In an incredible show of political support for a more reasonable copyright law, today 104 members of the European Parliament sent a letter to Rapporteur Voss asking him to delete the harmful press publishers right—Article 11. The signatories include MEPs from across the political spectrum. Signatories of the letter state that:
While we support efforts to ensure a level playing field between online platforms and businesses through the enforcement of competition and consumer rules, we believe that the introduction of a new European neighbouring right will have a nocent and injurious effect on citizens’ access to quality news and information.
Ever since the Commission released its original proposal for a Directive on Copyright in the Digital Single Market, we’ve been arguing that introducing a new ancillary right for press publishers is a terrible idea. We’ve 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.
As already shown by example in Germany and Spain, a press publishers right will be completely ineffective in promoting quality journalism or getting reporters and authors paid, and it will have massive negative repercussions on access to information for everyone online.
Last week’s big news was dominated by the agreement from COREPER on a negotiating mandate for the proposed Directive on Copyright in the Digital Single Market. The verdict: Member States have agreed on a text that fails to address the biggest shortcomings of the Commission’s proposal, and in a number of ways actually makes it worse.
But recently Rapporteur MEP Axel Voss also published a his first proposal for a compromise amendment on Article 3, the exception for text and data mining (TDM).
Since the release of the original Commission proposal, we’ve criticised the TDM exception as not going far enough to achieve its intended objectives, because it would limit the beneficiaries of the exception only to research organisations, and only for purposes of scientific research. While there were interesting amendments floated by a few of the Parliamentary committees, it seems that few of the progressive changes have been seriously considered by JURI.
In parallel, the Council presidencies have not done anything that would significantly improve the situation, either, with their main contribution being the introduction of an optional provision, often referred to as “3a”. This additional arrangement would cover TDM activities that fall under temporary reproductions and extractions, and would apply to beneficiaries beyond research organisations, and for uses other than scientific research. But those acts would be limited in that they only apply for works for which rights holders are not explicitly prohibiting such uses.
Last week we pointed out that when it comes to Article 13 both the version discussed (and since adopted) by the Member States in the Council and the compromise proposals discussed in the European Parliament’s JURI Committee are pretty terrible. In light of the negotiation mandate adopted by the Member States last week the only real option preventing mandatory censorship filters from becoming a reality for internet users in the EU is the European Parliament’s adoption of a position that renounces such filters, or (at the very least) ensures that any efforts to filter respect the fundamental rights of EU internet users.
Unfortunately, the direction of the discussions in the JURI Committee clearly point toward an EP position that would support mandatory upload filters. In this situation, it is important to remember that for almost a year, the European Parliament has been sitting on an opinion from the Internal Market and Consumer Protection (IMCO) Committee that would limit the negative effects of Article 13. Since then, the text of the IMCO opinion, adopted on the 8th of June 2017 (!), has also been adopted by the Civil Liberties (LIBE) Committee.
Persuant to the European Parliament’s procedural rules, both LIBE and IMCO are associated committees. This means that their versions should form the basis of the discussions in the Legal Affairs Committee. Yet the difference between the current compromise proposed by MEP Voss and the IMCO/LIBE text could not be greater. This becomes evident when comparing the internal logic of the JURI/LIBE version (flowchart below) with a flowchart depicting the internal logic of the JURI version (see here):
Last Friday the Committee of Permanent representatives of the Council (COREPER) agreed on a negotiating mandate for the proposed Copyright in the Digital Single Market directive. The agreed upon text does not substantially differ from the latest compromise proposals that we have discussed here before. Unfortunately that means that the Member States have agreed on text that fails to address the biggest shortcomings of the Commission’s proposal and in a number of cases actually makes it worse.
The result is a version of the Commission’s proposal that is even more out of balance than the original. The rights-holder lobby has managed to capture the Member States to advance their agenda to the detriment of the interests of internet users in the EU and in complete disregard of the original intention to further harmonise the fragmented EU copyright rules:
Over the past one and a half years the Member States, driven by a mediterranean maximalist coalition (France, Italy, Spain and Portugal) have doubled down on the Commission’s highly problematic proposal to impose upload filters for open internet platforms. As we have explained here, the version of Article 13 adopted by the Member States would create a new parallel liability regime that puts the creative expression of platform users at the mercy of a censorship machine run by platform operators in collusion with rightsholders.
Driven by the same mediterranean maximalist coalition the Member States have insisted on a narrow, innovation-hostile exception for Text and Data Mining. This approach flies in the face of the EU wide ambition to become an important player in the area of machine learning and artificial intelligence. At the insistence of more forward-looking Member States the Council text also includes an optional exception that allows TDM for a wider set of purposes and beneficiaries, but this comes at the cost of further splintering user rights in the EU.
Under intense pressure from Germany the Member States have maintained the introduction of a new ancillary copyright for press publishers against a near-universal academic consensus that such a right will endanger the freedom of information without benefitting press publishers. In a small improvement of the Commission’s proposal the new right would now last for a maximum of 2 years and would not apply retroactively.
There are a few areas where the Member States are proposing improvements to the Commission’s proposal (such as a more streamlined process that would allow cultural heritage institutions to make out-of-commerce works available online, and a new, albeit optional, paragraph providing a legal basis for extended collective licensing) but in general the Member States have missed the opportunity to fix the Commission’s flawed original proposal. Continue reading →
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 →
But we shouldn’t have been surprised when MEP Axel Voss came out with an even worse plan for the press publishers right. This week MEP Voss released his proposal for a compromise on Article 11, and the changes he is proposing are even more radical and more broken than anything we’ve seen thus far.
Expanding the scope to cover facts
First, Voss proposes to expand the scope of beneficiaries of Article 11 from to cover not only press publishers, but also news agencies (who aggressively lobbied for being included in the scope of Article 11 late last year). But in doing so, he introduces the risk of inappropriately granting copyright – like protection to facts and compilations of basic information. This is a dangerous extension of the scope of exclusive rights that would endanger the right of access to information. It is especially appalling since even the founders of the “modern” European copyright system wisely choose to make sure that news of the day and facts cannot be exclusively claimed: The 1986 Berne convention explicitly states that copyright shall “not apply to news of the day or to miscellaneous facts having the character of mere items of press information”.
Perhaps the most extreme change is that press publishers and news agencies would be granted (or saddled with?) an “inalienable right to obtain an fair and proportionate remuneration for such uses.” What does this mean? It means that publishers would be required to demand payment from news aggregators and other users. Continue reading →
Generally speaking it is a good indication that a policy is bad if there is a need to make a large number of exceptions to prevent it from doing lots of unintended harm. This principle is on full display in the discussion about article 13. As we (and many others) have argued before, article 13 is broken so badly that it cannot be fixed and should be deleted. The key problem with article 13 is that the music industry is employing its old weapon of choice (copyright law) in an attempt to reign in behaviour of a very small group of online platforms that is perceived as problematic by the music industry. By using copyright law as a trigger for the licensing and filtering obligations contained in article 13, the article inevitably effects every other online platform that deals with copyrighted contents (i.e pretty much all online platforms).
It is not surprising that other platforms that operate in completely different markets (like GitHub which has nothing to do with uploading music) have started to realise that article 13 is a threat to their businesses and are demanding to be excluded from the scope of article 13. While excluding such platforms seems like an obvious choice to prevent some of the worst side effects of the provisions contained in article 13, it will not fix the underlying problem: In an age where copyright touches almost every online business model, copyright law is not a suitable regulatory instrument to adjust the bargaining positions of specific industries anymore. In order to make sure that article 13 has no negative side effects it would need to come with a list of exceptions that excludes every single business model that it is not targeted at. Continue reading →
This spring the ongoing effort to modernize the outdated copyright rules enters into the decisive fase. It is widely expected that both the European Parliament and the EU Member states will their position on the proposed Copyright in the Digital Single Market Directive. Right now things are not looking good: instead of a much needed update of the copyright framework that would enable new uses driven by technological innovation, policy makers in Brussels are working towards new restrictions that would would limit how information and creativity can be shared and enjoyed online.
Against this backdrop we are organising European Copyright Action Days on 19-21 march in Brussels. During these days we want to highlight the broad opposition of civil society, libraries, the users industry and many others concerning the restrictive aspects of the copyright reform proposal. During these days activists will convene in Brussels to discuss with lawmakers and advocate for a more future proof reform and to raise attention for the dangers of the proposed measures. Continue reading →
After more than a year of discussions MEP Axel Voss has finally come forward with his ideas about one of the most controversial aspects of the EU copyright reform proposal. On Wednesday he shared his compromise proposals for Article 13 of the proposed copyright in the DSM directive, that deals with filtering measures aimed at online platforms. The “compromises” drafted by MEP Voss make it clear that with regards to article 13 he has chosen to do the bidding of the music industry at the expense of users, open platforms and pretty much the rest of the internet.
Let’s focus on two main aspects of the approach that Voss is backing (for a more comprehensive analysis of his compromise see Julia Reda’s excellent write-up here). What would the new rules mean for users sharing materials via platforms, and what would the new rules mean for online platforms?
Online platforms: License or cease to exist!
In the version supported by MEP Voss, article 13 establishes two different obligations for online platforms that allow user uploads. In a first step, all platforms are required to obtain licenses from rightsholders. Those platforms that hold “significant amounts” of content also need to take “appropriate and proportionate measures to ensure the functioning of these agreements”. In the case that platforms do not have licensing agreements with rightsholders they need to take “appropriate and proportionate measures to prevent the availability on their services of works or other subject-matter”.
These rules would effectively end the current situation in which online platforms are not directly responsible for content that their users upload. The new rules would mean that all online platforms “that store and provide access to the public to copyright protected works or other subject-matter uploaded by their users” (which means pretty much all platforms) will be directly responsible for the content uploaded by their users and must obtain licenses from (unspecified) rightsholders. If they don’t (which is a strange condition given that all platforms must do so) they must implement filtering rules that prevent all copyrighted works from becoming available on their services. In other words, platforms must obtain licenses from rightsholders or they must cease to exist (as it is somewhat hard to make a business case for a platform on which nothing is available). Continue reading →
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.