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This week MEP Julia Reda shared an unpublished report of a study examining the effects of copyright infringement on sales of creative works.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.

Member States to Commission: We don’t trust your claims that censorship filters are in line with EU law

A woman shouting into a man's ear-trumpet. Wood engraving.
Are upload filters even legal?
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Hot on the heels of last week’s leak of a (rather depressing) Estonian council compromise proposal that contained two bad proposals for the upload filter comes another leak of a council document. Apparently not all EU Member States are convinced that the Commission’s plans to require online platforms to filter all user uploads is such a good idea! Statewatch has just published a document containing written questions from the governments of Belgium, the Czech Republic, Finland, Hungary, Ireland and the Netherlands to the council legal service regarding article 13 and recital 38.

These questions clearly show that these Member States have serious doubts about the Commission’s repeated assurances that the proposed censorship filters would not affect users’ fundamental rights, do not change the liability exemption of the e-commerce directive, do not constitute a general monitoring obligation and do not change the definition of what it means to make copyrighted works available online.

All of these questions may sound like technical details but they are not. Instead they are at the heart of the discussion about article 13 of the commission’s proposal. Since the commission presented the proposal, a broad coalition of civil society, technology companies and academics has pointed out the problematic relationship between the commission’s proposal and fundamental rights and the principles established by the e-commerce directive.

Member States have serious doubts about legality of upload filters

The music industry organisations are the driving force behind the attempt to censor user uploads and regain control over the ability of millions of online creators to express themselves online. Together with the Commission they have flat out denied that the proposed in article 13 and recital 38 would change existing EU law. The fact that the six member states have formally asked the legal service of the Council (which is independent of the Commission) shows that they are not buying into this narrative. Continue reading

Spain: Publishers pay themselves in desperate effort to show that giving them extra rights actually has an effect

De schout betaalt de boer zijn vergoeding, de weduwe van de baljuw treurt bij zijn doodskist
Publishers pretending that the link-tax works
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Two weeks ago the IMCO committee managed to give a new breath of life into the proposal for an ancillary copyright for press publishers that many observers (including us) had presumed to be more or less dead in the water. Following on the heels of this surprising development interesting information is emerging from Spain where a similar right has been existing since 2015. The situation in Spain shows how ineffective additional rights for publishers are and how publishers try to influence the EU policy debate on copyright reform by manipulating evidence.

Earlier this week the Spanish Association of Publishers of Periodical Publications (AEEPP) published an English version of a study that assesses the impact of the introduction of the ancillary copyright (article 32.2 of the Spanish Copyright Act) in Spain. This article states that a copyright fee must be paid by sites aggregating or otherwise linking to online news to the publishers of such news. These payments (referred to as a Google Tax, after the fact that they seem to be primarily intended to extract revenue from Google) are collected by the CEDRO copyright collection society.

The study comes to a pretty devastating conclusion that clearly shows that granting a new right to press publishers is highly problematic and will not have the desired result of stabilising the business models of struggling publishers:

This analysis concludes that there is neither theoretical nor empirical justification for the introduction of a fee to be paid by news aggregators to publishers for linking their content as part of their aggregation services. Likewise, the arbitrary nature of the fee, which prevents publishers from opting out of receiving the payments, inflicts harm on a large number of outlets, particularly small publications.

Moreover, the introduction of such a fee has a negative impact on competition, not just for the aggregator segment, but also for online publications and, ultimately, for consumers, including readers and advertisers. Continue reading

Copyright and Education in Europe: 15 everyday cases in 15 countries

Copyright and Education in Europe: 15 everyday cases in 15 countriesLicentie

Today we publish the findings of a new study carried out by Teresa Nobre that intends to demonstrate the impact exerted by narrow educational exceptions in everyday practices. She accomplishes this purpose by analysing 15 educational scenarios involving the use of protected materials under the copyright laws of 15 European countries: the Czech Republic, Denmark, Estonia, Finland, France, Germany, Italy, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Spain and the United Kingdom.

Almost no case law was analysed, and uses permitted under licenses, namely extended collective licenses, are not indicated here. Thus, the study does not give a detailed picture of all the countries under analysis.

Materials available for educational uses

This study confirms what we have known for a long time: that not all copyrighted works are treated equally in the context of education. Some educational exceptions exclude the use of certain types of works (textbooks and academic books in France and Germany, dramatic works and cinematographic works in Denmark and Finland and musical scores in France and Spain). Other laws contain restrictions in relation to the extent or degree to which a work can be used for educational purposes, thus creating obstacles to the use of entire works, namely short works (e.g. individual articles, short videos and short poems) and images (e.g. artworks, photographs and other visual works).

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Spain’s El Pais newspaper comes out strongly against ancillary copyright madness

Newspapers B&W
A way forward shall be based on cooperation
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One might think that the debate on the ancillary copyright for press publishers is over – both  JURI Rapporteur  MEP Therese Comodini Cachia and IMCO Rapporteur Catherine Stihler rejected the Commission’s proposal to  provide publishers with a competitive advantage by using copyright legislation. Unfortunately, even with such progressive voices, the misconceptions about the ancillary copyright were still visible even during last weeks  Legal Affairs Committee hearing , where MEPs seemed not to understand that aggregators help news outlets gain a larger audience. And the debate in media on this issue was never more heated and polarized.

Strong voice of El Pais

El País, the largest and internationally most renowned Spanish daily newspaper, has published an op-ed strongly criticizing the idea of introducing the ancillary copyright for press publishers:

But anybody who thinks that those rights can be turned into a fortress from which to impose obligatory and inalienable fees is mistaken. This is a model that has been shown to fail in Germany, in 2013, and in Spain in 2014. Then, efforts to impose an obligatory fee on Google for the use of links to news stories provoked a major fall in web traffic for the Axel Springer group and the closure of Google News in Spain.

What is crucial, El Pais understands the value of digital technologies for press publishers, while many others, especially big German publishers, threat internet as a threat for their business model.

Thanks to the new digital technologies, we are able to reach millions of people we would never have been able to using the old, traditional print methods, while at the same time offering our readers more and better stories in real time and in more attractive formats.

The business of selling only print newspapers is over and will not be back. What publishers should do is to  is adjust their business models to benefit from opportunities created by internet, and not asking for more (copy)rights without providing any evidence that more right actually help them (instead of just hurting others).  El Pais voice, coming from a country with first-hand experience of the ancillary copyright, is invaluable in this ongoing debate. Continue reading

European Commission doesn’t want to say how the directive was conceived

The Birth of Minerva
does the directive come from one man's head?
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Wouldn’t we all want to know how the copyright reform proposal gained its current shape? Was it at a roundtable of sages? Did someone knock Commissioner Günther Oettinger’s head and the proposal sprung out? We have filed an access to documents request (FOIA) to find out what the EC legal services’ opinion was in this process.

Chances are we will not have full clarity on the evidence that substantiated the proposed directive on copyright in the digital single market. After European Digital Rights filed a request to access the correspondence between Commissioners, cabinets and services on the proposal for a copyright Directive in October 2016, the recent response was that there is 1 (ONE!) email that meets the criteria. It would seem that the Commission have a strong oral tradition and excellent collective memory if this is really the only recorded evidence to attest to the quality of the process.

To make things worse, the email cannot be revealed because “the disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure”. We believe that the public interest in knowing how absurdities such as new rights for publishers or the upload filter found its way to the proposal is indeed overriding the secrecy of the only email that has ever been exchanged on the topic. Obviously EDRi has filed a confirmatory application to review the handling of the request that is yet to be considered by the EC.

To learn more about the legality of the most problematic parts of the proposal, Centrum Cyfrowe, COMMUNIA member, filed a FOIA to access the European Commission’s legal service opinion(s) on the drafts of the proposal on February 13, 2017. With the two processes, the Commission has a chance to make the right choice and spill the beans on their intel and sources. If the European Commission decides otherwise, we will be left wondering if the proposal is a result of some intense industry lobbying, or perhaps of unpreparedness of DG Connect to properly address challenges of the 21st century.

Refusal will give a bad name to the EC legal services that could have let out a really bad piece of lawmaking that contradicts existing regulation as well as the EU case law. Moreover, the Commission will prove again that it is one of the least transparent European institutions while keeping its finger on the trigger of change that will shape our digital lives for many years to come.

EVENT Copyright reform: Unlocking copyright for users?

Christus slaapt aan boord van het schip tijdens de storm
European Parliament, September 8
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We happily invite you to the event Copyright Reform: Unlocking copyright for users? that will take place on September 8 in Brussels. The event is hosted by MEP Therese Comodini Cachia and MEP Carlos Zorrinho, and co-organised by COMMUNIA and EDRi.

Join us to discuss key aspects of the current EU copyright reform including the freedom to use copyrighted works (exceptions and limitations) as well as some of the failures of the existing legal framework (copyfails). After the event we invite you to lunch in Jan 3q Brasserie.

Copyright Reform: Unlocking copyright for users? – agenda

11:15 – 11:20      Introduction
Anna Mazgal, Communia

11:20 – 11:25     Welcome
MEP Therese Comodini Cachia (EPP)

11:25 – 11:35      How to understand the L&E practice better?
Launch of copyrightexceptions.eu – Maarten Zeinstra, Kennisland

11:35 – 11:45     What doesn’t work?
The #copyfails and ways out of the copy mess – Diego Naranjo, EDRi

11:45 – 11:55     What works?
Presentation of the Best Case Studies – Teresa Nobre, Communia

11:55 – 13:00    Questions and discussion
facilitated by Anna Mazgal, Communia

13:00 – 13:05   Commentary
MEP Carlos Zorrinho (PASD)

13:05 – 13:15   Closing remarks
MEP Therese Comodini Cachia (EPP)

13:15 – 14:00   Lunch
Brasserie Jan 3q Continue reading

Save the date! How can the reform unlock copyright for users?

Christus slaapt aan boord van het schip tijdens de storm
September 8 in Brussels
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We are impatiently awaiting the European Commission’s communication on the copyright reform that should happen on September 21st. We have a list of issues we think it should cover and together with EDRi we want to talk about what doesn’t work and should be changed as well as what does work and should be further reinforced.

On September 8th in Brussels MEPs Therese Comodini Cachia (EPP) and MEP Carlos Zorrinho (PASD) will host an event co-organized by COMMUNIA and EDRi on the possible future scenarios for copyright.

8.09 save the date

Our friends at EDRi will talk about the copyright deficiencies and areas for change based on their fascinating Copyfails series. We will talk about the need to reinforce users’ rights through the harmonization of limitations and exceptions based on our Best Case Scenarios for Copyright. Kennisland, a Communia member, will present the copyrightexceptions.eu, which collects and visualises where limitations to copyright are implemented in EU member states.

Regardless of the text of the EC Communication we will have our eyes set on the reform that should both protect users’ rights and adjust copyright for the 21st century. We are grateful that MEP Comodini and MEP Zorrinho are hosting this event and help spread this message.

We will publish the agenda of the event and registration info in mid-Agust. Meanwhile, please save the date for this important debate. See you on September 8th, 11:00-13:15 in the European Parliament, Brussels.

 

Research: Orphan Works Directive does not work for mass digitisation

trainwreck
Orphan Works directive: as useless as expected
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In 2012 the European Parliament adopted the Directive on ‘certain permitted uses of orphan works by cultural heritage institutions’. The directive intends to fill the gap between the mission of cultural heritage institutions to share cultural works to citizens, and the complex, costly, and sometimes impossible task of locating rightsholders to get permission for online publication of these orphaned yet still-in-copyright works.

COMMUNIA’s 2012 analysis of the directive showed that it was bound to be a train wreck. A preliminary comparative study of the situation in the UK, the Netherlands, and Italy undertaken by the EnDOW project reveals that the national implementations of the directive across Europe do not provide the much needed solution for the problem of orphan works.

Under the directive, cultural heritage institutions are allowed to publish works online for viewing (not re-use) after a ‘due diligence search’ has been performed, recorded, and submitted to the orphan works database at OHIM. Works that have been registered in this database can then be digitized and made available online under an exception to copyright. So far the project only published its initial results, but we can already see that this piece of legislation will most likely not contribute to large-scale use of orphan works by Europe’s Libraries, Museums & Archives.

The main reason for this is that the diligent search requirements established by the directive have been implemented by member states in such a way that the cost of undertaking a diligent search is prohibitive. The study collected over 210 sources, databases, and registers that need be checked in diligent searches in the UK alone. Researchers from Italy found 357 possible databases and registers. Of the 87 identified sources in the Netherlands, 40 were not freely accessible, and 36 of these required personal contact or a physical visit to an institute. Since the legislation requires cultural heritage institutions to be diligent, they need to check each and every source to be covered by the limited exception provided by the directive.

These results illustrate that the EU approach to orphan works is unreasonably complex and won’t adequately address the problem it’s trying to fix. This is further shown in the actual number of orphan works available through the OHIM Orphan Works Database, which currently only shows 1,435 registered works. More than half of them are in the collection of the Dutch EYE Film Institute (which has worked on rights clearance for these works since at least 2008).

The preliminary results of EnDOW provide evidence that the European Union has failed in this attempt to provide much needed digital access to Europe’s cultural heritage. Given that the Orphan Works Directive does not help with mass digitisation projects, this means that there is a continued need to provide legal mechanisms that allow cultural heritage institutions to make works in their collection available online.

Note: This contribution has been written by Maarten Zeinstra. Maarten is technical advisor to EnDOW. The ideas expressed in this post should not be attributed to EnDOW.

Lisbon Council report shows economic value of flexible copyright

Lisbon Council has published the “2015 Intellectual Property and Economic Growth Index”, which aims to provide evidence for impact of different copyright regimes on economic growth. Positive relation between flexible copyright regimes and economic growth, including in the creative sectors, is the main finding of the report.

Paul Keller, from our member organisation Kennisland, has written an opinion about the report. Paul writes that:

[the report] does make one thing very clear: at least in aggregate, broader and more flexible exceptions and limitations to copyright do not undermine the ability of rights holders to generate income from their rights. In addition, countries with more flexible systems fare much better where it comes to growth of their ICT sectors. In other words, adapting the EU copyright rules by making them less restrictive and more flexible will in all likelihood not result in the collapse of the creative industries in the EU. Instead, such a move can be expected to have a positive impact on the economy of the EU.

Paul’s opinion is available on the Kennisland blog. The report is available at Lisbon Council site.