The European Commission’s new proposal for re-use of public sector information: improving but some fixes still required

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PSI Directive proposal: some fixes still required
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Today, Communia feedback to the European Commission on its proposal to amend the Directive on the re-use of public sector information. This is the second time the Commission has proposed to update the legal framework for access to and re-use of Public Sector Information (PSI) since the Directive was adopted in 2003. The most important changes from the previous amendment (2013) was the introduction of a genuine right to re-use by making  all content that can be accessed under national access to documents laws reusable, and expanding the scope of the Directive to cover libraries, museums, and archives.

This time, the European Commission has proposed to make more research data available, extends the scope to public undertakings (including transportation data), and further limits the scenarios in which public entities may charge for data. This proposal was preceded by public consultations (see COMMUNIA’s response).

We support the proposal to amend Directive, but at the same time we want to draw attention to some issues where the proposal should be improved. Below are our recommendations.

Re-use of research data held by educational and research establishments

We fully support the extension of the scope of the directive to “certain research data, a specific category of documents produced as part of scientific research, namely results of the scientific fact-finding process (experiments, surveys and similar) that are at the basis of the scientific process”. However, the extension of the scope of the directive in this respect should be combined with making them available under permissive open licenses (such as CC BY), or even put into the worldwide public domain using a tool like the CC0 Public Domain Dedication.

At the same time, the proposal excludes publications in scientific journals from its scope. The Horizon 2020 programme Model Grant Agreement already requires that grantees must ensure open access to all peer-reviewed scientific publications — meaning that “any scientific peer-reviewed publications can be read online, downloaded and printed.” It should go further to require that re-use rights be granted to both publications and associated datasets, by requiring that permissive open licenses be applied at the time of publication. For this reason, we urge the Commission to ensure that policy efforts to improve access to publicly funded scientific research (including the upcoming Horizon Europe framework) are complementary — and not in conflict with — each other.

As Member States will be obliged to develop policies for open access to research data resulting from publicly funded research while keeping flexibility in implementation, we urge the Commission to prepare guidelines in this area.

Open licensing as standard mechanism for sharing PSI

Unfortunately, the new proposal doesn’t go far enough in requiring open licensing for PSI. Instead, it only relies on the 2014 guidelines. The 2014 guidelines provided recommendations for standard licences, datasets and charging for re-use of documents, and put a lot of emphasis on the use of standard open licenses. Therefore we recommend the ​Commission codify their earlier guidelines on recommended standard licences for PSI, and also ensure accurate licensing metadata across PSI and open data portals that reflects these licensing options.

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

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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

Database Directive Study: Options for Neutralising the Sui Generis Right

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Finally a way out of the database rights maze?
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A few weeks ago the European Commission published a study on the ongoing evaluation of the Database Directive. The report was led by the Joint Institute for Innovation Policy, and contains an analysis of last year’s public consultation, as well as information from expert interviews and a stakeholders’ workshop.

The Commission’s evaluation study confirms some of our suspicions that the sui generis right is doing little to increase the production of databases in the EU. The report notes, “the effectiveness of the sui generis right, as a means to stimulate investment on databases, remains unproven and still highly contested” (p. ii). Perhaps not surprisingly, the report shows a split between the views of database producers and users. Whereas users argue that the confusion and overall ineffectiveness of the sui generis right means it should be repealed, some database makers take the opposite view, claiming that the sui generis right “is an effective means to protect databases which is often used alongside other means of protection, such as contractual terms, copyright and technological measures” (p. ii).

The evaluation of the Database Directive

To recap the issue, the study is about Directive 96/9/EC on the legal protection of databases (Database Directive). The Directive came into force on 27 March 1996. It attempted to harmonise the copyright rules that applied to original databases, and also created a new sui generis right to protect non-original databases on which major investments have been made by database makers.

Last year the Commission launched a public consultation on the application and impact of the Database Directive. Communia responded to the consultation, and published a policy paper with recommendations for the future of the Database Directive. We argued that even though the Directive has successfully harmonised the legal protection of databases with regard to copyright, there is no clear evidence that the sui generis right has improved the interests of businesses or improved EU competitiveness by increasing the production of databases. And the introduction of the sui generis right has increased the complexity and confusion for database producers as well as users.

Our recommendations included the following:

  • repeal the sui generis database right;
  • harmonize the limitations and exceptions provided in the Database Directive with the Infosoc Directive and make them mandatory;
  • if it is not possible to fully revoke the sui generis right, the Commission should amend the Database Directive to introduce a system whereby producers of databases must register to receive protection under the sui generis right; and
  • set a maximum term so that there cannot be perpetual extensions of database protection.

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

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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

Transparency and the ongoing hypocrisy around “evidence-based” policymaking

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Policymakers should back up rhetoric with action
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We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation.

Today’s topic for Copyright Week is Transparency: Whether in the form of laws, international agreements, or website terms and standards, copyright policy should be made through a participatory, democratic, and transparent process.

For Copyright Week last year we wrote about transparency and representation in relation to the public consultations leading up to the European Commission’s release of their new Directive on copyright in the Digital Single Market. Our headline read, “Evidence-based copyright policy making should be a no-brainer.” We argued, “It’s obvious to us that any legislative proposal should be developed from reliable, impartial economic and policy research whose foundation is based on evidence and facts.” But when we saw what was in the Commission’s draft, it became clear that a large swath of substantive feedback from the public was mostly ignored.

Here we are a year later, and the situation in the EU has not improved one bit.

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

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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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More academics speak out against upload filters for online platforms

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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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Strong voice of civil liberties organisations against censorship in copyright framework

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Anyone following copyright debate may have an impression it is all about “money, money, money” (Abba). In COMMUNIA we believe that such an approach shows deep misunderstanding about the function of copyright. Copyright is just one angle of approaching more broader challenge, namely providing a just framework for to access to knowledge, information and culture. A well balanced copyright system is one of the fundamental underpinnings of a knowledge-based society.

Possibly the strongest challenge to such as system is are the proposals for forcing online platforms to filter all content uploaded by their users, put down in article 13 of the proposed Directive on copyright in the Digital Single Market. We have underlined many times before that proposed regulation will have a chilling effect on sharing content, access to information and the the ability to operate open platforms online.

Today, over 50 NGOs (including COMMUNIA) representing human rights and media freedom have send today an open letter to the European Commission President, the European Parliament and the Council asking them to delete the content filter mechanism. This letter comes ahead of a crucial vote in the European Parliament’s Civil Liberties committee, in which the MEPs tasked with upholding our fundamental freedoms will give their opinion on the upload filters that the Commission wants to introduce through article 13. The signatories of the letter, which include many prominent human rights organisations like the Freedom of the Press Foundation, Human Rights Watch and Reporters without Borders, believe that the mechanism introduced through article 13:

  • would violate the freedom of expression set out in the Charter of Fundamental Rights;
  • provokes such legal uncertainty that online services will have no other option than to monitor, filter and block EU citizens’ communications.; and,
  • includes obligations on internet companies that would be impossible to respect without the imposition of excessive restrictions on citizens’ fundamental rights.

If the European Union decides to approve the European Commission’s proposal, this would constitute an unprecedented step towards building an online censorship infrastructure. Similar filtering obligation have previously been rejected in the context of preventing terrorism and hate speech. Continue reading

Commission pushes inconvenient copyright research down the memory hole

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An inconvenient truth about online infringement
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This week MEP Julia Reda shared an unpublished report of a study examining the effects of copyright infringement on sales of creative works. Apparently the contract for the economic research was tendered by the Commission in 2014 for €360,000. It was completed in 2015 but never published, and Reda received a copy of the report after several freedom of information requests.

The background of the study hinges on the assumption that “illicit use of copyrighted material reduces revenues of rights-holders and thus their incentives to produce content.” (p. 19). As our friends at EDRi are pointing out, this assumption is one of the underlying motivations for the Commission’s deeply flawed crusade against open online platforms. So what does the research show? From the report (our emphasis):

In 2014, on average 51 per cent of the adults and 72 per cent of the minors in the EU have illegally downloaded or streamed any form of creative content […] In general, the results do not show robust statistical evidence of displacement of sales by online copyright infringements.” (p. 7)

This result is not shocking. Many online content providers are finding that users will pay for content when that content can be conveniently accessed at a fair price—hence the significant growth of popular online film and television streaming services like Netflix. But this is not the narrative that the Commission wishes to promulgate, as it doesn’t fit their worldview. Or more accurately, it doesn’t align with the interests of the incumbent content industries, who, as we’ve argued, want nothing more than “to minimize the impact of the fundamental changes brought about by digital technologies and the internet on legacy business models.”

One assumes that the findings from this study would have been a useful input into the Commission’s proposal for the Directive on Copyright in the Digital Single Market. And surely it would have been interesting to creative sector economists, the startup and technology communities, consumer rights organisations, civil society advocates, and the public at large. Instead, the Commission pushed ahead and introduced restrictive copyright reforms that blindly tries to stop something, which according to research commissioned by the Commission itself is not a problem.

This incident makes a few things crystal clear: 1) the Commission has confirmed it has no interest in pursuing evidence-based policymaking, and 2) freedom of information laws are an increasingly vital tool by which to shed light on the shady workings of some public institutions.

Germany to Commission: Article 13 endangers the competitiveness of European enterprises

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Germany says upload filters may be illegal
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Two weeks ago we highlighted the fact that six EU member states had asked questions to the Council legal service about the legality of Article 13 of the proposed Digital Single Market directive. Yesterday it emerged that the government of Germany also has serious concerns about Article 13 and asked its own set of questions to the Council legal service. As our friends at copybuzz.com point out, this move by Germany adds a lot of weight to the questions raised by Belgium, the Czech Republic, Finland, Hungary, Ireland and the Netherlands before the summer. While the questions asked by the German document more or less mirror the concerns of the other six member states, there are also some important differences.

A lot of the concerns raised by the six member states centered on the relationship between the Commission’s proposed Article 13, user rights granted under exceptions and limitations, and the rights enshrined in the EU fundamental rights charter. In contrast the intervention by the German government seems to be motivated by a different set of concerns. In the introductory paragraph of the document they write (emphasis ours):

We welcome the fact that the Commission has addressed the matter of how to fairly distribute the value created by internet platforms. We must ensure that creative individuals receive fair pay, also if their work is available on the internet. Concurrently, platforms must not be jeopardised in their function as a societal medium of communication. Moreover, it must be ensured that the competitiveness of European enterprises and the freedom of scientific communication are not impaired.

Based on this is seems clear that the German government is primarily worried about the potential negative impacts that Article 13 would have outside the narrow confines of the music industry. The German government is concerned that the Commission, driven by the the music industry’s desire to cripple the liability exceptions of the E-Commerce directive, will undermine the economic basis for much of Europe’s digital economy.

A threat to the digital economy and academic research

Similar to the six member states before it, the German government is not at all convinced that the Commission’s proposal will leave the legal principles established by the E-Commerce directive intact. From the German point of view this is especially worrisome as the liability exceptions apply to many platforms other than the video sharing and social media services targeted by the music industry. And while the music industry is without a doubt an important contributor to the EU economy, so are other sectors that rely on online platforms and the protections granted by the E-Commerce directive (see for example this excellent report by the Open Forum Europe and the Free Software Foundation Europe that highlights how Article 13 would create substantial burdens for collaborative software development in the EU). Continue reading