Today the Copyright working group of the Council is meeting for the first time under the new Bulgarian presidency. The agenda consist of discussions about articles 11 (press publishers right) and article 13 (upload filters for online platforms) and it appears that the Bulgarian Presidency is planning to push ahead on both of them in line with the one sided approach taken by the Estonian presidency. In the light of this meeting Pirate Party MEP Julia Reda has released a video featuring a number of MEPs from across the political spectrum speaking out against mandatory filtering of user uploaded content:
In the video the MEPs make it clear that filtering technology that would be mandated under article 13 will be used to limit the free expression of internet users in the EU. They also point out that it is highly problematic to require large corporations to install filtering technology that they will then operate outside of any public oversight and without any ability for meaningful recurse by normal users.
The examples provided by the MEPs in the video are a welcome reminder that it will not be enough to prevent upload filters from becoming mandatory by deleting article 13 from the proposed DSM directive, but that we we need to regulate the application of existing filtering technology and that that we finally need to positively define what rights users have when it comes to re-using existing works to express themselves online.
Today COMMUNIA sent a joint letter to all MEPs working on copyright reform. The letter is an urgent request to improve the education exception in the proposal for a Directive on copyright in the Digital Single Market. It is supported by 53 organisations representing schools, libraries, universities and non-formal education, and also 5 individual educators and information specialists.
The future of education determines the future of society. In the letter we explain the changes needed to facilitate the use of copyrighted works in support of education. We listed four main problems with the Commission’s proposal:
#1: A limited exception instead of a mandatory one
The European Commission proposed a mandatory exception, which can be overridden by licenses. As a consequence educational exception will still be different in each Member State. Moreover, educators will need a help from a lawyer to understand what they are allowed to do.
#2 Remuneration should not be mandatory
Currently most Member States have exceptions for educational purposes that are completely or largely unremunerated. Mandatory payments will change the situation of those educators (or their institutions), which will have to start paying for materials they are now using for free.
#3: Excluding experts
The European Commission’s proposal does not include all important providers of education as only formal educational establishments are covered by the exception. We note that the European lifelong-learning model underlines the value of informal and non-formal education conducted in the workplace. All these are are excluded from the education exception.
#4: Closed-door policy
The European Commission’s proposal limits digital uses to secure institutional networks and to the premises of an educational establishment. As a consequence educators will not develop and conduct educational activities in other facilities such as libraries and museums, and they will not be able to use modern means of communication, such as emails and the cloud.
You can still endorse the letter by sending an email to email@example.com. You can read the full letter below or download the PDF.Continue reading →
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.
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]
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.
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 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 →
After a few postponements, the vote at the LIBE Committee on their opinion on content filtering article is finally happening today. Given the variety of amendments tabled by its members, it is understandable that the MEPs took their time in negotiating common ground. Unfortunately the deletion of article 13 was not an option for the Civil Liberties Committee. So what would be the next best outcome of the vote?
The peculiar fate of LIBE’s draft opinion
LIBE was the last Committee to be granted a right to release an opinion on the current copyright dossier. Following the Committee mandate, it will only opine on article 13 and corresponding recitals as the ones having implications on fundamental rights and privacy of users. In his decent draft opinion, rapporteur Michal Boni stepped away from the content filtering obligations and tried to clean up the mess the European Commission had left MEPs to deal with regarding intermediary liability.
That probably didn’t help him make more friends within the European People’s Party, his own group that in part supports the filtering obligation. However, in a surprising twist of events, Boni’s draft was adopted as part of the final opinion of the Internal Market and Consumer Protection Committee, instead of the compromise language proposed by rapporteur Catherine Stihler and some truly horrific alternative ideas on how to make filtering great again authored by someCommitteemembers.
A compromise by popular demand
This move gave some prominence to the draft, probably a bit more than it needed from the perspective of the LIBE Committee workflow. We can only suspect that the backers of content filtering as the go-to solution to enforcing copyright did not like the fact that a proposal deprived of it gained traction in the Committee where the rapporteur has a seat during JURI Shadows’ meetings. It is quite possible that the rescheduling of the vote had to do with the fact that the draft opinion has as many fans as it has enemies. Continue reading →
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 →
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?
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.
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 →
This week we learned about a research study requested by the Legal Affairs committee regarding the potential impact of Articles 11 and 14-16 of the Commission’s proposed Directive on Copyright in the Digital Single Market. The research was overseen and published by the Policy Department for Citizens’ Rights and Constitutional Affairs.
We are especially interested in the assessment of Article 11—the provision that would create new rights in press publications that would allow to press publishers to control digital uses of even the smallest snippets of their content. COMMUNIA has long advocated that the press publishers right should be removed from the proposed directive. Not only is the mechanism ill-suited to address the challenges in supporting quality journalism, it would have the effect of decreasing competition and innovation in the delivery of news, limit access to information, and create widespread negative repercussions for related stakeholders.
The European Commission, which came up with this idea, has offered no data about how a new right would increase revenues to sustain a free and pluralist press.
On the other hand previous Academic research as well as statements from the media companies themselves confirm that Article 11 won’t accomplish its aims, and is a danger to access to news online. The independent analysis commissioned by JURI conforms this once again, which should finally put the nail in the coffin on the press publishers’ right. The report concludes:
There are real concerns surrounding the rather uncertain effects of the right, and many of the problems facing press publishers can be resolved by a much less controversial intervention. We therefore approve the proposal made in the draft JURI Opinion, namely that the press publishers’ right be abandoned and replaced with a presumption that press publishers are entitled to copyright/use rights in the contents of their publications. (p. 8)
The authors of the research take a look at instances where a press publishers’ right has already been implemented, such as Germany and Spain. They conduct interviews with stakeholders on the ground to analyse the implications and effects of the ancillary rights there.Continue reading →
The European Union is currently discussing a reform of its copyright system, including making mandatory certain copyright exceptions, in order to introduce a balance into the system. However, no one, except Julia Reda, is paying any attention to one of the biggest obstacles to the enforcement of copyright exceptions in the digital age: technological protection measures (TPM), including digital rights management (DRM). In this blogpost we will present the reasons why the European Parliament should not lose this opportunity to discuss a reform of the EU anti-circumvention rules.
No balance between anti-circumvention prohibitions and users rights
The InfoSoc Directive incorporates rules regarding the protection of TPM in articles 6 and 7, which do not adequately take into account users rights created by copyright exceptions and limitations. First, Member States are only obliged to guarantee that users can access and use a TPM-protected work in relation to a closed-list of “privileged exceptions”. Beneficiaries of the remaining exceptions are not able to exercise their rights when a work is protected by TPM. Second, only certain privileged users—those who already have legal access to the work—have the right to require the technical means to benefit from the selected exceptions. Finally, the rules that are aimed to protect users do not apply to on-demand online services.
According to the European Parliament’s 2015 impact assessment study, the EU anti-circumvention rules are intend to restrict the exercise of users rights under the exceptions:
The very narrow scope of application of this mechanism evidences a clear intent of the InfoSoc Directive to restrict considerably the enforcement of copyright exceptions in light of their increased economic impact in the new electronic environment (cf. Recital 44). (pg. I-84)