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

Closeup of Art 13 flowchart
Art.13 in 3 flowcharts
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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

Education: the 5 Most Unfair Licence Conditions

A woman shouting into a man's ear-trumpet. Wood engraving.
Last call to avoid falling into a black hole!
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We recently released our new report “Educational Licences in Europe”, where we analyzed 10 collective agreements in Finland, France, and the United Kingdom. This study shows that educational licences for using copyrighted content in schools include many terms and conditions that restrict users’ rights and that are unfair or unreasonable.

While the small number of agreements analyzed in the study does not allow us to make any safe conclusions with respect to the different licensing schemes, we could not avoid noticing that (some of) the most unfair terms identified in this study are contained in the British licences. And that is interesting to highlight because licences prevail over the teaching exception only in two EU countries: United Kingdom and Ireland (source: IA on the modernization of copyright rules). 

One possible explanation for this apparent correlation is that the UK legal framework prevents licensees from refusing licences that contain terms and conditions that will act against their best interests. Educational establishments, or governmental institutions acting on their behalf, are “forced” to accept any licence that is easily available in the market, if they want to continue making the uses that were protected by such exceptions, and that become suddenly covered by the licences. In this context, right holders are “free” to almost unilaterally reshape the terms and conditions of educational uses made under their licences.

If this is not enough to cause concern among lawmakers, here are the 5 most questionable terms and conditions identified in the agreements analyzed in our study:

1. Licensor can inspect materials, secured networks and storage platforms used by schools, without being required to keep the information obtained confidential

Does not prevent licensors from disclosing and making commercial uses of sensitive information, such as data related with the performance of students

2. Licensor can enter a school’s premises at any time, provided it gives reasonable notice, to ensure compliance with the licence and inspect procedures

It can disrupt the normal operation of schools

3. Schools have to take reasonable steps to ensure that licences are not infringed by teachers, students and third parties

It creates an excessive burden on schools that have to start policing teachers, students, parents and third parties

4. School must own, or subscribe to, a copy of the materials it copies, scans or uses under the licences

Does not allow uses of materials owned by teachers and students or borrowed from a library or legally obtained

5. Digital copies may not contain hypertext links (or the like) to any external or third-party website

It prevents teachers and students from comparing, verifying and updating information and knowledge

Solutions

To avoid spreading these licensing conditions across Europe, lawmakers should consider adopting the following measures:

  1. Prevent license priority, or provide only for limited priority to those contractual arrangements that are mutually agreed by the parties.
  2. Render contractual provisions that restrict the scope of protection afforded by a copyright exception or limitation unenforceable.
  3. Give schools access to affordable mediation and litigation, to challenge with ease the terms of a licence that are thought to be unfair or unreasonable.
  4. Assess the need to submit educational licences to public regulation.

 


Council: Member States close to adopting a copyright maximalist position

Twee tijgers sluipend door het gras
Danger looming in the Council
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It is still unclear if the Bulgarian Council presidency will manage to get the member states in line to agree on a general negotiation position at the COREPER meeting scheduled for this Thursday. Under pressure from the Bulgarian presidency (or rather those who put pressure on them), the member states seem to be moving towards a common position. Last week’s working group meeting appears to have resolved most of the controversies around Article 3a (optional text and data mining exception) and Article 11 (press publishers rights). Article 13 remains the main sticking point, preventing the member states from agreeing on a negotiation mandate.

So what’s the status with regards to these 3 articles and where do the member states stand on them?

Article 13: Continued divisions over the scope of #censorshipfilters

In spite of the significant doubts that many member states expressed last year regarding measures targeting open online platforms contained in Article 13, the article has survived the subsequent rounds of discussions in the Council nearly intact. This seems mainly due to a pivot by the German government which is now backing censorship filters – even though the coalition agreement that underpins the current government is highly critical of such measures.

While there is agreement in principle, the Member States are still spit on the scope of the article. The maximalist axis of France, Spain, Portugal and Italy is backing a broad implementation of the article, while most other member states (including Germany) seem to be favouring a narrowing down of the scope of the services that would be required to filter. Lack of consensus on the scope of Article 13 seems to be the main obstacle that prevents the Bulgarian presidency from closing the file.

Article 11 map (April 2018)
Member States (in red) supporting the introduction of censorship filters for online platforms (own research)

As we have argued before, rushing Article 13 across the finish line carries substantial risks to the European internet economy and to our freedom of creative expression. Continue reading

Now even the rightsholders agree: Article 13 is dangerous and (and should be deleted)

Aanval van de Giganten op de godenwereld
Article 13 will hurt both users and creators
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Now that the Bulgarian Council presidency seems to have decided that it is time to wrap up the discussions on the DSM proposal and push for a political decision on a negotiation mandate, people are getting nervous. Late last week a whole assortment of organisations representing rights holders from the AV industry (organised in the creativity works! coalition) have sent a letter to Member State ministers and representatives, outlining their concerns with the latest Bulgarian compromise text. The document mainly focuses on Article 13, and what they have to say about that article is rather interesting (and surprisingly in line with positions that we have been arguing all along).

The overriding concern expressed by the rightsholders in their letter is that some of the more recent changes introduced in the council would turn Article 13 from a magic weapon against a few online platforms into a mechanism that threatens to further empower these very platforms in a way that does not benefit rights holders. In response to this, Creativity Works! (CW!) argues for further strengthening some of the most problematic aspects of Article 13.

We have long argued that Article 13 seems to be designed to benefit the big dominant online platforms, as it will entrench their market position. For smaller companies compliance with the filtering obligations will be difficult and costly while the main targets of Article 13 already have filtering systems in place (such as YouTube’s Content ID), and it is a welcome sign to see rights holders waking up to this reality.

For us it has been clear from the start that Article 13 will not achieve its stated goals. Instead the filtering obligations will cause tremendous harm to the freedom of expression and to open platforms that operate in fields that have nothing to do with the distribution of entertainment products. For this reason we think that the only responsible way to deal with Article 13 is to delete it and start over with a discussion about how we can best ensure that creators can be fairly compensated for their work. (Note that in this discussion most of the members of CW! are likely to be part of the problem rather than the solution as CW! has very little representation from actual creators.)

And while CW! is not joining us in our call to delete Article 13, their letter does illustrate our argument that adjusting general concepts of copyright law in order to address the concerns of specific groups of stakeholders is utterly irresponsible in the light of the big (and often unintended) consequences such an intervention can have.

Case in point: the re-definition of right of communication to the public. We and others critical of Article 13 have long argued that Article 13 would expand the right of communication to the public. Within the Commission’s proposal this aspect of Article 13 was hidden away in a recital, but over the successive drafts it has become more explicit. This seems to have led to the sudden realisation by rights holders that such a re-definition of this important right can also negatively affect them. In their letter they wrote on the last Bulgarian compromise proposal:

It would limit the scope of the right of communication to the public by incompletely applying Court of Justice of the European Union (CJEU) case law and setting into stone in Article 13 only certain criteria developed by the Court. This approach would roll-back the CJEU’s case law, which has repeatedly confirmed that a broad interpretation of the right of communication to the public (CTTP) is necessary to achieve the main objective of the Copyright Directive, which is to establish a high level of protection for authors and rights holders. CW! recalls that the exclusive right of communication to the public, including the making available right, as enshrined in EU law (and further clarified by the Court), has emerged as the bedrock for the financing, licencing and protection of content, as well as its ultimate delivery to consumers in the online environment. The Court has also emphasised, in its recent judgments, that in order to determine whether there has been a CTTP, several complementary criteria must be taken into account, which are not autonomous, but are interdependent. Any proposals that entail a selective application of the Court’s jurisprudence, or that imply a narrowing of the scope of the right of CTTP, would be contrary to the protection required by current EU and international law.

While we do not agree that the current draft would limit the scope of the CTTP right, this passage illustrates the dangers of carelessly fiddling around with core legal concepts that underpin the EU copyright framework. Continue reading

Proposed Council compromise on TDM: still not good enough

De zanderij
The right to read must be the right to mine!
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We’ve already written about how the Bulgarian compromise proposal for both Article 13 and Article 11 are too broken to fix. Their proposal for Article 3 (Text and Data Mining) does little to alter the major problems standing in the way of a progressive exception for text and data mining.

We’ve continued to follow Article 3 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.

TDM in the Bulgarian presidency proposal

The Bulgarian proposal is nearly identical to the changes already offered by the earlier Estonian plan. It leaves intact the Commission’s obligatory TDM exception that would apply to research organisations (including cultural heritage institutions) for purposes of scientific research. The Bulgarian proposal similarly introduces an additional and optional exception in Article 3 for temporary reproductions and extractions. 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.

In our earlier blog post we wondered whether the existing (and mandatory) exception in the InfoSoc and Database Directives on temporary reproductions arguably already covers the temporary reproductions for text and data mining purposes. In any case, this additional and merely optional exception, for acts that might already be covered under existing law, which can easily be neutralised if rights holders don’t want it, is a weak compromise. It doesn’t address the main concerns we’ve had with Article 3 since the beginning. It also fails to bring much needed harmonization and will instead further the already existing fragmentation of users rights in EU. Continue reading

MEP Voss doubles down on worst elements of Article 11

Karikatuur van Franse censoren
New right threatens free access to information
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We just got done criticising how Bulgaria’s weak consolidated presidency compromise handles Article 11 of the proposed Copyright in the Digital Single Market (DSM) directive. The Bulgarian plan doubles down on the Commission’s original bad idea and ignores most of the positive protections offered by some members of parliament.

But we shouldn’t have been surprised when MEP Axel Voss came out with an even worse plan for the press publishers right. This week MEP Voss released his proposal for a compromise on Article 11, and the changes he is proposing are even more radical and more broken than anything we’ve seen thus far.

Expanding the scope to cover facts

First, Voss proposes to expand the scope of beneficiaries of Article 11 from to cover not only press publishers, but also news agencies (who aggressively lobbied for being included in the scope of Article 11 late last year). But in doing so, he introduces the risk of inappropriately granting copyright – like protection to facts and compilations of basic information. This is a dangerous extension of the scope of exclusive rights that would endanger the right of access to information. It is especially appalling since even the founders of the “modern” European copyright system wisely choose to make sure that news of the day and facts cannot be exclusively claimed: The 1986 Berne convention explicitly states that copyright shall “not apply to news of the day or to miscellaneous facts having the character of mere items of press information”.

Mandatory remuneration

Perhaps the most extreme change is that press publishers and news agencies would be granted (or saddled with?) an “inalienable right to obtain an fair and proportionate remuneration for such uses.” What does this mean? It means that publishers would be required to demand payment from news aggregators and other users. Continue reading

This is not how you make copyright reform! Report from the Copyright Action Days

Last week more than a hundred of copyright reform activists got together in Brussels for the the European Copyright Action Days to make it clear to EU lawmakers that the copyright reform effort that is currently being discussed in the European Parliament and the European Council is not good enough. In a series of events organized by Copyright 4 Creativity, Create.Refresh, Communia and others, activists and other stakeholders discussed the shortcomings of the current reform proposal as well as ideas for a more future-proof overhaul of the outdated EU copyright system.

As part of the Copyright Action Days we organized a a roundtable on the future of education in the European Parliament, our first ever COMMUNIA Salon on the future of copyright in the Museum of Natural Sciences and two workshops for copyright reform activists.

Video documentation by Sebastiaan ter Burg.

Roundtable on the future of education

The roundtable on the the future of education hosted by Dutch MEP Marietje Schaake was a full room event at the European Parliament, with over 40 policymakers and stakeholders attending. We discussed the intersection of educational policy, technology, copyright reform and open licensing policies. Irish school teacher Leanne Lynch talked about the use of technology, social media platforms and digital copyrighted materials in the classroom. Mitja Jermol – UNESCO Chair on Open Technologies for Open Educational Resources and Open Education – talked about how new technologies can support educational goals. Andreia Inamorato dos Santos from EC’s Institute for Prospective Technology Studies  presented results of their latest report on open education policies in Europe. Finally, Damjan Harisch from the Slovenian Ministry of Education and Maja Bogataj Jančič, Director of the Slovenian Intellectual Property Institute, presented the position of Slovenian Ministry of Education on the copyright reform  During the event, Teresa Nobre also presented our latest research on licences for educational uses. We are happy that we had the opportunity to exchange views on the matter with representatives of publishers and CMOs.

The Future of Technology in Education roundtable
The Future of Technology in Education roundtable, photo by Sebastiaan ter Burg. More photos here.

COMMUNIA salon

The COMMUNIA salon in the Museum of Natural Sciences brought together more than 70 activists, academics and policy makers to discuss challenges on the intersection of creativity, value creation and copyright in the online environment. Under the title “Copyright for the future” the discussions attempted to draw up a perspective that looks beyond the current legislative proposal. Continue reading

Article 13: still too broken to fix

Aanval van de Giganten op de godenwereld
Article 13 is an attack on open online platforms
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As we are heading into the final phases of the discussion on article 13 in both the European Parliament and the Council the issue that article 13 has the potential to do substantial damage to the European digital economy is getting more attention from lawmakers. So far the answer to this problem by the proponents of Article 13 is to exempt more and more types of online platforms from the filtering and or licensing requirements established by Article 13. By now the list of services to be excluded contains “Non-for profit online encyclopaedia“, “educational or scientific repositories, where the content is uploaded by the rightholder“, “providers of cloud services for individual use which do not provide access to the public“, “online market places whose main activity is online retail of physical goods” (European Parliament draft), “non-for-profit open source software developing platforms” and “internet access service providers” (Council compromise proposal).

Generally speaking it is a good indication that a policy is bad if there is a need to make a large number of exceptions to prevent it from doing lots of unintended harm. This principle is on full display in the discussion about article 13. As we (and many others) have argued before, article 13 is broken so badly that it cannot be fixed and should be deleted. The key problem with article 13 is that the music industry is employing its old weapon of choice (copyright law) in an attempt to reign in behaviour of a very small group of online platforms that is perceived as problematic by the music industry. By using copyright law as a trigger for the licensing and filtering obligations contained in article 13, the article inevitably effects every other online platform that deals with copyrighted contents (i.e pretty much all online platforms).

It is not surprising that other platforms that operate in completely different markets (like GitHub which has nothing to do with uploading music) have started to realise that article 13 is a threat to their businesses and are demanding to be excluded from the scope of article 13. While excluding such platforms seems like an obvious choice to prevent some of the worst side effects of the provisions contained in article 13, it will not fix the underlying problem: In an age where copyright touches almost every online business model, copyright law is not a suitable regulatory instrument to adjust the bargaining positions of specific industries anymore. In order to make sure that article 13 has no negative side effects it would need to come with a list of exceptions that excludes every single business model that it is not targeted at. Continue reading

Join us for the European Copyright Action Days 19-21 march in Brussels

Banquet at the Crossbowmen’s Guild in Celebration of the Treaty of Münster
Join us in Brussels to #fixcopyright
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This spring the ongoing effort to modernize the outdated copyright rules enters into the decisive fase. It is widely expected that both the European Parliament and the EU Member states will their position on the proposed Copyright in the Digital Single Market Directive. Right now things are not looking good: instead of a much needed update of the copyright framework that would enable new uses driven by technological innovation, policy makers in Brussels are working towards new restrictions that would would limit how information and creativity can be shared and enjoyed online.

Against this backdrop we are organising European Copyright Action Days on 19-21 march in Brussels. During these days we want to highlight the broad opposition of civil society, libraries, the users industry and many others concerning the restrictive aspects of the copyright reform proposal. During these days activists will convene in Brussels to discuss with lawmakers and advocate for a more future proof reform and to raise attention for the dangers of the proposed measures. Continue reading

Is the Bulgarian Article 13 Compromise a French affair?

Kaart van de Balkan
Bulgaria should oppose censorship filters!
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The Bulgarian EU Presidency is under immense pressure to move the copyright reform forward. Yet it seems like the country is too timid to defend its own interests. A new campaign kicked off in Sofia to try and change that.

Somewhere far out in the uncharted backwaters of the unfashionable end of the EU lies a small unregarded country—Bulgaria. In 2018 this Member State will not only be known for resonant voices and rampant corruption, but also for its prominent role in the EU copyright reform. While it holds the rotating Presidency of the Council of the EU it is up to the Bulgarian government to propose new compromises and bring the discussion forward in order to reach a common position between Member States.

But the Council is not Bulgaria’s only copyright stronghold at the moment. The reform falls in the competences of the country’s Commissioner Mariya Gabriel, and 10% of the votes in the lead European Parliament committee (Legal Affairs) are to be cast by MEPs from parties currently making up its governing coalition.

The Bulgarian Compromise, a French Affair?

At the end of 2017 the Council negotiations hit somewhat of a stalemate and the Estonian Presidency was forced to give up, unnerved after trying for months to square the circle between the content industry’s bold demands and fundamental rights for users and the public.

Apparently the Bulgarian Presidency decided to kick 2018 off with a fresh approach. They circulated questions on the most controversial articles of the reform among Member States and then seemed to be proposing a new compromise.

Weirdly enough, this proposal seems to be very close to the positions of France, Spain, and Portugal than a honest attempt at balancing between the different challenges Europe faces. Continue reading