Today the Copyright working group of the Council is meeting for the first time under the new Bulgarian presidency. The agenda consist of discussions about articles 11 (press publishers right) and article 13 (upload filters for online platforms) and it appears that the Bulgarian Presidency is planning to push ahead on both of them in line with the one sided approach taken by the Estonian presidency. In the light of this meeting Pirate Party MEP Julia Reda has released a video featuring a number of MEPs from across the political spectrum speaking out against mandatory filtering of user uploaded content:
In the video the MEPs make it clear that filtering technology that would be mandated under article 13 will be used to limit the free expression of internet users in the EU. They also point out that it is highly problematic to require large corporations to install filtering technology that they will then operate outside of any public oversight and without any ability for meaningful recurse by normal users.
The examples provided by the MEPs in the video are a welcome reminder that it will not be enough to prevent upload filters from becoming mandatory by deleting article 13 from the proposed DSM directive, but that we we need to regulate the application of existing filtering technology and that that we finally need to positively define what rights users have when it comes to re-using existing works to express themselves online.
We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation.
Today’s topic for Copyright Week is Transparency: Whether in the form of laws, international agreements, or website terms and standards, copyright policy should be made through a participatory, democratic, and transparent process.
For Copyright Week last year we wrote about transparency and representation in relation to the public consultations leading up to the European Commission’s release of their new Directive on copyright in the Digital Single Market. Our headline read, “Evidence-based copyright policy making should be a no-brainer.” We argued, “It’s obvious to us that any legislative proposal should be developed from reliable, impartial economic and policy research whose foundation is based on evidence and facts.” But when we saw what was in the Commission’s draft, it became clear that a large swath of substantive feedback from the public was mostly ignored.
Here we are a year later, and the situation in the EU has not improved one bit.
With the arrival of 2018 the discussions of the Proposed Copyright in the Digital single Market Directive enters into its third year. After more than a year of discussions in both the Parliament and the Council, it is likely that 2018 will at the minimum see final positions from both institutions. Depending on how quickly these positions will be established we may even see the adoption of the directive in 2018. To get everybody up to speed here is a quick refresher of what is at stake in 2018:
1. The publishers right must die!
Form the start the idea of granting press publishers a neighbouring right (an extra layer of copyright) in their publications has been one of the most controversial parts of the Commission’s proposal. The idea, based on laws that have failed in both Germany and Spain, is so deeply flawed that there is almost no one from the academic community who is willing to argue in favor (there are of course lots of academics who oppose it). Even worse, in the course of 2017 it has become clear that both the European Parliament and the European Commission have tried to lock away self-commissioned studies that clearly show that the new right not only would be ineffective at directing views (thus, funds) back to publishers, it would also harm media pluralism and access to information.
In spite of the overwhelming amount of evidence speaking against it, and even though its original sponsor (Commissioner Oettinger) is no longer in charge of the dossier, the idea of granting press publishers more rights in order to economically strengthen them refuses to die. It is time that MEPs and the Member states realize that adopting laws based on wishful thinking is the opposite of evidence based policy making, and refuse to create additional rights for publishers. This should be easy as there is an alternative proposal that would strengthen the legal position of press publishers without threatening the freedom to link.
2. Real legal certainty for Text and Data mining!
One of the core problems of copyright systems without a flexible exception (like fair use) is that everything not specifically permitted in the text of the copyright law will be deemed an infringement. This has resulted in an unclear legal status regarding Text and Data mining (letting computers read and interpret texts and other data). Since most forms of text and data mining require the making of copies, rights holders argue that text and data mining needs to be licensed, even if the entity engaging in TDM has legal access to the text and/or data to be mined. Continue reading →
Within the new industry, news agencies fill the role of the objective gathers of facts. Agencies like DPA, AFP or ANP collect information and make them available to publishing companies who sometimes publish the information as is, but mostly use the information that they get from the agencies as an ingredient for their own reporting. Journalists rely on news agencies to confirm the accuracy of information they use in their reporting.
The heads of 8 major European news agencies have now entered the discussion about the ancillary publishers right for press publishers, via an open letter published in Wednesday’s edition of the French daily Le Monde (paywalled french language version here). They have done so taking the side of those press publishers who advocate for this right. The letter is a frontal attack on online platforms (Facebook and Google in particular) whom they accuse of profiting from hyperlinking to online new publications that are based on information gathered by the news agencies:
[The platforms] offer internet users the work done by others, the news media, by freely publishing hypertext links to their stories.
Publishersright.eu, the lobby platform set up by the EU press and news publishers associations contains a “mythbuster” section that proclaims that the publishers right “is not a link tax”, will “not break the internet”, and will not “be used to block access to publishers] content” (the last one stands in direct contruy7 [adiction to this statement by Prof. Höppner—one of the few academic proponents of the right). In the same vein the European Publishers Council is proclaiming (complete with animated GIF) that “the link is safe” and that the publishers right will lead to “more links”.
Unfortunately for these self appointed “mythbusters” the news agencies seem to have missed the memo and made it clear that the right is indeed an attempt to break the freedom to link. While this could be filed away as a simple communication mistake, the news agencies reveal a much deeper truth: It doesn’t really matter what the proponents of a new right claim with regards to how it will be used. Once a new right exists rights holders are incentivised to make maximum use of the new right. The statements from the news agencies and Prof Höppner make it clear that this will include attempts to charge for linking to and blocking access to content.
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 →
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 →
In July, ITRE Committee voted on an opinion that proposes to extend the ancillary copyright for publishers beyond the press, to include also academic publishers (read our commentary from July). In response, a large group of European academic, library, education, research and digital rights communities has published an open letter on Wednesday. In it, they point out that the proposed law will threaten Open Science and Open Access, and directly contradict the EU’s own ambitions in these fields.
Communia Association is one of the signatories of this letter. We are urging other organisations, especially those active in the fields of Open Access and Open Science, to express their support by signing this letter. Additional signatures will be collected until 1st October – you can sign the letter using this form.
Ancillary copyright extended
Ancillary copyright for publishers, a new right to collect payments and to control the use of headlines and snippets of news articles, has been one of the most controversial parts of the Proposed Directive on Copyright in the Digital Single Market. Both the rapporteur in the JURI Committee and the Estonian EU Presidency currently support this flawed proposal . They do so despite heavy criticism – not just from civil society, academia and libraries, or digital economy companies, but even from some of the Member States.
Press and academic publishers have completely different business models, based on different value creation chains. While press openly publishes content on the Web, academic publishers sell the works of academics at a hefty price, and with a heavy markup. Angelika Niebler, Herbert Reul and Christian Ehler, ITRE members who proposed the amendment that extended the right to academic publishers, have provided no rationale for granting this new right also to academic publishers. They also failed to explain why they are supporting a regulation that will create burdensome and harmful restrictions on access to scientific research and data, as well as on the fundamental rights of freedom of information.Continue reading →
Summer is definitely over in Brussels and in member states – everyone seems to be back to work, which means in our case back to the copyright discussion. Yesterday Statewatch published a first compromise proposal by the Estonian Presidency. The document refers only to parts of the Commission’s draft directive, namely Articles 1, 2, and 10 to 16. From the very beginning we have been involved in the discussions on ancillary copyright for press publishers (Art. 11) and the upload filter (Art. 13). On both of these issues the Estonian proposal contains two different approaches, each a fact which further highlights how divisive these provisions are among the member states on article 11. One of the versions somewhat improves the Commission’s proposal while the other one makes it much worse. On article 13 both versions would make the Commission’s already terrible proposal even worse.
Ancillary copyright for press publishers – to be or not to be?
On the issue of new rights for press publishers the Estonian compromise proposal does not really present a compromise. The two versions mark different sides of the spectrum. On the one hand a version that would enact a massive expansion of the rights of publishers that goes well beyond the Commission’s proposal that dealt with rights in digital uses of press publication only. On the other hand, we have a version that does not create new rights while still giving publishers tools to act against infringement.
The first option (which can probably be attributed to France) expands the original bad European Commission’s proposal if it comes to the scope of the ancillary copyright from digital publications to publications published in any media, including on paper (in the proposal the article would also apply to videos and photos). What is even worse, hyperlinking is explicitly included in the scope, as long as such links constitute a communication to the public (in the absence of clear guidance this would open a whole new can of worms). This version would be a clear win for big publishers, and a major restraint for free flaw of information online. Continue reading →
Last week the Culture and Education Committee (CULT) and the Committee on Industry, Research and Energy (ITRE) voted on their final opinions on the Commission’s Directive on Copyright in the Digital Single Market. As our friends at EDRi have highlighted, both committees voted for measures that would make the Commission’s already bad proposal even worse. The ITRE and CULT (not published yet) opinions are particularly bad regarding the question of new rights for publishers.
The introduction of a new right for press publishers (aka the “link tax”) to extract fees from search engines for incorporating short snippets of – or even linking to – their content in article 11 is one of the most controversial issues of the proposed directive. Adopting this type of ancillary right at the EU level would have a strong negative impact on all stakeholders, including publishers, authors, journalists, researchers, online service providers, and readers.
We know that previous experiments with ancillary copyright in Spain and Germany have failed, a fact that was already known to the Commission because it is acknowledged in its impact assessment leading up to the release of the original proposal. We’ve argued that a new right for press publishers would undermine the intention of authors who wish to share without additional strings attached, especially creators that use Creative Commons licenses to share their works. We urged that the provision be removed from the directive.
In recent months there seemed to be an increasing focus on neutralizing this contentious provision. MEPs such as IMCO Rapporteur Catherine Stihler and former Legal Affairs Committee Rapporteur Therese Comodini had gathered support for deleting the press publishers right. Despite of this, last month the new right was retained in the opinion of the IMCO Committee. The opinion removes the clause of the Commission’s proposal which would retroactively apply the publishers right to anything published in the last twenty years. Continue reading →
Tomorrow the Members of the Culture and Education Committee of the European Parliament (CULT) will vote on their position on the proposal on Copyright in the Digital Single Market directive. This will be the second vote in the European parliament after last month’s vote in the IMCO committee. While the CULT committee is nominally responsible for Culture and Education it seems rather likely that tomorrow’s vote will result in an one sided opinion that would support the key elements of the flawed directive, making them worse in many areas. Below is a quick rundown of what is on the table during tomorrow’s vote. We have listed voting recommendations for CULT MEPs interested in enacting real copyright reform that will foster Europe’s cultural and educational sectors:
Expand the scope of the text and data mining exception
We have argued many times that Text and Data mining should not be covered by copyright at all. A TDM exception such as the one proposed by the Commission would then be unnecessary. Any TDM exceptions enacted in spite of this would need to be as broad as possible both in terms of beneficiaries and in terms of purpose. Unfortunately the compromise amendment on the issue does nothing to broaden the scope of the proposed exception and merely reaffirms the Commission’s backwards looking proposal. MEPs should reject the compromise amendment and vote for AMs 337, 356, 360, 362 and 364 Instead.
Broaden the education exception to fit the needs of education in the 21st century
On the proposed education exception the Culture and Education committee seems intent to abandon the needs of 21st century educators. Instead of improving the Commission’s half-baked proposal, the compromise amendment reaffirms or worsens the most problematic elements of the proposal: Continue reading →