This post is based on the talk Anna gave during CopyCamp 2017 “Paradigm Lost? How Our Freedoms are Weaponized Against Us and What We Can Do About It”. A video of the talk is available here.
How do you lobby for a great copyright in the post-political world? With difficulty, since it is also a post-factual world: politicians seem to care more about marketing than evidence. Perhaps when the facts are not important we should then look for a better propaganda?
Copyright beyond the bubble
This “better propaganda” should not be populist or based on lies. Digital rights organizations need a better, compelling narrative to convince people to care more. We need to test new approaches because European citizens do not realize that they are bound by the copyright framework every time they access news, knowledge or entertainment on the internet.
We also need to find more compelling ways to talk about rights in the digital environment because these days everybody is a creator and the only difference is that some of us identify as such and many of us don’t. Those of us who don’t, also don’t think that our small acts of creativity such as memes or photos we post online are serious enough to give us this status, but this does not change the fact that we are indeed creators.
From creativity to celebrity
In both cases creativity is crucial for self-expression, and self-expression is key to one’s identity. Today all three: creativity, self-expression and identity become market commodities, increasingly so via social media. So what happens when they enter the market?
The last weekend of October in London, Mozilla organised Mozfest, its annual festival for the open internet movement. Mozilla wants to enable communities to contribute to making the internet a healthy place. The festival serves as a platform where civil society organisations, artists, journalists, copyright experts and other creators can come together to share and discuss the issues close to their hearts.
At Mozfest, COMMUNIA organised two session on copyright issues. We wanted to explain the role it plays online, but also to reimagine copyright that could support, and not hinder, new forms of creativity.
This is a slightly edited version of an analysis that was first published by Europeana on the Europeana Pro website
More than a year after the European Commission published its proposal for a Directive on Copyright in the Digital Single Market (DSM directive), the proposal continues to be discussed both in the Council and in the European Parliament. While the discussions in the European Parliament have recently slowed down to a crawl (the vote in the Legal Affairs committee is not expected before January), the discussions between the Member States in the Council are picking up steam: earlier this week, the Estonian Council presidency’s consolidated compromise proposal was made public.
The compromise proposal contains an entire new chapter (chapter 1a – Measures to facilitate collective licensing’) that contains an a new article (art 9a – ’Collective licensing with an extended effect’). To anyone familiar with the Commission’s proposal (and the critical reception by cultural heritage institutions) this addition will appear somewhat odd as the Commission’s original proposal already relied on ’collective licensing with an extended effect’ as a mechanism that would allow cultural heritage Institutions to make out of commerce works (OOCW) from their collections available online.
So what exactly is going on here? Articles 7-9 of the Commission’s proposal are aimed at enabling the cross border use of out of commerce works. This would allow cultural heritage institutions to make such works from their collections available online so that they can be accessed from everywhere within the EU. While we think that relying on extended collective licensing alone will not be sufficient to achieve this objective for all sectors and all types of work, we are happy with the ambition to solve this problem on an EU wide basis.
A legal basis for Extended Collective Licensing
By contrast, the newly proposed article 9a focusses on (existing) national extended collective licensing arrangements and would not have any cross border effects. Instead, it introduces provisions into the EU legal framework that would remove the legal uncertainty that currently surrounds the extended collective licensing arrangements that exist in a number of (mainly nordic) EU Member States:
A functioning copyright framework that works for all parties requires the availability of proportionate, legal mechanisms for the licensing of works. Systems such as extended collective licensing or presumptions of representation are a well-established practice in several Member States and can provide such solutions, […] Given the increasing importance of the ability to offer flexible licensing solutions in the digital age, and the increasing use of such schemes in Member States, it is beneficial to further clarify in Union law the status of licensing mechanisms allowing collective management organisations to conclude licences, on a voluntary basis, irrespective of whether all rightholders have authorised the organisation to do so (Recital 28a + 29c of the Estonian Compromise proposal)
Despite ambitious planning, the JURI Committee vote on the Copyright in the Digital Market directive seems increasingly unlikely to happen in 2017. Meanwhile, following the lead of the EPP, ALDE (The Alliance of Liberals and Democrats for Europe) published a new position paper on Copyright in the Digital Single Market earlier this month. ALDE seems to be deeply split when it comes to the question of copyright policy. Perhaps this is why the paper offers a very blurred perspective on how the group’s MEPs will vote in the upcoming votes in the Civil Liberties (LIBE) and Legal Affairs (JURI) committees in the European Parliament.
A blurred compromise to keep everyone happy
While many liberal MEPs are traditionally supportive of less restrictive copyright rules and value the protection of individual freedoms, ALDE’s official spokesperson for the copyright file, MEP Cavada is one of the most outspoken proponents of stronger copyright protection in the European Parliament.
Positions of the political groups in JURI with respect to selected elements of the DSM directive proposal [Source].
The new position paper seems to be an attempt to bridge both positions. Following a somewhat rambling introduction that extensively highlights the need to fight online piracy (which technically is not included in the scope of the DSM directive), the position paper states that attempts to protect copyright online should not infringe users’, consumers’ and citizens’ rights:
ALDE wants to protect copyright online because we need to ensure that creators are fairly remunerated for their creations. In taking measures to ensure this, however, ALDE is not ready to go as far as to infringe users’, consumers’ and citizens’ rights to exercise their freedom of expression online. Just as in working against any unlawful behaviour, online or offline, ALDE will do as much as possible, while maintaining a fair balance of fundamental rights, such as the right of information and the right of free expression.
Unfortunately the position paper leaves it unclear what this would mean for ALDEs position towards article 13 of the Commission’s proposal (which require upload filters for online platforms). Continue reading
For those watching the copyright debate in the European Parliament it is no mystery that European People’s Party is the key power to influence the future of the Digital Single Market in this area. The largest Parliamentary group, whose representatives hold crucial positions on the dossier, has adopted a group line on copyright. While both the LIBE and JURI Committees debate their compromise under EPP rapporteurs, what could possibly go wrong?
The hard line and the blurred line
The Parliamentarians affiliated with EPP have not presented a unified line in the reform debate, especially if it comes to content filtering (article 13 of the proposal). Their positions across various committees have ranged from hardliners such as Angelika Niebler’s, supporters of closing the value gap like Axel Voss, the current rapporteur at JURI, through the balanced position of Therese Comodini, Voss’ predecessor; to rapporteur Michał Boni’s decent draft report at LIBE or Róża Thun’s proposal for deletion tabled at IMCO.
In these circumstances EPP’s attempt to create a common ground is understandable – it is a way to preserve group unity. On the other hand, the exercise can only prove effective if it shaves off the extremist positions: of making the EC proposal even more troublesome for platforms and users as well as of deleting the article.
Positions of the political groups in JURI with respect to selected elements of the DSM directive proposal [Source].
The EPP group line adopted in July 2017 tries to reconcile a need to close the perceived value gap with some arguments protecting fundamental rights. The vision for EPP’s ideal article 13 is to ensure platforms enter into licensing agreements with rightholders to secure a better revenue for the latter.
Harming e-commerce, taking it easy on the filtering?
Similarly to the governments of France, Portugal and Spain, EPP is determined to change the interpretation of safe harbour that shields hosting providers and online platforms from liability for infringements committed by their users. In their words: Continue reading
Lately we have written so much about ourselves, human rights organisations, academics (1|2) and member states (1|2) criticising the upload filters proposed in article 13 of the proposed DSM directive that one could almost forget that there are indeed powerful forces who are pushing for these filters to become a reality.
A new set of documents leaked by Statewatch presents an (un)welcome reminder of of the fact that the idea of upload filters has powerful supporters outside of the music industry and that they wield considerable influence on the discussions in the council. The set of documents consists of a document containing “amendments to recitals 37, 38, 39 and Article 13” proposed by the French, Spanish and Portuguese delegations (dating from 2 october) and a document by the Estonian Council Presidency containing the questions raised to the Member States during 17-18 October meeting of the Council Working Party on Intellectual Property, which echoes the tone set by the amendments proposed by the three member states.
The amendments proposed by France, Spain and Portugal offer the clearest view yet on what the proponents of article 13 want to achieve. In their eyes article 13 is not about vague and ill defined “measures to ensure the functioning of agreements concluded” between rightsholders and online platforms but about creating a complete change of the legal status of open online platforms. The amendments proposed make an attempt to (a) re-define the activities of online platforms as communication to the public undertaken by those platforms and to (b) remove online platforms that allow uploads by their users from the protections afforded to them by the e-commerce directive.
Legal uncertainty exists as regards the conditions under which the provision of access by information society service providers allowing users to upload content can be considered as an act of communication to the public. This affects rightholders’ possibilities to determine whether, and under which conditions, their works and other subject-matter are used as well as their possibilities to get an appropriate remuneration for it. The present directive clarifies the conditions under which such information society service providers can be considered to perform an act of communication to the public and therefore do not fall in the scope of Article 14 of the Directive 2000/31/EC. (recital 37, additions by FR/ES/PT in bold)
While the proposed Copyright in the Digital Single Market directive is seen by most stakeholders as an attempt to adapt the copyright rules to the evolving realities of the digital economy, the French (and their Portuguese and Spanish supporters) are clearly of the opinion that it should be the other way around: according to them the realities of the digital world must be adapted to the principles of copyright orthodoxy (i.e to a legal constructs established in the late 19th century). Continue reading
It’s Open Access Week, the yearly global event to raise broad awareness about the opportunities and benefits for open access to scientific and scholarly research. Open Access Week—now in its 10th year—also mobilises action for progressive policy changes so that researchers and the public get immediate online access to the results of scholarly research, and the right to use and reuse those results.
During Open Access Week, we show our support for a variety of educational projects, publishing practices, and policy actions that push for open access to science and scholarship for everyone. In addition to advocating for the massive adoption of open access around the globe, we should also focus on protecting and expanding the fundamental user rights that permit access and reuse of copyrighted works.
Copyright law can boost or break new modes of research
We’re highlighting the importance of copyright law, which can either boost or significantly hinder Open Access. This year’s theme is “Open In Order To…”—an invitation to answer the question of what concrete benefits can be realized by making scholarly outputs openly available. We believe in the practice of being “Open in order to encourage new modes of research.” Creative Commons licensed publications and data can help realise the potential for scientific discovery because they are “open” for immediate access and reuse. CC licensed open access publications grant permissions that would otherwise be impossible under all-rights-reserved copyright schemes. But we know that everything will never be made available under an open license. That is why we strongly advocate for broad limitations and exceptions to copyright, especially for practices such as text and data mining. Continue reading
It seems like it is open letter writing season in Brussels right now. In the absence of any real legislative progress the directive on Copyright in the Digital Single Market, experts and other stakeholders are seizing the opportunity to make their voices heard. After more than 50 civil society organisations including Human Rights Watch, Reporters sans Frontiers and the Freedom of the Press Foundation issued a statement opposing the online filtering provisions proposed in article 13 of the Commission’s proposal, a group of more than 50 high profile copyright scholars has come forward with yet another statement opposing article 13.
In their paper “The Recommendation on Measures to Safeguard Fundamental Rights and the Open Internet in the Framework of the EU Copyright Reform” published on SSRC statement, the academics led by Professor Martin Senftleben (VU Amsterdam) restates the main problems posed by article 13 and recital 39:
The measures contemplated in Article 13 DSMD can hardly be deemed compatible with the fundamental rights and freedoms guaranteed under Articles 8 (protection of personal data), 11 (freedom of expression) and 16 (freedom to conduct a business) of the Charter of Fundamental Rights of the EU. The application of filtering systems that would result from the adoption of Article 13 DSMD would place a disproportionate burden on platform providers, in particular small and medium-sized operators, and lead to the systematic screening of personal data, even in cases where no infringing content is uploaded. The filtering systems would also deprive users of the room for freedom of expression that follows from statutory copyright exceptions, in particular the quotation right and the right to parody.
The adoption of Recital 38 DSMD would moreover lead to a remarkable restriction of eligibility for the liability privilege following from Article 14 of the E-Commerce Directive. Recital 38 DSMD does not adequately reflect the current status quo in the area of the safe harbour for hosting laid down by Article 14 E-Commerce Directive. […] The general requirement of “knowledge of, or control over” infringing user-generated content is missing. In the absence of any reference to this central requirement, Recital 38 DSMD is incomplete and fails to draw an accurate picture of the current conceptual contours of the safe harbour for hosting. […] Because of the ambiguous wording of Recital 38 DSMD, there is a real risk of modifying the notion of “communication to the public” considerably.
Anyone following copyright debate may have an impression it is all about “money, money, money” (Abba). In COMMUNIA we believe that such an approach shows deep misunderstanding about the function of copyright. Copyright is just one angle of approaching more broader challenge, namely providing a just framework for to access to knowledge, information and culture. A well balanced copyright system is one of the fundamental underpinnings of a knowledge-based society.
Possibly the strongest challenge to such as system is are the proposals for forcing online platforms to filter all content uploaded by their users, put down in article 13 of the proposed Directive on copyright in the Digital Single Market. We have underlined many times before that proposed regulation will have a chilling effect on sharing content, access to information and the the ability to operate open platforms online.
Today, over 50 NGOs (including COMMUNIA) representing human rights and media freedom have send today an open letter to the European Commission President, the European Parliament and the Council asking them to delete the content filter mechanism. This letter comes ahead of a crucial vote in the European Parliament’s Civil Liberties committee, in which the MEPs tasked with upholding our fundamental freedoms will give their opinion on the upload filters that the Commission wants to introduce through article 13. The signatories of the letter, which include many prominent human rights organisations like the Freedom of the Press Foundation, Human Rights Watch and Reporters without Borders, believe that the mechanism introduced through article 13:
- would violate the freedom of expression set out in the Charter of Fundamental Rights;
- provokes such legal uncertainty that online services will have no other option than to monitor, filter and block EU citizens’ communications.; and,
- includes obligations on internet companies that would be impossible to respect without the imposition of excessive restrictions on citizens’ fundamental rights.
If the European Union decides to approve the European Commission’s proposal, this would constitute an unprecedented step towards building an online censorship infrastructure. Similar filtering obligation have previously been rejected in the context of preventing terrorism and hate speech. Continue reading
This week we learned about a research study requested by the Legal Affairs committee regarding the potential impact of Articles 11 and 14-16 of the Commission’s proposed Directive on Copyright in the Digital Single Market. The research was overseen and published by the Policy Department for Citizens’ Rights and Constitutional Affairs.
We are especially interested in the assessment of Article 11—the provision that would create new rights in press publications that would allow to press publishers to control digital uses of even the smallest snippets of their content. COMMUNIA has long advocated that the press publishers right should be removed from the proposed directive. Not only is the mechanism ill-suited to address the challenges in supporting quality journalism, it would have the effect of decreasing competition and innovation in the delivery of news, limit access to information, and create widespread negative repercussions for related stakeholders.
The European Commission, which came up with this idea, has offered no data about how a new right would increase revenues to sustain a free and pluralist press.
On the other hand previous Academic research as well as statements from the media companies themselves confirm that Article 11 won’t accomplish its aims, and is a danger to access to news online. The independent analysis commissioned by JURI conforms this once again, which should finally put the nail in the coffin on the press publishers’ right. The report concludes:
There are real concerns surrounding the rather uncertain effects of the right, and many of the problems facing press publishers can be resolved by a much less controversial intervention. We therefore approve the proposal made in the draft JURI Opinion, namely that the press publishers’ right be abandoned and replaced with a presumption that press publishers are entitled to copyright/use rights in the contents of their publications. (p. 8)
The authors of the research take a look at instances where a press publishers’ right has already been implemented, such as Germany and Spain. They conduct interviews with stakeholders on the ground to analyse the implications and effects of the ancillary rights there.Continue reading