A final x-ray of Article 13: legislative wishful thinking that will hurt user rights

Article 13 final flowchart
Impossible obligations create legal uncertainty
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Since last year we have tracked the development of Article 13 of the proposed Directive on Copyright in the Digital Single Market by publishing a series of flowcharts that illustrates its internal logic (or absence thereof). Now that there is a final compromise version of the directive we have taken another look at the inner workings of the article. The final version of Article 13 continues to be so problematic that as long as it remains part of the overall package, the directive as a whole will do more harm than good. This is recognised by an increasing number of MEPs who are pledging that they will vote against Article 13 at the final plenary vote.

The flowchart below illustrates the main operative elements of Article 13. These include the definition of the affected services, the types of services that are explicitly excluded from its scope (the green box in the top right corner) and the reversal of the liability rules for the services covered by Article 13. It further details the obligations imposed on the services. These include an obligation to seek licenses for all copyrighted works uploaded by users (the yellow box) and the requirements to ensure the unavailability of certain works that will force platforms to implement upload filters (the two red boxes). The yellow box at the bottom contains the measures that platforms must take to ensure that the upload filters don’t negatively affect users’ rights.

Article 13 final flowchart

The Scope: Broad yet vague

The problems with Article 13 start with the definition of the services it applies to. While Article 13 is intended to address concerns about value distribution raised by a limited set of industries (primarily the music industry) it applies to all types of copyright protected works. But there is no good reason why an article that is intended to bolster that bargaining power of the music industry should impose expensive obligations on platforms that have nothing to do with hosting musical works. In addition, the limitation to platforms that deal with “large amounts” of works is so vague that it does not provide any legal certainty for smaller platforms and will undoubtedly give raise to court challenges. On the positive side the definition clearly limits the scope to for-profit services. Continue reading →

The education exception was gutted during the Trilogues

A dragon devouring the companions of Cadmus
Article 4: attacked through the recitals
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When the European Commission proposed to grant the same minimum rights for digital educational activities in every EU Member State, we applauded the initiative. The proposal had flaws, but there was room for public discussion at the European Parliament, which could have led to an improvement of the proposal. Unfortunately, the improvements introduced by the Parliament were gutted during the trilogue debates, which were conducted behind closed doors.

Let’s recall the improvements introduced by the Parliament: (i) on the issue of licensing, where the EC proposed to allow the exception to be switched off if unilateral licensing offers were made available to schools, the EP suggested to give priority only to bilateral licensing agreements that the schools had agreed on; (ii) on the issue of beneficiaries, where the EC proposed to cover only the activities run by formal educational establishments, the EP suggested to include museums and other cultural heritage institutions as beneficiaries of the exception; (iii) on the issue of contractual overrides, where the EC had done nothing to protect the exception against contracts, the EP proposed to prevent contractual overrides of the education exception, and (iv) on the issue of technologies, where the EC proposed to make the exception function only on the school’s closed networks, the EP attempted to cover more means of communication by replacing the word “networks” with “environments”.

Unfortunately, the European Council did not engage in the same type of public discussions with regard to new European law proposals and, maybe because of that, it’s version of Article 4 did not include similar improvements. What is worse: it made the prospects of having an improved and harmonized landscape for educational activities in Europe even less likely.

For several months, the Commission, the Council and the Parliament discussed, behind closed doors, the fate of the new Directive, and as far as we are aware there was little interest in discussing the education exception because there were other pressing issues that required their attention. As a result, the positive amendments contained in the Parliament version were not retained in the Trilogues.

Below, we explain three negative changes made to the text of the educational exception in this final phase of the legislative process. Changes made without public consultation, transparency or due review of evidence. These include denying teachers the right to benefit from the exception when there are licenses available in the market for them to buy; excluding the educational programs run by museums and libraries from the scope of the exception; and allowing Member States to fragment the exception, by defining different proportions to which a work can be used.Continue reading →

A “compromise” that fails to deliver – our overall assessment of the directive remains negative

Overall DSM directive assessment: bad for the peopleLicentie
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On Wednesday the Council formally approved the trilogue compromise text of the DSM directive with only 5 Member States voting against the compromise. In a joint statement the Netherlands, Luxembourg, Finland, Italy and Poland sharply criticised the compromise:

We believe that the Directive in its current form is a step back for the Digital Single Market rather than a step forward.

Most notably we regret that the Directive does not strike the right balance between the protection of right holders and the interests of EU citizens and companies. It therefore risks to hinder innovation rather than promote it and to have a negative impact the competitiveness of the European Digital Single Market.

Furthermore, we feel that the Directive lacks legal clarity, will lead to legal uncertainty for many stakeholders concerned and may encroach upon EU citizens’ rights.

These criticisms are very much in line with our own assessment of the directive and it is unfortunate that the rest of the Member States have chosen to ignore them. After this week’s approval by the Member States it is now up to the European Parliament to prevent the directive (or its most harmful element, Article 13) from being passed into law. There is no date for the final plenary vote yet, but the final showdown is widely expected to take place anytime between mid-March and mid-April.

Internet is should be for the people

In the light of this we have now updated our overall analysis of the directive (which we had first published in January) to reflect the final compromise text. The final trilogue negotiations have resulted in changes to the text related to the Text and Data mining exception, the publishers right, the fair remuneration right and — most notably — Article 13. By and large the changes to the text have been minor and in line with our expectations, and as a result our overall assessment of the directive as a whole remains negative. The finals text will do a lot of harm to internet users and needs to be blocked from becoming law. Continue reading →

After 30 months, EU legislators agree to sell out users and creators to big platforms and big content.

Caïn venant de tuer son frère Abel, by Henry Vidal
European users and creators deserve better
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After yesterday’s agreement between the European Parliament, the Council and the European Commission on a compromise text, the EU copyright reform process has entered into its final phase. The good news is that after yesterday’s compromise the text cannot get any worse: it will either be adopted or it will be rejected. The bad news is that the text that was agreed on yesterday is **the worst version that we have seen yet**. After three days of negotiations, the negotiators have agreed on a text that would benefit big corporate rightsholders, Google and other dominant platforms at the expense of users, creators and the rest of the European internet economy.

To understand what has happened during the negotiations, it is illustrative to look at the differences between the final compromise and the text that had been agreed among the EU member states last week (which was the result of horse trading between the French and German governments).

A win for dominant platforms…

Yesterday’s compromise text is largely in line with the French-German deal. This includes a terrible version of Article 13 that will severely limit users ability to express themselves online. It will also further consolidate the power of dominant platforms, as smaller platforms will struggle with implementing expensive filtering technology and supporting the increased costs for dealing with increased liability.

It also introduces a EU-wide neighbouring right for press publishers that will have very similar effects. It benefits dominant platforms who can afford compliance while creating additional costs and risks for smaller players. As a result, users will likely end up with less access to information and the diversity of information available online will likely suffer. Under these conditions it remains to be seen if rightsholders will indeed manage to extract more value from the large intermediaries.    

…at the expense of users and creators

As if this would not be bad enough, the negotiators have introduced last minute changes to the text that further weaken provisions that were intended to protect the rights of users and individual creators. The French/German deal did not (at least not clearly) include a UGC exception for users of every online platform, but it used language that at least applied to  user-generated content uploaded to the platforms covered by Article 13. The final compromise has adopted questionable language that may or may not  provide a meaningful protection for users of platforms covered by Article 13, depending on whether Member States are obliged to fully implement the existing quotation and parody exceptions provided in the InfoSoc Directive, and make them applicable to user-generated content, which is not evident from the text. Continue reading →

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

Article 13 flowchart (detail)
Article 13: death by filters
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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
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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!
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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 →

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

Internet is for the peopleLicentie
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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
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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
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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 →