Multiple news agencies confirm: Press publishers right will be used to limit freedom to link

Karikatuur van Franse censoren
Article 11 is an attack on the freedom to link
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Within the new industry, news agencies fill the role of the objective gathers of facts. Agencies like DPA, AFP or ANP collect information and make them available to publishing companies who sometimes publish the information as is, but mostly use the information that they get from the agencies as an ingredient for their own reporting. Journalists rely on news agencies to confirm the accuracy of information they use in their reporting.

The heads of 8 major European news agencies have now entered the discussion about the ancillary publishers right for press publishers, via an open letter published in Wednesday’s edition of the French daily Le Monde (paywalled french language version here). They have done so taking the side of those press publishers who advocate for this right. The letter is a frontal attack on online platforms (Facebook and Google in particular) whom they accuse of profiting from hyperlinking to online new publications that are based on information gathered by the news agencies:

[The platforms] offer internet users the work done by others, the news media, by freely publishing hypertext links to their stories.

What is remarkable here is that the news agencies’ letter explicitly singles out hyperlinking as the mechanism that should be the target of the ancillary right for press publishers. While we  and others such as the eponymous Save the Link campaign have argued for a long time that an ancillary copyright would threaten the ability to freely link to online resources, and thus break one of the fundamental building blocks of the internet, the press publishers have gone to great length to pretend that this is not the case.

Publishersright.eu, the lobby platform set up by the EU press and news publishers associations contains a “mythbuster” section that proclaims that the publishers right “is not a link tax”, will “not break the internet”, and will not “be used to block access to publishers] content” (the last one stands in direct contruy7 [adiction to this statement by Prof. Höppner—one of the few academic proponents of the right). In the same vein the European Publishers Council is proclaiming (complete with animated GIF) that “the link is safe” and that the publishers right will lead to “more links”.

Unfortunately for these self appointed “mythbusters” the news agencies seem to have missed the memo and made it clear that the right is indeed an attempt to break the freedom to link. While this could be filed away as a simple communication mistake, the news agencies reveal a much deeper truth: It doesn’t really matter what the proponents of a new right claim with regards to how it will be used. Once a new right exists rights holders are incentivised to make maximum use of the new right. The statements from the news agencies and Prof Höppner make it clear that this will include attempts to charge for linking to and blocking access to content.

As we have argued before, strengthening the position of press publishers (and journalists) does not require a new separate right which would likely be abused to impede the access to information and to break the internet. Instead the position of press publishers vis a vis abusive practices could be achieved by a legal presumption that press publishers are entitled to enforce the rights over the works or other subject matter that are licensed to them. This is the approach that was proposed by former MEP Comodini in the draft report of the European Parliament’s legal affairs committee and is one of the two options currently discussed among the member states in the Council.

This week’s intervention by the news agencies is a powerful reminder that handing out new rights is the wrong approach to the problem.

The Estonian Presidency’s new (and optional) TDM exception: small potatoes

Man bekijkt een schilderij door een vergrootglas, Honoré Daumier, 1847
The reform needs major fixes, not minor tweaks
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Ahead of this week’s EU Council meetings of the Working Party on Intellectual Property (Copyright), the Austrian government has helpfully shared the Estonian Presidency’s revised compromise proposal on Articles 3 and 6 (including relevant recitals).

We’ve been following TDM with interest 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.

The Estonian revisions leaves intact the Commission’s obligatory TDM exception that would apply to research organisations for purposes of scientific research. And, as expected, it continues to recommend that the beneficiaries originally contemplated by the Commission be expanded to include cultural heritage institutions. But the most significant change offered in this updated compromise proposal is an additional and optional exception in Article 3:

(5) Member States may provide for an exception or a limitation […] for temporary reproductions and extractions of works and other subject-matter that form an integral part of the process of text and data mining, provided that the works and other subject-matter are accessed lawfully and that the use of the works or other subject-matter for text and data mining is not expressly reserved by the rightholder.

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. Continue reading

UK government report: The right to read should be the right to mine

De zanderij
AI development requires permissive TDM rules
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Last month the British government published an independent report on Growing the artificial intelligence industry in the UK. The review, conducted by Professor Dame Wendy Hall and Jérôme Pesenti, discusses the potential for how artificial intelligence (AI) “can bring major social and economic benefits to the UK,” highlighting that AI could contribute an additional £630bn to the UK economy by 2035.

The report makes several recommendations that could be explored to support the continued development and adoption of AI in the UK, including improving access to data, training experts, and increasing demand for AI applications. Of particular interest to us are two specific recommendations:

“To improve the availability of data for developing AI systems, Government should ensure that public funding for research explicitly ensures publication of underlying data in machine-readable formats with clear rights information, and open wherever possible.

[and]

“To support text and data mining as a standard and essential tool for research, the UK should move towards establishing by default that for published research the right to read is also the right to mine data, where that does not result in products that substitute for the original works. Government should include potential uses of data for AI when assessing how to support for text and data mining.

It is clearly beneficial that governments require that the outputs of publicly funded research and data be made widely available in open technical formats that are consumable by computers. If the data is not made available in machine-readable formats, it will be impossible to efficiently conduct text and data mining across a large corpus of works. It’s also good that the report recommends that the UK push for an environment where “the right to read is the right to mine”—meaning that legal access to the underlying text or data should be sufficient for the user to conduct any further research techniques (such as TDM) and that no additional legal permissions or licenses should be  required in order to do so. Continue reading

The copyright reform proposal is a threat to fundamental rights, the economy, education and creativity!

A woman shouting into a man's ear-trumpet. Wood engraving.
Time to stop the #CensorshipMachine
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It has been well over a year since the European Commission has presented its proposal for adapting the EU copyright rules to the realities of the digital age. The proposed changes (as flawed as they may be) are part of an agenda to make Europe more competitive and to stimulate economic growth.

The proposal continues to be debated in the European parliament with no real end in sight. In this situation we have taken today’s meeting of the EU Competitiveness Council (which brings together the ministers responsible for trade, economy, industry, research and innovation, and space from the 28 EU member states, as an occasion to write yet another open letter.

Given that at this stage pretty much everything that can be said about the dangers and shortcomings of the Commission’s proposal has been said, our letter which has been signed by an unprecedented coalition of more than 80 civil society and human rights organisations limits itself to pointing out this very fact:

We write to you to share our respectful but serious concerns that discussions in the Council and European Commission on the Copyright Directive are on the verge of causing irreparable damage to our fundamental rights and freedoms, our economy and competitiveness, our education and research, our innovation and competition, our creativity and our culture. We refer you to the numerous letters and analyses sent previously from a broad spectrum of European stakeholders and experts for more details (see attached).

Attached to the letter are 29 different opinions, studies, open letters and reports that have been addressed at the EU legislators since the publication of the reform proposal. These include a recommendation co-signed by over 50 respected academics on measures to safeguard fundamental rights and the open Internet in the framework of the EU copyright reform, which points out that:

Article 13 (…) is disproportionate and irreconcilable with the fundamental rights guarantees in the Charter [of Fundamental Rights of the EU]

An open letter from over 50 NGOs representing human rights and media freedom asking the EU legislators to delete Article 13:

Article 13 appears to provoke such legal uncertainty that online services will have no other option than to monitor, filter and block EU citizens’ communications if they are to have any chance of staying in business. Article 13 contradicts existing rules and the case law of the Court of Justice.

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European Parliament Civil Liberties committee is second EP committee to reject mandatory upload filters

Twee apen maken muziek
Article 13 is a threat to creative expression online
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Yesterday, the members of the European Parliament’s Civil Liberties Committee (LIBE) did the right thing and voted down the Commission’s proposal to impose upload filters on online platforms. The LIBE opinion, which was drafted by Polish EPP MEP Michał Boni and adopted with a clear majority of 36 votes for and just 5 against, dismantles the most problematic aspects of Article 13 of the Commission’s proposal: the members of the LIBE committee voted to remove the obligation for online platforms to use automated content recognition technologies to filter all user uploads in order to prevent users of these platforms from sharing copyrighted materials without permission from rights holders. The opinion also proposes strengthening user’s ability to contest the takedown of works they’ve uploaded.

Members of Parliament are recognizing the dangers upload filters pose to freedom of expresion..

While this approach is not perfect (as we have repeatedly said Article 13 should be deleted from the proposed directive), it shows that the members of the European Parliament are not willing to blindly follow the attempts by the music industry and the Commission to give big rightsholders more control over how we create, share and access content online. It is encouraging to see that the members of Parliament have listened to the arguments against automated upload filters, such as the recent warning by more than 50 prominent professors and scholars of copyright and internet law that automated filtering systems “would deprive users of the room for freedom of expression” and the open letter that we co-signed with 50 human rights and civil liberties organisations, which pointed out that content filters would both “limit the freedom to impart information […], and the freedom to receive information on the other.”

LIBE is now the second committee of the European Parliament that is calling for a halt to the automated content filtering plans proposed by the Commission. Back in July the Internal Market and Consumer Protection Committee (IMCO) adopted the same amendments that were adopted yesterday by LIBE. While both committees will be at the table when the leading JURI committee discusses these plans, it is far from certain that the Committee on Legal Affairs will follow the line established by them.

…while Member States continue to push for mandatory censorship filters

Outside of the European Parliament the LIBE vote also sends a strong signal to the Member States who are discussing this issue in parallel. The Estonian presidency has proposed a new compromise text on article 13 that will be discussed among the member states later this week. The language proposed by the Estonian proposal significantly overhauls the Commission’s proposal, but that new coat of paint cannot hide the fact that it still tries to force online platforms to implement automated content filtering technologies. Continue reading

Access to cultural heritage: Geoblocking or a Digital Single Market

The
Geoblocking has no place on the Internet
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This is a slightly edited version of an analysis that was first published by Europeana on the Europeana Pro website

More than a year after the European Commission published its proposal for a Directive on Copyright in the Digital Single Market (DSM directive), the proposal continues to be discussed both in the Council and in the European Parliament. While the discussions in the European Parliament have recently slowed down to a crawl (the vote in the Legal Affairs committee is not expected before January), the discussions between the Member States in the Council are picking up steam: earlier this week, the Estonian Council presidency’s  consolidated compromise proposal was made public.

The compromise proposal contains an entire new chapter (chapter 1a – Measures to facilitate collective licensing’) that contains an a new article (art 9a – ’Collective licensing with an extended effect’). To anyone familiar with the Commission’s proposal (and the critical reception by cultural heritage institutions) this addition will appear somewhat odd as the Commission’s original proposal already relied on ’collective licensing with an extended effect’ as a mechanism that would allow cultural heritage Institutions to make out of commerce works (OOCW) from their collections available online.

So what exactly is going on here? Articles 7-9 of the Commission’s proposal are aimed at enabling the cross border use of out of commerce works. This would allow cultural heritage institutions to make such works from their collections available online so that they can be accessed from everywhere within the EU. While we think that relying on extended collective licensing alone will not be sufficient to achieve this objective for all sectors and all types of work, we are happy with the ambition to solve this problem on an EU wide basis.

A legal basis for Extended Collective Licensing

By contrast, the newly proposed article 9a focusses on (existing) national extended collective licensing arrangements and would not have any cross border effects. Instead, it introduces provisions into the EU legal framework that would remove the legal uncertainty that currently surrounds the extended collective licensing arrangements that exist in a number of (mainly nordic) EU Member States:

A functioning copyright framework that works for all parties requires the availability of proportionate, legal mechanisms for the licensing of works. Systems such as extended collective licensing or presumptions of representation are a well-established practice in several Member States and can provide such solutions, […] Given the increasing importance of the ability to offer flexible licensing solutions in the digital age, and the increasing use of such schemes in Member States, it is beneficial to further clarify in Union law the status of licensing mechanisms allowing collective management organisations to conclude licences, on a voluntary basis, irrespective of whether all rightholders have authorised the organisation to do so (Recital 28a + 29c of the Estonian Compromise proposal)

Continue reading

Bending over backwards – ALDE wants to ensure online is like the offline

Vergaan van het schip de Vrijheid
Protect online freedom     of expression
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Despite ambitious planning, the JURI Committee vote on the Copyright in the Digital Market directive seems increasingly unlikely to happen in 2017. Meanwhile, following the lead of the EPP, ALDE (The Alliance of Liberals and Democrats for Europe) published a new position paper on Copyright in the Digital Single Market earlier this month. ALDE seems to be deeply split when it comes to the question of copyright policy. Perhaps this is why the paper offers a very blurred perspective on how the group’s MEPs will vote in the upcoming votes in the Civil Liberties (LIBE) and Legal Affairs (JURI) committees in the European Parliament.

A blurred compromise to keep everyone happy

While many liberal MEPs are traditionally supportive of less restrictive copyright rules and value the protection of individual freedoms, ALDE’s official spokesperson for the copyright file, MEP Cavada is one of the most outspoken proponents of stronger copyright protection in the European Parliament.

Positions of the political groups in JURI with respect to selected elements of the DSM directive proposal [Source].

The new position paper seems to be an attempt to bridge both positions. Following a somewhat rambling introduction that extensively highlights the need to fight online piracy (which technically is not included in the scope of the DSM directive), the position paper states that attempts to protect copyright online should not infringe users’, consumers’ and citizens’ rights:

ALDE wants to protect copyright online because we need to ensure that creators are fairly remunerated for their creations. In taking measures to ensure this, however, ALDE is not ready to go as far as to infringe users’, consumers’ and citizens’ rights to exercise their freedom of expression online. Just as in working against any unlawful behaviour, online or offline, ALDE will do as much as possible, while maintaining a fair balance of fundamental rights, such as the right of information and the right of free expression.

Unfortunately the position paper leaves it unclear what this would mean for ALDEs position towards article 13 of the Commission’s proposal (which require upload filters for online platforms). Continue reading

A couple of ways EPP can go against their own line on copyright with article 13

The Rape of Europa
Copyright gone wrong
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For those watching the copyright debate in the European Parliament it is no mystery that European People’s Party is the key power to influence the future of the Digital Single Market in this area. The largest Parliamentary group, whose representatives hold crucial positions on the dossier, has adopted a group line on copyright. While both the LIBE and JURI Committees debate their compromise under EPP rapporteurs, what could possibly go wrong?

The hard line and the blurred line

The Parliamentarians affiliated with EPP have not presented a unified line in the reform debate, especially if it comes to content filtering (article 13 of the proposal). Their positions across various committees have ranged from hardliners such as Angelika Niebler’s, supporters of closing the value gap like Axel Voss, the current rapporteur at JURI, through the balanced position of Therese Comodini, Voss’ predecessor; to rapporteur Michał Boni’s decent draft report at LIBE or Róża Thun’s proposal for deletion tabled at IMCO.

In these circumstances EPP’s attempt to create a common ground is understandable – it is a way to preserve group unity. On the other hand, the exercise can only prove effective if it shaves off the extremist positions: of making the EC proposal even more troublesome for platforms and users as well as of deleting the article.

Positions of the political groups in JURI with respect to selected elements of the DSM directive proposal [Source].

The EPP group line adopted in July 2017 tries to reconcile a need to close the perceived value gap with some arguments protecting fundamental rights. The vision for EPP’s ideal article 13 is to ensure platforms enter into licensing agreements with rightholders to secure a better revenue for the latter.

Harming e-commerce, taking it easy on the filtering?

Similarly to the governments of France, Portugal and Spain, EPP is determined to change the interpretation of safe harbour that shields hosting providers and online platforms from liability for infringements committed by their users. In their words: Continue reading

France, Spain and Portugal: We must adapt the internet to the reality of copyright (not the other way around)

La liberté guidant le peuple
Vive le ©, mort aux plates-formes ouvertes!
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Lately we have written so much about ourselves, human rights organisations, academics (1|2) and member states (1|2) criticising the upload filters proposed in article 13 of the proposed DSM directive that one could almost forget that there are indeed powerful forces who are pushing for these filters to become a reality.

A new set of documents leaked by Statewatch presents an (un)welcome reminder of of the fact that the idea of upload filters has powerful supporters outside of the music industry and that they wield considerable influence on the discussions in the council. The set of documents consists of a document containing “amendments to recitals 37, 38, 39 and Article 13” proposed by the French, Spanish and Portuguese delegations (dating from 2 october) and a document by the Estonian Council Presidency containing the questions raised to the Member States during 17-18 October meeting of the Council Working Party on Intellectual Property, which echoes the tone set by the amendments proposed by the three member states.

The amendments proposed by France, Spain and Portugal offer the clearest view yet on what the proponents of article 13 want to achieve. In their eyes article 13 is not about vague and ill defined “measures to ensure the functioning of agreements concluded” between rightsholders and online platforms but about creating a complete change of the legal status of open online platforms. The amendments proposed make an attempt to (a) re-define the activities of online platforms as communication to the public undertaken by those platforms and to (b) remove online platforms that allow uploads by their users from the protections afforded to them by the e-commerce directive.

Legal uncertainty exists as regards the conditions under which the provision of access by information society service providers allowing users to upload content can be considered as an act of communication to the public. This affects rightholders’ possibilities to determine whether, and under which conditions, their works and other subject-matter are used as well as their possibilities to get an appropriate remuneration for it. The present directive clarifies the conditions under which such information society service providers can be considered to perform an act of communication to the public and therefore do not fall in the scope of Article 14 of the Directive 2000/31/EC. (recital 37, additions by FR/ES/PT in bold)

While the proposed Copyright in the Digital Single Market directive is seen by most stakeholders as an attempt to adapt the copyright rules to the evolving realities of the digital economy, the French (and their Portuguese and Spanish supporters) are clearly of the opinion that it should be the other way around: according to them the realities of the digital world must be adapted to the principles of copyright orthodoxy (i.e to a legal constructs established in the late 19th century). Continue reading

More academics speak out against upload filters for online platforms

Man met een brief
Article 13 is incompatible with fundamental rights
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It seems like it is open letter writing season in Brussels right now. In the absence of any real legislative progress the directive on Copyright in the Digital Single Market, experts and other stakeholders are seizing the opportunity to make their voices heard. After more than 50 civil society organisations including Human Rights Watch, Reporters sans Frontiers and the Freedom of the Press Foundation issued a statement opposing the online filtering provisions proposed in article 13 of the Commission’s proposal, a group of more than 50 high profile copyright scholars has come forward with yet another statement opposing article 13.

In their paper “The Recommendation on Measures to Safeguard Fundamental Rights and the Open Internet in the Framework of the EU Copyright Reform” published on SSRC statement, the academics led by Professor Martin Senftleben (VU Amsterdam) restates the main problems posed by article 13 and recital 39:

The measures contemplated in Article 13 DSMD can hardly be deemed compatible with the fundamental rights and freedoms guaranteed under Articles 8 (protection of personal data), 11 (freedom of expression) and 16 (freedom to conduct a business) of the Charter of Fundamental Rights of the EU. The application of filtering systems that would result from the adoption of Article 13 DSMD would place a disproportionate burden on platform providers, in particular small and medium-sized operators, and lead to the systematic screening of personal data, even in cases where no infringing content is uploaded. The filtering systems would also deprive users of the room for freedom of expression that follows from statutory copyright exceptions, in particular the quotation right and the right to parody.

The adoption of Recital 38 DSMD would moreover lead to a remarkable restriction of eligibility for the liability privilege following from Article 14 of the E-Commerce Directive. Recital 38 DSMD does not adequately reflect the current status quo in the area of the safe harbour for hosting laid down by Article 14 E-Commerce Directive. […] The general requirement of “knowledge of, or control over” infringing user-generated content is missing. In the absence of any reference to this central requirement, Recital 38 DSMD is incomplete and fails to draw an accurate picture of the current conceptual contours of the safe harbour for hosting. […] Because of the ambiguous wording of Recital 38 DSMD, there is a real risk of modifying the notion of “communication to the public” considerably.

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