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

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.

EU Parliament Vote: An Unprecedented Copyright Giveaway

Caïn venant de tuer son frère Abel, by Henry Vidal
European Parliament sells out user rights
Licentie

There is no way around it, the outcome of today’s vote on the copyright directive in the European Parliament is a big loss for user rights and the open internet. MEPs have decidedly sided with the demands of the creative industries to hand them more control over how we access, use and share copyrighted works. Out of the seven issues that we listed this morning the European parliament voted against our position every single time.

Taken together the positions adopted by the European Parliament this morning amount to an unprecedented expansion of exclusive rights for a  small subset of already-powerful interests:

  • Under Article 13, rightsholders would get more control over how copyrighted works can be shared on online platforms. It will allow them to force platforms to filter content in ways that will negatively impact users rights.
  • Under Article 11 press publishers would get an entirely new right that will allow them to control how we access and reference press publications.
  • Under Article 3 rightsholders would get the right to prevent anyone other than scientific researchers from using computers to analyse information contained in legally accessible works.
  • Under the new Article 12a sports events organizers would become copyright holders allowing them to prohibit anyone from sharing photos or other recordings of sports events.
  • Finally under the new Article 13b image search engines would need to obtain licenses for even the smallest preview images that they display as search results.

There are a few bright spots in the report adopted today, such as a slightly beefed up education exception and better mechanisms allowing cultural heritage institutions to provide access to out of commerce works, but on balance the result of today’s vote amounts to a substantial weakening of the public domain.

In having chosen the side of the content industries MEPs have turned their back on the potential of an open internet to foster research, access to information and as a driver of creative innovation. This happens against the backdrop of serious concerns from academics that these new rights may be ineffective and will possibly even entrench the dominant position of the dominant platforms providers.

With today’s adoption of the report the path is now clear for negotiations (the so called “trilogue“) between the Parliament, the Council and the Commission (see this helpful infographic for an overview of the remaining steps). Given that on most issues the positions of the three legislators are very similar, this process, which will be guided by the Austrian Presidency, will likely be relatively swift. Once these trilogue negotiations are complete, the resulting text will once more be voted in the European Parliament. This vote, which will likely take place at the end of this year or early next year will be the last possibility to prevent (or at least limit) the effects of today’s land grab by rightsholders. Stay tuned for a more extensive analysis over the next few days.

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
Licentie

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

Fair and flexible: what we can learn from Canadian copyright law

Spotprent op het bedrog van de firma C. de Bruyn & Zonen
The "fair dealing" exception
Licentie

With the EU and other states looking to modernise copyright law for the digital era, education exceptions in copyright law are a hot topic. Particularly, the second paragraph of Article 4 of the proposed directive on Copyright in the Digital Single Market that gives room to educational licenses is being contested by educators, learners, and educational organisations. Canadian copyright law includes the doctrine of “fair dealing” — a unique version of a common exception. The European approach sees legal concepts determined by rightsholders through license agreements. Anxious to protect their position of power, representatives of rightsholders in Europe have often pointed at the Canadian exception as a dangerous example that has negatively impacted the educational publishing industry in Canada. These statements do not hold any merit. The Canadian doctrine offers both a solution to the legal question of how copyright exceptions can be drafted to the benefit of education and should inspire countries around the world who want to improve education exceptions. Continue reading

As Council & Parliament edge towards finalizing positions, Article 13 remains a mess

Closeup of Art 13 flowchart
Art.13 in 3 flowcharts
Licentie

As the summer break draws closer both the European Parliament and the Council are intensifying their efforts to wrap up their positions on the proposed Copyright in the Digital Single Market directive. In both legislative bodies Article 13 (the upload filters for online platforms) remains the main stumbling block and both the Bulgarian Council presidency and the EPs rapporteur (MEP Voss) have have set deadlines this week to wrap up the discussion on Article 13.

Last week (after yet another inconclusive meeting on Article 13) MEP Voss has asked the political groups to provide him their final written comments “on the MAIN and MOST IMPORTANT open issues” by Wednesday the 23rd. On the same date the Bulgarian Council presidency has scheduled an attaché meeting to discuss the latest compromise proposal.

In the light of these (final?) attempts to wrap up the discussion it is important to take another look at how the discussion has evolved since the Commission published its proposal and how the 3 different versions of Article 13 compare to each other. In order to do so we have analysed the internal logic of the Commission proposal, the last Bulgarian compromise proposal and version 6 of the European Parliament’s Legal Affairs committee compromise text and depicted the most important elements in a series of flowcharts (see below). Even a casual glance at these makes it clear that both the Council’s and the Parliament’s changes to the text have resulted in vastly more complex versions.

Commission proposal: Simple language that creates a legal mess with lots of uncertainties.

Compared to the other two versions the Commission’s proposal is a thing of beauty. The article consists of three relatively concise paragraphs which results in a relatively straightforward flowchart: Continue reading

New study: ever more complex copyright is holding back creators

Creative Jail
Copyright must not become a creative jail
Licentie

One of the biggest shortcomings of the discussion on copyright is that most of it seems stuck in a fairly outdated creators vs users dichotomy. Copyright laws around the world are generally structured in such a way that they grant exclusive rights to creators and try to balance these with a limited set of rights for users (in the form of exceptions or limitations to copyright). Based on this design it is widely assumed that more (or stronger) exclusive rights benefit creators and that more (or broader) exceptions to copyright benefit users.

This conception is problematic on a number of levels. For one it is clear that creators benefit from user rights that ensure that users have a basic level of access to culture through educational systems and via public institutions such as museums and libraries. On the other hand users benefit from the exclusive rights granted to creators as they incentivise the very production of culture and knowledge that they want to access.

A more fundamental challenge to this general understanding of copyright is posed by the fact that the roles of users and creators are not mutually exclusive,  but overlapping. Many creators are also users of copyrighted materials and the other way around. The technological development of the past two decades has contributed to this blurring of the boundaries between creators and users. Digital technologies greatly facilitate both the creative re-use of existing works and the distribution of the resulting new works. This development has resulted in the emergence of the (somewhat nonsensical) category of “user generated content” and concepts like the “prosumer“.

These concepts deal with users becoming creators, and there are relatively straightforward answers to the challenges posed, such as the need to introduce an exception for user generated content in the EU copyright framework that we have been advocating for. But there is another more interesting side of the coin: creators becoming users. While it is true that creators have always appropriated the works of those authors who came before them, these dynamics have been turbocharged by the digital revolution. Creators have entire libraries of content at their fingertips, and the tools to manipulate, incorporate and build on existing works are becoming increasingly sophisticated. These are exciting times to be a creator, but this new reality also brings creators into contact with the limitations to their creative freedom imposed by copyright law. Continue reading

Mercosur-EU Free Trade Agreement: a bad deal for the public domain

Handel en koopvaardij
Stop the secret erosion of the Public Domain
Licentie

Contrary to what the negotiating parties expected (and what many civil societies organizations feared), the Mercosur-EU Free Trade Agreement (FTA) was not signed during the World Trade Organization (WTO) Ministerial Conference that took place at the beginning of December in Buenos Aires. Thus, the signing of the FTA that has been negotiated for almost twenty years was postponed once again. Over this time the negotiations were frozen during the era of the leftist governments in South America, but regained speed after the arrival of neoliberal governments to Brazil and Argentina.

Like many other multilateral agreements that have been negotiated in recent years (TPP, TTIP, etc.), the Mercosur-EU FTA covers a large number of areas (not all strictly related to trade) ranging from the exchange of goods to capital movements, phytosanitary measures, electronic commerce and intellectual property (IP). The area of ​​negotiation related to IP is extremely broad, including patents, trademarks, geographical indications and copyright, among other topics.

From TRIPS to TRIPS Plus

In most of the issues related to IP, the Mercosur-EU FTA goes beyond the international obligations imposed on the countries in 1994 with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in the context of the creation of the World Trade Organization. TRIPS established a minimum regulatory floor on IP that forced a large number of countries, including those of the Mercosur, to modify their laws, establishing restrictions on the circulation of knowledge and negatively affecting the public domain. In the field of copyright, TRIPS established a minimum copyright term of the author’s life plus 50 years, meaning that countries like Uruguay, which at that time had a term of only 40 years, was a major change. TRIPS also forced the countries to establish criminal penalties for IP infringements conducted on a commercial scale, as well as to protect software using the same regulatory framework as that applied to literary works. While some of these measures were already established in the Berne Convention and other treaties administered by the World Intellectual Property Organization, TRIPS stipulated economic sanctions for countries that did not comply with the obligations, which resulted in rapid adaptation to a new regulatory framework. Continue reading

The Estonian Presidency’s new (and optional) TDM exception: small potatoes

Man bekijkt een schilderij door een vergrootglas, Honoré Daumier, 1847
The reform needs major fixes, not minor tweaks
Licentie

Ahead of this week’s EU Council meetings of the Working Party on Intellectual Property (Copyright), the Austrian government has helpfully shared the Estonian Presidency’s revised compromise proposal on Articles 3 and 6 (including relevant recitals).

We’ve been following TDM with interest since the European Commission published its proposal on copyright in the Digital Single Market. Even though the Commission’s exception for TDM would be mandatory, we criticised their plan as not going far enough, as it would limit the beneficiaries of the exception only to research organisations, and only for purposes of scientific research.

The Estonian revisions leaves intact the Commission’s obligatory TDM exception that would apply to research organisations for purposes of scientific research. And, as expected, it continues to recommend that the beneficiaries originally contemplated by the Commission be expanded to include cultural heritage institutions. But the most significant change offered in this updated compromise proposal is an additional and optional exception in Article 3:

(5) Member States may provide for an exception or a limitation […] for temporary reproductions and extractions of works and other subject-matter that form an integral part of the process of text and data mining, provided that the works and other subject-matter are accessed lawfully and that the use of the works or other subject-matter for text and data mining is not expressly reserved by the rightholder.

This additional exception would apply to beneficiaries other than research organisations, and for uses other than scientific research. But those acts would be limited in that they only would cover temporary reproductions and extractions, and only if the rightsholder does not prohibit it. Continue reading