As part of our implementation project we are tracking the national implementations of the DSM directive in the different EU member states and are working together with local advocates and civil society organisations to make sure that national implementations are as good as possible from the users and public interest perspectives. As part of this work we are also occasionally providing input into national legislative processes. Earlier this week we made a submission to the public consultation in Hungary and expressed concerns about shortcomings of the Dutch implementation law in a letter to the Dutch Parliament.
Hungary: The importance of the pastiche exception
Last month the Hungarian Ministry of Justice and the Hungarian Intellectual Property Office (HIPO) published a consultation proposal on the transposition of the DSm directive into Hungarian law.
Hungary is one of the EU member states that currently does not have an exception for parody, caricature or pastiche in their Copyright Act. Article 17(7) of the DSM directive requires all Member States to “ensure that users […] are able to rely” on exceptions or limitations authorising use “for the purpose of caricature, parody or pastiche”. Consequently Hungary must introduce such an exception as part of the implementation of the directive. The consultation proposal identified two different options to meet this requirement:
- an exception allowing “anyone to use any work for the purposes of (…) parody by evoking the original work and by expressing humour or mockery” (Option A), or
- an exception allowing “anyone to use any work for the purposes of (…) creating a parody, caricature or pastiche” (Option B).
In our submission to the consultation (Hungarian, English) we pointed out that Option A, by omitting caricature and parody, fails to properly implement the DSM directive and that therefore the Hungarian legislator should go with Option B. Option B, in line with our longstanding position on exceptions and limitations in the EU copyright framework, recommends to closely follow the language of the exception contained in Article 5(3)(k) of the Information Society Directive. By taking over the wording of the prototype exception and leaving the interpretation of the concepts of parody, caricature and pastiche to the courts, Option B takes full advantage of the policy space that is available to Member States and enables the harmonization of these concepts across the EU. This is especially important since in the context of Article 17, the concept of pastiche will likely become an important safeguard for the freedom of expression. Continue reading
A few weeks ago the European Commission published a study on the ongoing evaluation of the Database Directive. The report was led by the Joint Institute for Innovation Policy, and contains an analysis of last year’s public consultation, as well as information from expert interviews and a stakeholders’ workshop.
The Commission’s evaluation study confirms some of our suspicions that the sui generis right is doing little to increase the production of databases in the EU. The report notes, “the effectiveness of the sui generis right, as a means to stimulate investment on databases, remains unproven and still highly contested” (p. ii). Perhaps not surprisingly, the report shows a split between the views of database producers and users. Whereas users argue that the confusion and overall ineffectiveness of the sui generis right means it should be repealed, some database makers take the opposite view, claiming that the sui generis right “is an effective means to protect databases which is often used alongside other means of protection, such as contractual terms, copyright and technological measures” (p. ii).
The evaluation of the Database Directive
To recap the issue, the study is about Directive 96/9/EC on the legal protection of databases (Database Directive). The Directive came into force on 27 March 1996. It attempted to harmonise the copyright rules that applied to original databases, and also created a new sui generis right to protect non-original databases on which major investments have been made by database makers.
Last year the Commission launched a public consultation on the application and impact of the Database Directive. Communia responded to the consultation, and published a policy paper with recommendations for the future of the Database Directive. We argued that even though the Directive has successfully harmonised the legal protection of databases with regard to copyright, there is no clear evidence that the sui generis right has improved the interests of businesses or improved EU competitiveness by increasing the production of databases. And the introduction of the sui generis right has increased the complexity and confusion for database producers as well as users.
Our recommendations included the following:
- repeal the sui generis database right;
- harmonize the limitations and exceptions provided in the Database Directive with the Infosoc Directive and make them mandatory;
- if it is not possible to fully revoke the sui generis right, the Commission should amend the Database Directive to introduce a system whereby producers of databases must register to receive protection under the sui generis right; and
- set a maximum term so that there cannot be perpetual extensions of database protection.
This week MEP Julia Reda shared an unpublished report of a study examining the effects of copyright infringement on sales of creative works. Apparently the contract for the economic research was tendered by the Commission in 2014 for €360,000. It was completed in 2015 but never published, and Reda received a copy of the report after several freedom of information requests.
The background of the study hinges on the assumption that “illicit use of copyrighted material reduces revenues of rights-holders and thus their incentives to produce content.” (p. 19). As our friends at EDRi are pointing out, this assumption is one of the underlying motivations for the Commission’s deeply flawed crusade against open online platforms. So what does the research show? From the report (our emphasis):
In 2014, on average 51 per cent of the adults and 72 per cent of the minors in the EU have illegally downloaded or streamed any form of creative content […] In general, the results do not show robust statistical evidence of displacement of sales by online copyright infringements.” (p. 7)
This result is not shocking. Many online content providers are finding that users will pay for content when that content can be conveniently accessed at a fair price—hence the significant growth of popular online film and television streaming services like Netflix. But this is not the narrative that the Commission wishes to promulgate, as it doesn’t fit their worldview. Or more accurately, it doesn’t align with the interests of the incumbent content industries, who, as we’ve argued, want nothing more than “to minimize the impact of the fundamental changes brought about by digital technologies and the internet on legacy business models.”
One assumes that the findings from this study would have been a useful input into the Commission’s proposal for the Directive on Copyright in the Digital Single Market. And surely it would have been interesting to creative sector economists, the startup and technology communities, consumer rights organisations, civil society advocates, and the public at large. Instead, the Commission pushed ahead and introduced restrictive copyright reforms that blindly tries to stop something, which according to research commissioned by the Commission itself is not a problem.
This incident makes a few things crystal clear: 1) the Commission has confirmed it has no interest in pursuing evidence-based policymaking, and 2) freedom of information laws are an increasingly vital tool by which to shed light on the shady workings of some public institutions.
The European Commission has launched a public consultation on the application and impact of the Database Directive on legal protection of databases. The Directive offers copyright protection for original databases and creates a new right called the sui generis right to protect databases on which major investments have been made. In the light of this consultation Communia has published its view on the Database Directive in its 12th policy paper. You can read the entire policy paper here.
The Directive aimed to remove existing differences in the legal protection of databases by harmonising the rules that applied to copyright protection. In addition it wanted to safeguard interests of businesses and users alike, namely the investment of database makers, and ensure that the legitimate interests of users of information contained in databases were secured. Continue reading
The European Commission’s public consultation on a neighbouring right for publishers and on the freedom of panorama closed on Wednesday. While the Commission has yet to publish the results of the consultation, Copyright 4 Creativity and Save the Link – who have both been providing tools that encouraged internet users to respond to the consultation – have published data on the responses that they have forwarded to the Commission.
The 2819 responses collected by Copyright 4 Creativity show a very clear picture. According to C4C, 96% of the respondents indicated that the introduction of new rights for publishers (either in the form of an ancillary copyright for press publishers or of a generic neighbouring right for all publishers) would have a strong negative impact on publishers, authors and other rightsholders, educators, researchers, online service providers and end users. This is a pretty resounding NO! to the misguided notion that the problems of the publishing sector can be solved by creating rights out of thin air.
Open Media, the organisation behind the Save the Link campaign, gathered more than 35.000 signatories (including 9937 from the EU) supporting the following statement:
a new ‘neighbouring right’ limited to [press] publishers and the creation of a new neighbouring right covering publishers in all sectors, will each have a strong negative impact on consumers, end-users, and EU citizens.
Now both C4C and Save the Link have both targeted internet users who are critical of an expansion of copyrights. It is therefore not really surprising that that these number show strong opposition to the introduction of new rights that provide publishers and other rights holders with more control over the internet. However, it is relatively hard to imagine that the other responses that the commission has received will change the overall picture of strong opposition to the idea of a neighbouring right for publishers.Continue reading
The current European Commission public consultation is about ancillary copyright as well as the ‘panorama exception’. We encourage you all to show support for a strong, mandatory freedom of panorama exception in Europe and to say “no” to ancillary copyright. COMMUNIA has already submitted their feedback, and you can let your voice be heard as well. Responses to the Commission’s survey must be received by June 15, and you can check out how to answer the questions with the guide at http://youcan.fixcopyright.eu/.
Why are these issues important for you?
As we’ve written before, ancillary copyright is good for no one. Everyday Internet users and consumers of news and articles would then have a harder time finding the news and information they were looking for, and would potentially face more constraints in quoting, linking to, aggregating, or otherwise using works protected by a new ancillary right for press publishers.
Even more worrying is adopting additional rights on top of a copyright system that is fundamentally broken. This is neither contributing to the Commission’s objective of modernizing the EU copyright framework nor adapting it to the challenges of a fast-evolving digital environment. Creating new rights (which are next to impossible to retract) is not a suitable method for managing the relationship between different market segments and the public. The ancillary copyright will cause substantial collateral damage to education and access to knowledge. Continue reading
The European Commission’s public consultation on the role of publishers in the copyright value chain and on the ‘panorama exception’ wraps up on 15 June. COMMUNIA has submitted its response (PDF) to the questionnaire. Our answers reflect the role of COMMUNIA as a non-profit organisation that defends the public domain and advocates a copyright system that benefits users, creators, educators, researchers and cultural heritage institutions. Below we provide a summary of our responses to both parts of the consultation.
Ancillary copyright for publishers
It will come as no surprise that we oppose the creation of a new neighbouring right for publishers. Doing so would have a strong negative impact on all the audiences identified in the questionnaire, including publishers, authors, journalists, researchers, online service providers, and users.
For the majority of publishers, it would establish an unnecessary (and often unwanted) additional right that they would have to deal with, and could even make it harder for them to grow and develop innovative business models. And perhaps more to the point, the experiments with ancillary rights for press publishers in both Spain and Germany did not result in increased revenues. Instead, it likely decreased the visibility (and by extension, revenues) of their content—exactly the opposite of what was intended.
Yesterday the European Commission unveiled five more elements of its Digital Single Market Strategy. These consist of new e-commerce rules (including a legislative proposal to address unjustified geoblocking), updates to the EU audiovisual rules and ‘a targeted approach to online platforms‘. From the copyright perspective the geoblocking proposal and the communication on online platforms are most interesting.
Geoblocking for online content is now officially justified
While it is not a surprise it is still disappointing that the Commission has given in to pressure from rightsholders and now considers geo-blocking of online content ‘justified’. At least that is the message it is sending out with the legislative proposal that applies to all electronically supplied services except ‘services the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter‘. It takes a lot of guts to sell such a proposal as an element of a digital single market strategy as it effectively reinforces the territoriality of the digital market place for content in the EU.
This failure of the Commission to deliver on the core of its promise to create a digital single market has caused Julia Reda to launch a new campaign website that aims to stop all forms of geoblocking once and for all (we encourage you to go there and register your disappointment with the path the Commission has taken). Geoblocking of content is one of the most irritating barriers when it comes to access culture online and seriously undermines the legitimacy of the copyright system as a whole.
Intermediary liability regime remains unchanged
The most interesting part of yesterday’s announcements concern the Commission’s plans for regulating online platforms. With regards to that the Commission published both its communication on Online Platforms and the Digital Single Market and its analysis of the earlier consultation on on that matter. In the past we had expressed concerns that the Commission might consider changes to the intermediary liability regime established by the e-commerce directive which could have far reaching negative consequences. Continue reading
The Commission’s public consultation on the role of publishers in the copyright value chain and on the ‘panorama exception’ is addressed at a broad range of stakeholders, which includes both ‘Libraries/Cultural heritage institutions’ and ‘Educational or research institutions’. In this second post of our series on the consultation, we highlight what the introduction of an additional right for publishers would mean for the education and cultural heritage sectors. We encourage organisations and professionals from these sectors to make their views known to the Commission. [If you have not read our introductory post that deals with the more general problems of granting additional rights to publishers you may want to read that first.]
What additional rights for publishers mean for cultural heritage institutions…
Cultural Heritage Institutions struggle with making their collections available online. While large parts of their collections are not commercially available anymore, or were never in commercial circulation to begin with, most materials from the 20th and 21st century are still covered by copyright and neighbouring rights. In order to make their collections available online institutions have to obtain permission from rightsholders to do so (they need to ‘clear the rights’). For out of commerce works this is an extremely time consuming and expensive process. Most institutions cannot afford large scale rights clearance and as a result there are very few works from the 20th century available via the websites of cultural heritage institutions (‘the 20th century black hole‘). Continue reading
The Commission is currently holding a public consultation on the role of publishers in the copyright value chain and on the ‘panorama exception’. Today we’re kicking off a short series of blog posts that will highlight the problematic nature of granting new copyrights for publishers, and why full freedom of panorama should be ensured for everyone in the EU. This post explores why new copyrights for publishers are a bad idea.
A brief history of ancillary copyright in Europe
For a long time, COMMUNIA has been critical of attempts to introduce additional rights for (press) publishers (see here for a collection of previous posts). The adoption of these ancillary rights would permit publishers to monetize the use of small snippets of text by news aggregators, search engines, and possibly others who collect and share links to publishers’ articles (hence the term: link tax). It first showed up in Germany and subsequently found its way into Spanish copyright law. It is well documented that in both cases the introduction of these new rights has failed to achieve the objectives of their proponents.
These failures have not prevented publishers from trying to get such a right created on a European scale. While the idea was not present in the Commission’s Digital Single Market strategy, Commissioner Oettinger made no secret of his sympathy for the idea, and made it clear that it could surface at any moment. Continue reading