by shifting power towards algorithms and away from crucial users’ rights upholding freedom of expression.

We support the objective to ensure that creators are rewarded adequately for their creativity. Upload filters themselves will not achieve this objective. This directive needs to take the interests of all stakeholders into account, not only “big tech” and “big content”. Copyright should be a matter of social contract that upholds the public interest, not of secret algorithms controlled by private actors. We therefore ask you to reject the text of the directive as long as it includes Article 13.

Reminder: making platforms pay creators doesn’t require upload filters

Musicerend gezelschap
Delete Article 13 now
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Days before the final vote of the European Parliament on the copyright directive, the discussion about the directive seems entirely focussed on Article 13. A wide coalition of civil society groups, online creators, academics and citizens is calling for the removal of Article 13 from the directive. On the other side 270 organisations representing rightsholders are calling on MEPs to say “yes to copyright” and pass the directive in its current form (including Article 13).

Behind the facade of these well known (and deeply entrenched) positions, something interesting is going on. If we start un-peeling the arguments brought forward by both sides, it seems that they are closer than it appears. When it comes to Article 13 there seem to be two points that almost everyone seems to agree on:

(1) Nobody really wants to see the widespread use of upload filters and (2) Everybody agrees that there is a need to ensure that creators are fairly rewarded on the basis of licenses obtained by the online platforms.

This agreement is emerging as a result of several recent developments. On the side of the opponents of Article 13 the intense discussion of the previous weeks has resurfaced the fact that underneath the calls for a deletion of Article 13 there is widespread acknowledgement that there is a real need for platforms to pay those creators who want to be paid for uses of their works by the platforms. On the side of the proponents of Article 13 there seems to be an increasing realisation that an Article 13 that does require widespread use of upload filters may lack sufficient support within the EP (and certainly outside of it).

Upload Filters have become toxic

This second development represents a marked shift in the positioning of the supporters of Article 13. The most prominent example of this is a position paper of the German CDU (the same political party that rapporteur Axel Voss belongs to) in which the promise (to an enraged German electorate) that Germany would implement Article 13 in such a way that there will be no need for upload filters (by requiring platforms to obtain blanket licenses). While the substance of this claim is way out of line with the actual text of Article 13 and the requirements of the rest of the EU framework, it does illustrate that even for the CDU, which was instrumental in pushing through the current text, upload filters have become too toxic to be associated with. Continue reading

Dear European Parliament – say #Yes2Copyright, but NO to #Article13

Tuin met parterre met labyrint en op de achtergrond een poort
There is still time to act!
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The final vote on copyright reform in the plenary session of the Parliament is scheduled for March 26. After more than 30 months of work on this topic our overall assessment remains unchanged: The proposed Directive is bad, and will not make the internet work for people. The final “compromise” text has done nothing to accommodate the concerns we and others have raised over the past 2+ years.

As long as Article 13 remains part of the package, the only sensible way forward it to make sure that Directive will be rejected by the European Parliament.

There is still time to act! Read along to find out what you can do in the last days before the vote.

Upload filters don’t (and can’t) respect users’ rights

Through the lens of copyright, Article 13 turns upside down how the web works. Instead of permitting users to upload content to platforms and resolving platforms from liability as long as they act quickly to remove infringing content once notified, Article 13 would require nearly all for-profit platforms that allow UGC to conclude licenses all user uploads. If they don’t obtain the licenses, then the only option will be to install upload filters and censor content in order to ensure that any unsanctioned content remains off their service. If the platforms don’t comply, they could be held liable for significant copyright infringement damages. 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

The education exception was gutted during the Trilogues

A dragon devouring the companions of Cadmus
Article 4: attacked through the recitals
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When the European Commission proposed to grant the same minimum rights for digital educational activities in every EU Member State, we applauded the initiative. The proposal had flaws, but there was room for public discussion at the European Parliament, which could have led to an improvement of the proposal. Unfortunately, the improvements introduced by the Parliament were gutted during the trilogue debates, which were conducted behind closed doors.

Let’s recall the improvements introduced by the Parliament: (i) on the issue of licensing, where the EC proposed to allow the exception to be switched off if unilateral licensing offers were made available to schools, the EP suggested to give priority only to bilateral licensing agreements that the schools had agreed on; (ii) on the issue of beneficiaries, where the EC proposed to cover only the activities run by formal educational establishments, the EP suggested to include museums and other cultural heritage institutions as beneficiaries of the exception; (iii) on the issue of contractual overrides, where the EC had done nothing to protect the exception against contracts, the EP proposed to prevent contractual overrides of the education exception, and (iv) on the issue of technologies, where the EC proposed to make the exception function only on the school’s closed networks, the EP attempted to cover more means of communication by replacing the word “networks” with “environments”.

Unfortunately, the European Council did not engage in the same type of public discussions with regard to new European law proposals and, maybe because of that, it’s version of Article 4 did not include similar improvements. What is worse: it made the prospects of having an improved and harmonized landscape for educational activities in Europe even less likely.

For several months, the Commission, the Council and the Parliament discussed, behind closed doors, the fate of the new Directive, and as far as we are aware there was little interest in discussing the education exception because there were other pressing issues that required their attention. As a result, the positive amendments contained in the Parliament version were not retained in the Trilogues.

Below, we explain three negative changes made to the text of the educational exception in this final phase of the legislative process. Changes made without public consultation, transparency or due review of evidence. These include denying teachers the right to benefit from the exception when there are licenses available in the market for them to buy; excluding the educational programs run by museums and libraries from the scope of the exception; and allowing Member States to fragment the exception, by defining different proportions to which a work can be used.Continue reading

A “compromise” that fails to deliver – our overall assessment of the directive remains negative

Overall DSM directive assessment: bad for the peopleLicentie

On Wednesday the Council formally approved the trilogue compromise text of the DSM directive with only 5 Member States voting against the compromise. In a joint statement the Netherlands, Luxembourg, Finland, Italy and Poland sharply criticised the compromise:

We believe that the Directive in its current form is a step back for the Digital Single Market rather than a step forward.

Most notably we regret that the Directive does not strike the right balance between the protection of right holders and the interests of EU citizens and companies. It therefore risks to hinder innovation rather than promote it and to have a negative impact the competitiveness of the European Digital Single Market.

Furthermore, we feel that the Directive lacks legal clarity, will lead to legal uncertainty for many stakeholders concerned and may encroach upon EU citizens’ rights.

These criticisms are very much in line with our own assessment of the directive and it is unfortunate that the rest of the Member States have chosen to ignore them. After this week’s approval by the Member States it is now up to the European Parliament to prevent the directive (or its most harmful element, Article 13) from being passed into law. There is no date for the final plenary vote yet, but the final showdown is widely expected to take place anytime between mid-March and mid-April.

Internet is should be for the people

In the light of this we have now updated our overall analysis of the directive (which we had first published in January) to reflect the final compromise text. The final trilogue negotiations have resulted in changes to the text related to the Text and Data mining exception, the publishers right, the fair remuneration right and — most notably — Article 13. By and large the changes to the text have been minor and in line with our expectations, and as a result our overall assessment of the directive as a whole remains negative. The finals text will do a lot of harm to internet users and needs to be blocked from becoming law. Continue reading

After 30 months, EU legislators agree to sell out users and creators to big platforms and big content.

Caïn venant de tuer son frère Abel, by Henry Vidal
European users and creators deserve better
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After yesterday’s agreement between the European Parliament, the Council and the European Commission on a compromise text, the EU copyright reform process has entered into its final phase. The good news is that after yesterday’s compromise the text cannot get any worse: it will either be adopted or it will be rejected. The bad news is that the text that was agreed on yesterday is **the worst version that we have seen yet**. After three days of negotiations, the negotiators have agreed on a text that would benefit big corporate rightsholders, Google and other dominant platforms at the expense of users, creators and the rest of the European internet economy.

To understand what has happened during the negotiations, it is illustrative to look at the differences between the final compromise and the text that had been agreed among the EU member states last week (which was the result of horse trading between the French and German governments).

A win for dominant platforms…

Yesterday’s compromise text is largely in line with the French-German deal. This includes a terrible version of Article 13 that will severely limit users ability to express themselves online. It will also further consolidate the power of dominant platforms, as smaller platforms will struggle with implementing expensive filtering technology and supporting the increased costs for dealing with increased liability.

It also introduces a EU-wide neighbouring right for press publishers that will have very similar effects. It benefits dominant platforms who can afford compliance while creating additional costs and risks for smaller players. As a result, users will likely end up with less access to information and the diversity of information available online will likely suffer. Under these conditions it remains to be seen if rightsholders will indeed manage to extract more value from the large intermediaries.    

…at the expense of users and creators

As if this would not be bad enough, the negotiators have introduced last minute changes to the text that further weaken provisions that were intended to protect the rights of users and individual creators. The French/German deal did not (at least not clearly) include a UGC exception for users of every online platform, but it used language that at least applied to  user-generated content uploaded to the platforms covered by Article 13. The final compromise has adopted questionable language that may or may not  provide a meaningful protection for users of platforms covered by Article 13, depending on whether Member States are obliged to fully implement the existing quotation and parody exceptions provided in the InfoSoc Directive, and make them applicable to user-generated content, which is not evident from the text. Continue reading

Final countdown on Article 13: here is how bad it really is

Article 13 flowchart (detail)
Article 13: death by filters
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Today will see the third of the “final” trilogue meetings this week. Soon we will either have a final text of the copyright directive (and we are assuming it will be either bad or very bad), or it’ll be dead in the water. At this moment the fate of the directive largely hinges on the ability of the negotiations to find a compromise on Article 13. The negotiations this week rely on the mandate obtained by the Romanian presidency last Friday. This text, based on a compromise hashed out between France and Germany, has been widely characterized as the worst version of Article 13 yet.

While negotiators have been working on finding a final compromise this week, we have analysed the current text proposed by the presidency and created a flowchart of what’s in play. In its current version Article 13 now has nine operative provisions — now exceeding the number of articles the 2001 InfoSoc directive required to describe both the rights granted under copyright and the exceptions and limitations to those rights!

Article 13 flowchart (full) Continue reading