This week, Politico.eu has shared a “non-paper” prepared by the European Commission on article 13, ahead of the next trilogue on 13 December. The Commission has been tasked during the recent trilogue meeting with proposing a compromise solution on the issue of “mitigation of liability in the absence of a license”, in face of diverging views between the European Parliament and the Council.
In general, any direction on this piece of regulation seems to be lost, with actors participating in the trialogue willing to treat the article like a puzzle, in which puzzles can be rearranged in any way possible – beyond the scope of any previously negotiated and legitimized mandate. The process once again proves to be obscure and lacking with regard to basic rules of participatory policymaking.
The Commission was given several guidelines. These include an assumption that platforms do communicate to the public and need to obtain licenses or that automatic blocking should be “avoided as much as possible”, but is also not forbidden.
Earlier this week, we published four principles, based on which we plan to evaluate the proposed language for article 13. We believe that any version of Article 13 that does not take these four principles into account will need to be rejected in the final vote taken by the European Parliament.
We decided to check the Commission’s proposal, included in the non-paper against our principles. This has been made difficult by the fact that what is proposed in the non-paper is in many ways vague. Once it becomes more substantial, we will be able to make a definitive judgement. But even now, lack of details on some issues – such as protection of content fitting copyright exceptions from overfiltering – is telling. Continue reading
We have argued again and again that copyright reform is also fundamental rights matter – therefore we co-signed an open letter to the European decision-makers asking them to add human rights safeguards to Article 13 of the proposed Copyright Directive on the Digital Single Market throughout the negotiation process.
The fundamental rights safeguards crucial for ensuring compliance of the new Directive with the Charter of Fundamental Rights are in accordance with our four principles for minimising harm to users, creators and the internet. The letter signed by 27 fundamental and digital rights organizations raises concerns about the current state of play for Article 13 and calls for:
Platforms control all information available on the internet and they are empowered to rank and take down content at their discretion. These platforms serve “the internet” as we know it now. Internet platforms are able to make decisions about freedom of expression with no transparency or accountability and the proposed Directive does not change that. In cases where content is blocked or taken down, it is critical that they properly justify their decisions; decisions that should be subject to proper redress mechanisms to ensure free speech and freedom of information. Besides providing an alternative dispute resolution, the EU could provide, for free, legal mechanisms across the EU to settle disputes between users, copyright holders and internet platforms.Continue reading
Later today the negotiators of the Commission, the European Parliament and the Council will meet for the 4th trilogue meeting. After having dealt with less controversial parts of the proposal during the three preceding meetings, tonight, will finally see a discussion about Article 13 of the proposed DSM directive.
Given that all three legislators bring similar versions of article 13 to the table, we can expect that a final compromise text will include some version of the article 13 upload filters. There is still a good chance that the negotiations will be inconclusive or that the eventual outcome of the trilogue negotiations will not be approved by either the Member States or the Parliament (which would mean that the directive will fail and there will be no upload filtering requirement for the foreseeable future). But in the context of the ongoing trilogue, the deletion of article 13 (which has been our position so far) is not an option anymore.
This raises the question of how the damage that article 13 will do to the internet ecosystem and freedom of expression can best be contained. Before we do so let’s take a quick look at the positions that are on the table:
EP position: general blocking of all unlicensed content
The provision adopted by the European parliament can only be described as a total disaster. As the result of a misguided attempt to remove the mention of “measures” from the text of the article the European Parliament adopted a version of article 13 that makes platforms liable for copyright infringements for every single work uploaded by their users. This would include any photo, drawing or text uploaded by a user, regardless if these are old works, works that have been created for the express purpose of being shared widely, or the latest blockbuster movie. As a result of making platforms liable for all works uploaded by their users, they are practically forced to install filters that will block everything that has not been licensed to them. In other words, the EP version of article 13 would turn open platforms into platforms that distribute content licensed by the entertainment industry and nothing else. Continue reading
One of the certainties in copyright policy discussions is that most arguments are made purportedly on behalf of individual creators. Case in point is the EU copyright reform, where the music industry is claiming that Article 13 will benefit creators, where publishers are claiming that they need a publishers right so that journalists get properly rewarded, and where YouTube is claiming that Article 13 will hurt creators. In most of these cases creators are merely used as pawns in the game, in which large intermediaries on both sides of the debate try to ensure that they can gain or maintain as much control as possible over the distribution chain for themselves.
With all this attention for the wellbeing of individual creators it is surprising how little attention has been paid to another provision of the proposed copyright directive. Even worse, a proposal by the European Parliament to include a measure that would directly benefit authors and performers (at the expense of rightsholders pretending to act on their behalf) is currently is facing opposition from Member States.
Under the title “Measures to achieve a well-functioning marketplace for copyright” the Commission had proposed a number of measures aimed at strengthening the position of creators in contractual relationships with intermediaries. Specifically Article 14 introduces a transparency obligation for intermediaries towards rightsholders and Article 15 contains a contract adjustment mechanism intended to give creators some recourse if their works ends up being much more successful than originally envisioned and after which they have already signed their rights away.
From the get go these measures had been criticised by organisations representing performers as not strong enough to really improve the negotiation position of creators. These have been advocating for an unwaivable right to receive equitable remuneration (something that we considered to be problematic because it would limit the ability of creators to use open licenses).
These calls for such an unwaivable right were ignored, but in september the European Parliament included the addition of a right to fair and proportionate remuneration. It is one of the few positive elements in an otherwise disastrous position. Where an unwaivable right would have made it impossible for creators to freely share their output (if they wanted to do so), the language proposed by the European Parliament should help to get more money into the hands of those creators that actually want it. Continue reading
On 19 November 2018, 54 NGOs (including COMMUNIA) representing human rights and media freedom sent a letter to the Council of the European Union. The letter raises ongoing concerns regarding the proposal of the Directive on copyright in the Digital Single Market. The signatories underline that the current proposal risks creating severe impediments to the functioning of the internet and the freedom of expression of all, and urge the Council to take citizens’ rights into consideration during the trilogue negotiations:
For the ongoing trilogue negotiations, we urge you to reject obligatory or “voluntary” coerced filters and to keep the current liability regime intact. Enforcement of copyright must not become a pre-emptive, arbitrary and privately-enforced censorship of legal content.
Moreover, we ask you to hear the voice of academic research that a press publishers’ right will not have the intended effect and will instead lead to a less informed European society.
The letter is not only another call for a productive re-shaping of the future European copyright framework. It is also a strong voice against the predominant market-only narrative around the ongoing reform. NGOs continue to raise concerns related not just to the economic impact of the new Directive, but its deep influence on society, openness, fundamental rights and access to knowledge.
You can read the letter here (pdf).
Not surprisingly, the letter focuses on the most disputed provisions–Article 13 upload filters and Article 11 ancillary copyright for press publishers. Since the beginning of the legislative process COMMUNIA has worked on nearly all parts of the Directive comments (including the new educational exception, TDM provisions and others), and we regret that there seems to be little attention paid to these other important aspects as policymakers focus only on the most controversial parts of the plan.
Two weeks ahead of the second trilogue meeting on the 26th of November where the most controversial parts of the Copyright Directive will be discussed for the first time, various stakeholders are starting to position themselves for the final stages of the reform process. Yesterday Politico.eu leaked the compromise suggestions prepared by the Austrian Presidency for articles 11 and 13. Unsurprisingly the suggested texts maintain the general approach that was cemented by both the Council and the Parliament over the summer (see analysis by MEP Julia Reda here). By now it is clear that regardless of how much we argue that Article 13 should be deleted and that Article 11 should be limited to a presumption of representations neither of these two things will happen.
Limiting the damage by clearly identifying the services targeted
Under these conditions it seems that the most promising approach to minimize the harm that will be caused by these articles will be to limit what type of services they apply to.
Article 11 should be modified in such a way that it only applies to search engines and news aggregators. These are the type of services that press publishers are claiming to cause them harm (which we continue to doubt). This would prevent a lot of legal uncertainty (and thus damage) for everyone else on the internet.
The same approach makes sense for article 13. The music industry and other rightsholders have consistently argued that they are harmed by large online platforms that allow users to share audiovisual (AV) works. Given that the stated objective of the proponents of article 13 is to create a better bargaining position for rightsholders vis a vis YouTube, Facebook, Google and other commercial platforms, it seems reasonable to limit the types of services that would need to comply with article 13 to for-profit audio visual platforms that compete with licensed services only. Such a measure would prevent a lot of legal uncertainty for platforms that do not deal with AV works or do not operate on a for profit basis. Continue reading
Last month the notorious EU Parliament vote approved almost all of the worst measures of the proposed Directive on Copyright in the Digital Single Market. It was a significant setback for user rights and the open internet.
Recap: 12th September Parliament vote
The Parliament voted in favor of Article 13, which even though it didn’t mention explicitly, would in practice force online platforms that host significant amounts of user-uploaded works to filter all content for copyrighted materials and prevent the upload of those works unless a license has been agreed to. If the platforms don’t do this, they would be liable for copyright infringements of their users.
They approved Article 11, which gifts a new copyright-like right to press publishers that will allow them to control how we access and reference press publications and news stories online.
The text and data mining provisions of Article 3 pretty much stayed the same, with a mandatory exception carrying through, but only one which can be taken advantage of by not-for-profit research organisations, and only for the more limited scope of scientific research. An optional addendum would permit an expanded exception applicable to all, but only if the rights holders in the underlying works don’t object to it, or arrange their own licensing requirements.
Article 4, the copyright exception for education applying to digital and cross-border teaching activities, while being seriously improved over the Commission version, still contains the fatal flaw that the mandatory exception can be essentially ignored if there is appropriately licensed content made available in a Member State.
To add insult to injury, the Parliament doubled down on their rights giveaway bonanza, approving Article 12a to grant sports events organizers to prohibit anyone from sharing photos or other recordings of sports events. And the new Article 13b requires that image search engines to obtain licenses for even the smallest preview images that they display as search results.
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.
On the 5th of July a large majority of the Members of the European Parliament voted against fast-tracking the report of its JURI committee on the Copyright in the Digital Single Market directive so that the full parliament could discuss the contents of the report and make adjustments to a number of controversial provisions. This discussion has taken place over the last few weeks and tomorrow marks the day when the European Parliament will take a final vote on the report.
On the table are a wide range of proposals to amend three of the most controversial parts of the proposed directive, as well as a number of attempts to address omissions in the original text. However, large parts of the JURI text, such as the exceptions dealing with education and access to cultural heritage, have been left untouched and will not be affected by Wednesday’s vote.
EU lawmakers will have the opportunity to agree on some meaningful improvements to the proposed directive which would then become part of the Parliament’s position for the upcoming trilogue negotiation with the European Commission and the Member States. An improved Parliament position is badly needed since the European Commission’s original plan was terribly disappointing and the Member States have adopted a position that is even worse on crucial parts of the proposed directive. In order to keep open the possibility that the EU copyright reform process will result in real improvements to the EU copyright system MEPs must:
- Text and data mining: Vote for an expanded version of the exception for text and data mining in Article which would allow anyone to text and data mine all legally accessible copyright protected works. This would be guaranteed by a set of amendments tabled by a cross-party coalition called the Digital Agenda Intergroup. Not adopting their amendments would mean that Europe will shut itself off from an essential tool for scientific, societal and economic progress.
- Press publishers right: Delete the unnecessary and counterproductive Article 11, but it deletion is not possible, limit the most negative effects by refusing to grant press publishers additional rights that will hinder access to knowledge. This would be guaranteed by sets of amendments proposed by the Digital Agenda Intergroup and by the Greens/EFA political group.
- Upload filters: Ensure that the attempts to address an imaginary value gap driven by the music industry by introducing mandatory upload filters do not damage the open nature of the internet and limit the freedom of (creative) expression online. In addition to deletion of Article 13 the damage can be limited by adopting amendments proposed by the Internal Market and Consumer Protection committee or the Digital Agenda Intergroup.
- User-generated content: Vote in favor of the new amendments that clarify that users may engage with copyrighted works through remixes, memes and other types of user-generated content (UGC). Support for UGC was indicated in the JURI recitals, but left out of the article text. There are amendments tabled the Digital Agenda Intergroup as well as several MEPs including Cavada, Reda, Adinolfi, and Maštálka.
- Freedom of Panorama: Vote in favor of new amendments that clarify the ability for European citizens to take and share photography of artworks and architecture in public spaces (freedom of panorama). There are amendments tabled by the Digital Agenda Intergroup as well as MEPs Maštálka and Reda.
- New rights for sports broadcasters and image search: Vote against the additional copyright protection gifted to sports events organisers snuck into the JURI report, as well as the addition of a licensing requirement for image search engines. Neither of these amendments were debated nor received a sufficient level of scrutiny by the Parliament, and both would result in substantial expansions of the scope of copyright that must be opposed given the absence of any evidence supporting such measures.
- Support for the public domain: Vote in favor of the amendments that add a positive definition of the public domain to the EU copyright framework. Copyright law takes a big part of its legitimacy from the fact that it creates temporary exclusive rights and this fundamental principle deserves explicit recognition in EU law. MEPs should support the amendments introduced by MEP Adinolfi.
It is less than a week before the decisive vote on the proposed Directive on Copyright in the Digital Single Market. In the past few weeks MEPs have tried and failed to come up with a compromise position on the most controversial element of the directive proposal, the upload filters for online platforms that would be mandated by Article 13. As a result all options ranging from filtering obligations that would cripple online platforms to the deletion of Article 13 remain on the table for next week’s vote. On a positive note, MEP Dutch Marietje Schaake has tabled positive amendments to Article 3, which bring the exception as close as possible to the rule “The right to read is the right to mine”.
Article 13 still spells trouble for the knowledge community
We have been univocal in our conviction that the upload filters mandated by Article 13 are a terrible idea. They would limit the freedom of expression of European internet users and creators, and allow big corporate rightsholders to establish themselves as gatekeepers of cultural expression that would limit cultural diversity online. We are also concerned about the effects that filtering requirements would have on access to knowledge.
While most of the proposals on the table explicitly exclude open knowledge repositories like Wikipedia, open access publication platforms and free software repositories from the filtering obligations (and liability risks) established by Article 13, this does not guarantee that the directive will not limit access to knowledge and culture and damage the public domain. Exempting these service may protect them from the immediate negative effects of the Directive, but but it would not take away legal uncertainties for innovators in this space.. This is why projects from Wikipedia to GitHub to the library and research community still oppose Article 13. Just yesterday, Jimmy Wales, a Wikipedia co-founder, warned again that “foolish, detrimental changes to the law could make it really hard for future platforms to allow people the freedom to create.”
Jimmy Wales in discussion with MEP Axel Voss in the European Parliament (Sebastiaan ter Burg – CC-BY)
The decentralised nature of the internet has enabled a radical opening up of knowledge and a culture of sharing that has reduced the ability of commercial intermediaries to control and limit access to knowledge for profit making purposes. Continue reading