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

Internet is for the peopleLicentie

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

Copyright reform still stalled, but there is some good news for the Public Domain

Wijsheid blijft langer dan schoonheid
some light in the shadows of the big controversy
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After last weeks inconclusive “final” trilogue, the discussions about the EU copyright reform package are paused for their third (!!) winter break. When they resume in January under the Romanian EU presidency the negotiators will be under a lot of pressure to find a politically viable compromise on Articles 13 and 11 and a few other controversial parts of the proposal. In the shadow of these more controversial elements of the proposal the negotiators have managed to provisionally agree on a large number of other issues and among these there are a number of positive developments.

From our perspective the most positive development is the fact that based on an amendment proposed by the European Parliament, the negotiators have provisionally agreed to include a Public Domain clause in Article 5 of the Directive. This clause intended to ensure that reproductions of works in the public domain can no longer be protected by copyright or neighbouring rights (as it is currently the case in a number of EU member states such as Germany and Spain). This is not only welcome because it would solve a real problem or because it would turn one of the recommendations of our Public Domain Manifesto into law, but also because it will be the first ever mention of Public Domain in EU copyright framework! Continue reading

Art 4/2 goes against CJEU landmark ruling on copyright exceptions

Untitled
Do not set a dangerous precedent for user rights!
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The Court of Justice of the European Union has not had many opportunities to review the EU legal framework for exceptions and limitations to copyright, and in the few cases where it had to interpret an EU exception, it has not always adopted positions that are favourable to the beneficiaries of the exceptions. Yet, there is one case, a landmark case for user rights, involving the Technical University of Darmstadt and publisher Eugen Ulmer KG, where the Court exemplary defended the position of such beneficiaries against the rights holders. Now the EU lawmakers want to adopt a law that fundamentally undermines the protection granted by that CJEU ruling to user rights.

How did the CJEU ruling protect user rights?

The TU Darmstadt case revolved around the EU exception that allows public libraries and other institutions to digitize works in their collections and make them available in dedicated terminals located in the libraries reading rooms or elsewhere on their premises (art.5(3)(n) of the InfoSoc Directive). The dispute had several legal issues, but the one important for the analysis of art 4, paragraph 2 of the proposed Directive for Copyright in the Digital Single Market (DSM Directive) is whether the libraries could rely on said exception even if publishers were offering to license a digital version of the books.

The EU exception embodied in art.5(3)(n) of the InfoSoc Directive covers “works and other subject-matter not subject to purchase or licensing terms”. Publishers argued that the mere fact that the rightholder offers to conclude a licensing agreement with a library is sufficient for ruling out the exception. The CJEU considered, however, that, if the mere act of offering to conclude a licensing agreement were sufficient to rule out the application of the exception, such interpretation would:

  1. Be difficult to reconcile with the aim of the exception, which is “to maintain a fair balance between the rights and interests of rightholders, on the one hand, and, on the other hand, users of protected works who wish to communicate them to the public for the purpose of research or private study undertaken by individual members of the public.”
  2. Imply that “the rightholder could, by means of a unilateral and essentially discretionary action, deny the establishment concerned the right to benefit from that limitation and thereby prevent it from realising its core mission and promoting the public interest”.
  3. Be “liable to negate much of the substance of the limitation provided for in that provision, or indeed its effectiveness”, since the limitation would apply only to those increasingly rare works of which an electronic version is not yet offered on the market.

Continue reading

To block or not to block? Commission’s vague “non-paper” does not meet our minimal standard

Man met een brief
Commission non-paper would support filtering
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This week, Politico.eu has shared a “non-paper” prepared by the European Commission on article 13, ahead of the next trilogue on 13 December. The Commission has been tasked during the recent trilogue meeting with proposing a compromise solution on the issue of “mitigation of liability in the absence of a license”, in face of diverging views between the European Parliament and the Council.

In general, any direction on this piece of regulation seems to be lost, with actors participating in the trialogue willing to treat the article like a puzzle, in which puzzles can be rearranged in any way possible – beyond the scope of any previously negotiated and legitimized mandate. The process once again proves to be obscure and lacking with regard to basic rules of participatory policymaking.

The Commission was given several guidelines. These include an assumption that platforms do communicate to the public and need to obtain licenses or that automatic blocking should be “avoided as much as possible”, but is also not forbidden.

Earlier this week, we published four principles, based on which we plan to evaluate the proposed language for article 13. We believe that any version of Article 13 that does not take these four principles into account will need to be rejected in the final vote taken by the European Parliament.

We decided to check the Commission’s proposal, included in the non-paper against our principles. This has been made difficult by the fact that what is proposed in the non-paper is in many ways vague. Once it becomes more substantial, we will be able to make a definitive judgement. But even now, lack of details on some issues – such as protection of content fitting copyright exceptions from overfiltering – is telling. Continue reading

Article 13: Four principles for minimising harm to users, creators and the internet

Vrouw die een stier tracht te bedwingen
4 principles to save article 13 from killing the net
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Later today the negotiators of the Commission, the European Parliament and the Council will meet for the 4th trilogue meeting. After having dealt with less controversial parts of the proposal during the three preceding meetings, tonight, will finally see a discussion about Article 13 of the proposed DSM directive.

Given that all three legislators bring similar versions of article 13 to the table, we can expect that a final compromise text will include some version of the article 13 upload filters. There is still a good chance that the negotiations will be inconclusive or that the eventual outcome of the trilogue negotiations will not be approved by either the Member States or the Parliament (which would mean that the directive will fail and there will be no upload filtering requirement for the foreseeable future). But in the context of the ongoing trilogue, the deletion of article 13 (which has been our position so far) is not an option anymore.

This raises the question of how the damage that article 13 will do to the internet ecosystem and freedom of expression can best be contained. Before we do so let’s take a quick look at the positions that are on the table:

EP position: general blocking of all unlicensed content

The provision adopted by the European parliament can only be described as a total disaster. As the result of a misguided attempt to remove the mention of “measures” from the text of the article the European Parliament adopted a version of article 13 that makes platforms liable for copyright infringements for every single work uploaded by their users. This would include any photo, drawing or text uploaded by a user, regardless if these are old works, works that have been created for the express purpose of being shared widely, or the latest blockbuster movie. As a result of making platforms liable for all works uploaded by their users, they are practically forced to install filters that will block everything that has not been licensed to them. In other words, the EP version of article 13 would turn open platforms into platforms that distribute content licensed by the entertainment industry and nothing else. Continue reading

A (real) proposal to better remunerate creators is on the table and the Council wants to kill it

Vóór Restaurant Royal - den Haag
Fair renumeration not upload filters!
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One of the certainties in copyright policy discussions is that most arguments are made purportedly on behalf of individual creators. Case in point is the EU copyright reform, where the music industry is claiming that Article 13 will benefit creators, where publishers are claiming that they need a publishers right so that journalists get properly rewarded, and where YouTube is claiming that Article 13 will hurt creators. In most of these cases creators are merely used as pawns in the game, in which large intermediaries on both sides of the debate try to ensure that they can gain or maintain as much control as possible over the distribution chain for themselves.

With all this attention for the wellbeing of individual creators it is surprising how little attention has been paid to another provision of the proposed copyright directive. Even worse, a proposal by the European Parliament to include a measure that would directly benefit authors and performers (at the expense of rightsholders pretending to act on their behalf) is currently is facing opposition from Member States.

Under the title “Measures to achieve a well-functioning marketplace for copyright” the Commission had proposed a number of measures aimed at strengthening the position of creators in contractual relationships with intermediaries. Specifically Article 14 introduces a transparency obligation for intermediaries towards rightsholders and Article 15 contains a contract adjustment mechanism intended to give creators some recourse if their works ends up being much more successful than originally envisioned and after which they have already signed their rights away.

From the get go these measures had been criticised by organisations representing performers as not strong enough to really improve the negotiation position of creators. These  have been advocating for an unwaivable right to receive equitable remuneration (something that we considered to be problematic because it would limit the ability of creators to use open licenses).

These calls for such an unwaivable right were ignored, but in september the European Parliament included the addition of a right to fair and proportionate remuneration. It is one of the few positive elements in an otherwise disastrous position. Where an unwaivable right would have made it impossible for creators to freely share their output (if they wanted to do so), the language proposed by the European Parliament should help to get more money into the hands of those creators that actually want it. Continue reading

Reminder: Article 13 will help dominant platforms, not hurt them

A dragon devouring the companions of Cadmus
Regulatory burden will hurt smaller platforms
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Two weeks ahead of the second trilogue meeting on the 26th of November where the most controversial parts of the Copyright Directive will be discussed for the first time, various stakeholders are starting to position themselves for the final stages of the reform process. Yesterday Politico.eu leaked the compromise suggestions prepared by the Austrian Presidency for articles 11 and 13. Unsurprisingly the suggested texts maintain the general approach that was cemented by both the Council and the Parliament over the summer (see analysis by MEP Julia Reda here). By now it is clear that regardless of how much we argue that Article 13 should be deleted and that Article 11 should be limited to a presumption of representations neither of these two things will happen.

Limiting the damage by clearly identifying the services targeted

Under these conditions it seems that the most promising approach to minimize the harm that will be caused by these articles will be to limit what type of services they apply to.

Article 11 should be modified in such a way that it only applies to search engines and news aggregators. These are the type of services that press publishers are claiming to cause them harm (which we continue to doubt). This would prevent a lot of legal uncertainty (and thus damage) for everyone else on the internet.

The same approach makes sense for article 13. The music industry and other rightsholders have consistently argued that they are harmed by large online platforms that allow users to share audiovisual (AV) works. Given that the stated objective of the proponents of article 13 is to create a better bargaining position for rightsholders vis a vis YouTube, Facebook, Google and other commercial platforms, it seems reasonable to limit the types of services that would need to comply with article 13 to for-profit audio visual platforms that compete with licensed services only. Such a measure would prevent a lot of legal uncertainty for platforms that do not deal with AV works or do not operate on a for profit basis. Continue reading

EU Parliament Vote: An Unprecedented Copyright Giveaway

Caïn venant de tuer son frère Abel, by Henry Vidal
European Parliament sells out user rights
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There is no way around it, the outcome of today’s vote on the copyright directive in the European Parliament is a big loss for user rights and the open internet. MEPs have decidedly sided with the demands of the creative industries to hand them more control over how we access, use and share copyrighted works. Out of the seven issues that we listed this morning the European parliament voted against our position every single time.

Taken together the positions adopted by the European Parliament this morning amount to an unprecedented expansion of exclusive rights for a  small subset of already-powerful interests:

  • Under Article 13, rightsholders would get more control over how copyrighted works can be shared on online platforms. It will allow them to force platforms to filter content in ways that will negatively impact users rights.
  • Under Article 11 press publishers would get an entirely new right that will allow them to control how we access and reference press publications.
  • Under Article 3 rightsholders would get the right to prevent anyone other than scientific researchers from using computers to analyse information contained in legally accessible works.
  • Under the new Article 12a sports events organizers would become copyright holders allowing them to prohibit anyone from sharing photos or other recordings of sports events.
  • Finally under the new Article 13b image search engines would need to obtain licenses for even the smallest preview images that they display as search results.

There are a few bright spots in the report adopted today, such as a slightly beefed up education exception and better mechanisms allowing cultural heritage institutions to provide access to out of commerce works, but on balance the result of today’s vote amounts to a substantial weakening of the public domain.

In having chosen the side of the content industries MEPs have turned their back on the potential of an open internet to foster research, access to information and as a driver of creative innovation. This happens against the backdrop of serious concerns from academics that these new rights may be ineffective and will possibly even entrench the dominant position of the dominant platforms providers.

With today’s adoption of the report the path is now clear for negotiations (the so called “trilogue“) between the Parliament, the Council and the Commission (see this helpful infographic for an overview of the remaining steps). Given that on most issues the positions of the three legislators are very similar, this process, which will be guided by the Austrian Presidency, will likely be relatively swift. Once these trilogue negotiations are complete, the resulting text will once more be voted in the European Parliament. This vote, which will likely take place at the end of this year or early next year will be the last possibility to prevent (or at least limit) the effects of today’s land grab by rightsholders. Stay tuned for a more extensive analysis over the next few days.

MEPs Can Still Salvage the Copyright Directive in Today’s Vote

European Parliament (before the internet)
Seven issues where MEPs can #fixcopyright
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On the 5th of July a large majority of the Members of the European Parliament voted against fast-tracking the report of its JURI committee on the Copyright in the Digital Single Market directive so that the full parliament could discuss the contents of the report and make adjustments to a number of controversial provisions. This discussion has taken place over the last few weeks and tomorrow marks the day when the European Parliament will take a final vote on the report.

On the table are a wide range of proposals to amend three of the most controversial parts of the proposed directive, as well as a number of attempts to address omissions in the original text. However, large parts of the JURI text, such as the exceptions dealing with education and access to cultural heritage, have been left untouched and will not be affected by Wednesday’s vote.

EU lawmakers will have the opportunity to agree on some meaningful improvements to the proposed directive which would then become part of the Parliament’s position for the upcoming trilogue negotiation with the European Commission and the Member States. An improved Parliament position is badly needed since the European Commission’s original plan was terribly disappointing and the Member States have adopted a position that is even worse on crucial parts of the proposed directive. In order to keep open the possibility that the EU copyright reform process will result in real improvements to the EU copyright system MEPs must:

  • Text and data mining: Vote for an expanded version of the exception for text and data mining in Article which would allow anyone to text and data mine all legally accessible copyright protected works. This would be guaranteed by a set of amendments tabled by a cross-party coalition called the Digital Agenda Intergroup. Not adopting their amendments would mean that Europe will shut itself off from an essential tool for scientific, societal and economic progress.
  • Press publishers right: Delete the unnecessary and counterproductive Article 11, but it deletion is not possible, limit the most negative effects by refusing to grant press publishers additional rights that will hinder access to knowledge. This would be guaranteed by sets of amendments proposed by the Digital Agenda Intergroup and by the Greens/EFA political group.
  • Upload filters: Ensure that the attempts to address an imaginary value gap driven by the music industry by introducing mandatory upload filters do not damage the open nature of the internet and limit the freedom of (creative) expression online. In addition to deletion of Article 13 the damage can be limited by adopting amendments proposed by the Internal Market and Consumer Protection committee or the Digital Agenda Intergroup.
  • User-generated content: Vote in favor of the new amendments that clarify that users may engage with copyrighted works through remixes, memes and other types of user-generated content (UGC). Support for UGC was indicated in the JURI recitals, but left out of the article text. There are amendments tabled the Digital Agenda Intergroup as well as several MEPs including Cavada, Reda, Adinolfi, and Maštálka.
  • Freedom of Panorama: Vote in favor of new amendments that clarify the ability for European citizens to take and share photography of artworks and architecture in public spaces (freedom of panorama). There are amendments tabled by the Digital Agenda Intergroup as well as MEPs Maštálka and Reda.
  • New rights for sports broadcasters and image search: Vote against the additional copyright protection gifted to sports events organisers snuck into the JURI report, as well as the addition of a licensing requirement for image search engines. Neither of these amendments were debated nor received a sufficient level of scrutiny by the Parliament, and both would result in substantial expansions of the scope of copyright that must be opposed given the absence of any evidence supporting such measures.
  • Support for the public domain: Vote in favor of the amendments that add a positive definition of the public domain to the EU copyright framework. Copyright law takes a big part of its legitimacy from the fact that it creates temporary exclusive rights and this fundamental principle deserves explicit recognition in EU law. MEPs should support the amendments introduced by MEP Adinolfi.