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

Article 13 flowchart (detail)
Article 13: death by filters
Licentie

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

Time to stop hijacking copyright to bolster the economic interests of specific sectors

A dragon devouring the companions of Cadmus
Support for Article 13 is disintegrating
Licentie

Ahead of today’s discussion of a new copyright mandate in the Council, which would pave the way for a final trilogue at the beginning next week, the situation is becoming increasingly messy. Over the last 24 hours various groups of rightsholders ( Europe’s biggest entertainment company , a number of smaller associations from the Audiovisual sector and an unprecedented coalition of big AV holders and half of the music industry ) have come out against the proposed directive as a whole and Article 13 in particular. With the defection of major music industry organisations from the pro-article 13 movement, the once-united front of rightsholders in favour of Article 13 seems to have completely disintegrated.  This makes it clear that the EU copyright reform process has been hijacked by the legacy entertainment industry in an ill-conceived attempt to re-establish their control over the distribution of cultural goods. Under these conditions it starts looking increasingly unlikely that the copyright directive will be adopted before the EU elections later this year.

In part these last minute statements are tactical interventions intended to maximise pressure on the negotiators to adopt rightsholders friendly positions, but they also point to a much more fundamental problem: Copyright is simply not suitable as a tool to support the specific business models of one part of the creative sector without causing massive problems in other sectors. In an environment where pretty much every online transaction somehow triggers copyright, messing with the contours of copyright (especially when it comes to liability for infringement) will have lots of unintended consequences that manifest themselves as collateral damage in other sectors of the digital economy. Continue reading

2019 will be a busy year for user rights’ advocates at WIPO

Public interest advocates at WIPO SCCR/38, Geneva, November 2018
We are ready for another year, fighting the good fight!
Licentie

In the age of connectivity, it is not enough to fight for better copyright laws for users in certain regions of the world. We need to advocate for baseline international standards that allow cross-border uses of copyrighted materials, for purposes such as access to knowledge and education, in each and every country of the world. That is why public interest advocates, Communia included, keep investing their energies in the international discussions on copyright exceptions, using their capacities of permanent observers of the WIPO’s Standing Committee on Copyright and Related Rights (SCCR).

The SCCR has a mandate to discuss, among other things, limitations and exceptions to copyright for libraries, museums, archives, persons with disabilities, and for educational and research activities. In June 2018, the Committee adopted Action Plans on Limitations and Exceptions, which include a series of events dedicated to analyze the situation of libraries, archives, museums, education and research, and to identify “areas for action with respect to the limitations and exceptions regime”. If planned correctly, with the main purpose to assess the needs of the potential beneficiaries of the exceptions, these events could advance the international agenda on copyright exceptions.

2019: regional seminars on copyright exceptions  

In order to fulfil the Action Plan on L&E, and in addition to the two bi-annual meetings (Geneva, 1-5 April and 21-25 October), the SCCR will host in 2019 a) three regional seminars on limitations and exceptions in Asia-Pacific (Singapore, 29-30 April, to be announced), Africa (Kenya, 12-13 June, TBA) and Latin-America (Dominican Republic, 4-5 July, TBA); and b) an international conference on exceptions and limitations (Geneva, 17-18 October). 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

Ahead of last trilogue: on balance the directive is bad for users and creators in Europe

Internet is for the peopleLicentie

Today we are launching a new minisite called “Internet is for the people” that provides an overall assessment of the Directive on Copyright in the Digital Single Market. Our assessment takes into consideration all the key parts of the Directive.

Our aim, with this project, is to present how the Directive  will either empower or hurt users and creators in the digital age. The rules that regulate creativity and sharing must be fair and take into account contemporary online activities and digital practices. Essentially, the internet needs to be for the people, and key legislation needs to be based on this principle.

In order to do this, we analysed nine different issues that are included (or have not been included) in the proposal for the Directive: Upload Filters, the Press Publishers Right, Text and Data mining, access to Cultural Heritage, Education, the protection of the Public Domain, a Right to Remix, Freedom of Panorama and Fair Remuneration for Authors and Performers. Each issue was then scored, allowing us to provide an overall score of the Directive based on an understanding of all elements of the proposal.

Too often, the Directive is reduced just to a few controversial issues: content filtering or a new right for publishers. These are clearly crucial issues, but it is important to understand that the Directive includes other rules that can also have massive effects on Europe’s research and science, education, cultural, or AI industry–just to name a few.

We decided to analyse the Directive through a particular lens: of the potential to either empower or hurt users and creators in the digital age. We are critical of views that the Directive simply attempts to regulate business relationships between two sectors, and that therefore the policy debate should be left to them. The Directive will have tremendous impact on all European citizens, who depend in all aspects of their lives on communication systems and digital tools that copyright law regulates.

The internet needs to be for the people. This means that core policies, like copyright law, need to be “for the people” by design. As our analysis shows, the final proposal for the Directive will likely be a legislative mixed bag. A range of positive developments concerning exceptions and limitations – rules that grant people the freedoms to use content for personal needs or public interest goals – are offered alongside other regulatory proposals that will have extremely adverse effects across all spheres of European society.

On Monday policy makers will have one more chance to fix some of the shortcomings of the proposed directive. Based on the current state of affairs it seems extremely unlikely that this will fundamentally alter the our negative overall assessment of the directive: Seen as a whole, the proposed Directive is bad, and will not make the internet work for European citizens.

Article 13: the house is on fire!

Brand in de lijnbanen op de schans aan de Smallepadsgracht
Lawmakers struggle to contain Article 13
Licentie

Last week, the German Council delegation shared a “non-paper” with proposals to mitigate the negative effects of article 13, which screamed “Houston, we have a problem”. On Monday the Romanian Council Presidency shared a working paper on article 13 that makes similar attempts to reduce the negative impact of article 13. And yesterday the representatives of the audiovisual and publishing sectors called for the suspension of the negotiations on article 13. These moves show that (1) upload filters are gaining opponents (or losing supporters) at a fast pace and (2) lawmakers are starting to envision the social and political consequences of this ill-conceived law proposal.

The Romanian proposal attempts to save the sharing culture, but fails spectacularly

Ahead of the Council Copyright Attachés meeting that took place yesterday, the Romanian Council Presidency proposed a possible compromise solution on article 13 that 1) exempts platforms from liability in certain situations (e.g. if they made best efforts to obtain an authorization from the rightsholders) and 2) introduces a mandatory EU-wide user-generated content exception to copyright, which allows users to upload and make available content generated by themselves, but not by others. The Romanian compromise further suggests to continue to discuss if online platforms that are microenterprises and small-sized enterprises shall be exempted or not from the obligations imposed by article 13.

The fact that the compromise solution presented by the Romanian Presidency contains the introduction of a UGC exception shows the intention to make a positive contribution to the negotiations. However, the drafting is far from bringing a meaningful solution for users. To start, the proposed exception only allows the use of parts of works, making it impossible for users to share user-generated content containing an entire artwork (e.g. a meme using a painting in its entirety) or an entire short work (e.g. a meme using a poem in its entirety). Then, it only allows users to share content generated by themselves, and not by others! What is the point of sharing a meme on an online platform, if other users cannot interact with it, by sharing it too? 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
Licentie

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

Copyright reform still stalled, but there is some good news for the Public Domain

Wijsheid blijft langer dan schoonheid
some light in the shadows of the big controversy
Licentie

After last weeks inconclusive “final” trilogue, the discussions about the EU copyright reform package are paused for their third (!!) winter break. When they resume in January under the Romanian EU presidency the negotiators will be under a lot of pressure to find a politically viable compromise on Articles 13 and 11 and a few other controversial parts of the proposal. In the shadow of these more controversial elements of the proposal the negotiators have managed to provisionally agree on a large number of other issues and among these there are a number of positive developments.

From our perspective the most positive development is the fact that based on an amendment proposed by the European Parliament, the negotiators have provisionally agreed to include a Public Domain clause in Article 5 of the Directive. This clause intended to ensure that reproductions of works in the public domain can no longer be protected by copyright or neighbouring rights (as it is currently the case in a number of EU member states such as Germany and Spain). This is not only welcome because it would solve a real problem or because it would turn one of the recommendations of our Public Domain Manifesto into law, but also because it will be the first ever mention of Public Domain in EU copyright framework! Continue reading

Art 4/2 goes against CJEU landmark ruling on copyright exceptions

Untitled
Do not set a dangerous precedent for user rights!
Licentie

The Court of Justice of the European Union has not had many opportunities to review the EU legal framework for exceptions and limitations to copyright, and in the few cases where it had to interpret an EU exception, it has not always adopted positions that are favourable to the beneficiaries of the exceptions. Yet, there is one case, a landmark case for user rights, involving the Technical University of Darmstadt and publisher Eugen Ulmer KG, where the Court exemplary defended the position of such beneficiaries against the rights holders. Now the EU lawmakers want to adopt a law that fundamentally undermines the protection granted by that CJEU ruling to user rights.

How did the CJEU ruling protect user rights?

The TU Darmstadt case revolved around the EU exception that allows public libraries and other institutions to digitize works in their collections and make them available in dedicated terminals located in the libraries reading rooms or elsewhere on their premises (art.5(3)(n) of the InfoSoc Directive). The dispute had several legal issues, but the one important for the analysis of art 4, paragraph 2 of the proposed Directive for Copyright in the Digital Single Market (DSM Directive) is whether the libraries could rely on said exception even if publishers were offering to license a digital version of the books.

The EU exception embodied in art.5(3)(n) of the InfoSoc Directive covers “works and other subject-matter not subject to purchase or licensing terms”. Publishers argued that the mere fact that the rightholder offers to conclude a licensing agreement with a library is sufficient for ruling out the exception. The CJEU considered, however, that, if the mere act of offering to conclude a licensing agreement were sufficient to rule out the application of the exception, such interpretation would:

  1. Be difficult to reconcile with the aim of the exception, which is “to maintain a fair balance between the rights and interests of rightholders, on the one hand, and, on the other hand, users of protected works who wish to communicate them to the public for the purpose of research or private study undertaken by individual members of the public.”
  2. Imply that “the rightholder could, by means of a unilateral and essentially discretionary action, deny the establishment concerned the right to benefit from that limitation and thereby prevent it from realising its core mission and promoting the public interest”.
  3. Be “liable to negate much of the substance of the limitation provided for in that provision, or indeed its effectiveness”, since the limitation would apply only to those increasingly rare works of which an electronic version is not yet offered on the market.

Continue reading

A Waivable Press Publishers Right Would Be Less of a Disaster

Man telt munten en een jongen brengt hem geldzakken
Or here’s an idea: just delete it!
Licentie

For the entire duration of the current EU copyright reform we have advocated that the press publishers right be deleted. Publishers already benefit greatly from the copyrights they have in their content, and don’t need an additional exclusive right to protect or exploit those rights. As is clear from past experiments with the right in Germany and Spain, an additional right for press publishers will not support quality journalism, increase the diversity of media content, or grow the digital single market. Instead, it will negatively affect access to information and the ability for publishers to share using the platforms, technologies, and terms beneficial to them. The existing problem can be addressed by observing a legal presumption that press publishers are entitled to enforce the rights over the works or other subject matter that are licensed to them.

But here we are now years later in the thick of the trilogue negotiations, and the EU legislator is finally trying to figure out what to do about Article 11. Similar to Article 13 and content filter, we expect that the final compromise text of the directive will include some version of the press publishers right.

The waivable press publishers right

Our long-held view remains: Article 11 should be removed from the copyright directive. The provision is patently harmful to journalism, access to information, and the digital single market. The option to make the press publishers right waivable is simply one way to slightly improve the press publishers right if deletion is impossible. If the negotiators can’t be convinced by the mountains of research, empirical evidence observed in prior trials, and near universal public opposition to this unnecessary right, then the legislator must do everything it can to mitigate the negative effects that would be faced by news publishers and news seekers in the EU. Continue reading