yes. i am lonesome tonight.

Screenshot of video Licentie

yes. i am lonesome tonight. is a video by visual artist and performer Daniel Pinheiro, and probably one of the most intelligent uses of a pre-existing work that you’ll see on social media platforms today and tomorrow. Not the day after, because copyright infringement will soon prompt its removal.

You see, some of the works created by Daniel Pinheiro rely heavily on copyrighted works that do not belong to him. yes. i am lonesome tonight. consists of a black screen in which the words “yes”, “i did”, “i’m sorry” and “i didn’t” appear as answers to the questions posed by Elvis Presley in the song “Are you lonesome tonight”, composed by Lou Handman and Roy Turk. Elvis sings “Are you lonesome tonight” and Daniel whispers “Yes”. And so it goes:

Do you miss me tonight?

Yes.

Are you sorry we drifted apart?

Yes.

Could fair use save the lonely artist?

Daniel’s intervention is minimal, from a quantitative point of view, and he uses the source work in its entirety, which would weigh against fair use, in countries where fair use exists. Yet I doubt any art curator or critic would not render it as a new and unexpected use of Elvis’ musical performance. In other words, the transformative character of yes. i am lonesome tonight. could perhaps be enough to consider this Visual-Art work a fair use, even when all the remaining statutory factors (such as the amount of the source work used) would traditionally weigh against fair use. Continue reading

EU copyright reform grinds into trilogue negotiations

Oordeel van Salomo
Secret judgment of EU copyright reform
Licentie

Last month the notorious EU Parliament vote approved almost all of the worst measures of the proposed Directive on Copyright in the Digital Single Market. It was a significant setback for user rights and the open internet.

Recap: 12th September Parliament vote

The Parliament voted in favor of Article 13, which even though it didn’t mention explicitly, would in practice force online platforms that host significant amounts of user-uploaded works to filter all content for copyrighted materials and prevent the upload of those works unless a license has been agreed to. If the platforms don’t do this, they would be liable for copyright infringements of their users.

They approved Article 11, which gifts a new copyright-like right to press publishers that will allow them to control how we access and reference press publications and news stories online.

The text and data mining provisions of Article 3 pretty much stayed the same, with a mandatory exception carrying through, but only one which can be taken advantage of by not-for-profit research organisations, and only for the more limited scope of scientific research. An optional addendum would permit an expanded exception applicable to all, but only if the rights holders in the underlying works don’t object to it, or arrange their own licensing requirements.

Article 4, the copyright exception for education applying to digital and cross-border teaching activities, while being seriously improved over the Commission version, still contains the fatal flaw that the mandatory exception can be essentially ignored if there is appropriately licensed content made available in a Member State.

To add insult to injury, the Parliament doubled down on their rights giveaway bonanza, approving Article 12a to grant sports events organizers to prohibit anyone from sharing photos or other recordings of sports events. And the new Article 13b requires that image search engines to obtain licenses for even the smallest preview images that they display as search results.

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
Licentie

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
Licentie

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.

Fair and flexible: what we can learn from Canadian copyright law

Spotprent op het bedrog van de firma C. de Bruyn & Zonen
The "fair dealing" exception
Licentie

With the EU and other states looking to modernise copyright law for the digital era, education exceptions in copyright law are a hot topic. Particularly, the second paragraph of Article 4 of the proposed directive on Copyright in the Digital Single Market that gives room to educational licenses is being contested by educators, learners, and educational organisations. Canadian copyright law includes the doctrine of “fair dealing” — a unique version of a common exception. The European approach sees legal concepts determined by rightsholders through license agreements. Anxious to protect their position of power, representatives of rightsholders in Europe have often pointed at the Canadian exception as a dangerous example that has negatively impacted the educational publishing industry in Canada. These statements do not hold any merit. The Canadian doctrine offers both a solution to the legal question of how copyright exceptions can be drafted to the benefit of education and should inspire countries around the world who want to improve education exceptions. Continue reading

Legal affairs committee sells out user rights to big content & big tech.

Nederlaag van de titanen
but you can still #SaveYourInternet
Licentie

This morning the Legal Affairs Committee of the European Parliament voted on the report on the proposed Copyright in the Digital Single Market Directive. The results are in and they are not pretty: MEPs have adopted Article 13 which would force open platforms operating in Europe to install upload filters. They have also adopted the controversial press publishers right (art 11). As a bonus to rightsholders they granted more rights to “sports event organisers” and adopted a provision intended to force image search engines to pay for displaying thumbnail images as search results.

This amounts to a massive power grab by rightsholders who will enjoy much more control over how we use the Internet to communicate, share, create and inform ourselves. It is a big step away from an open Internet towards an Internet that functions as a distribution channel for mainstream culture. It is a huge loss for European cultural diversity and the freedom of expression online.

It is telling that the MEPs in the JURI committee have also voted against all attempts to give users more rights. Proposals to introduce EU wide freedom of panorama and to allow the use of protected works in User Generated Content (both of which would merely bring the law in line with reality) were voted down. The MEPs adopted a number of small improvements for users in the fields of education, access to cultural heritage and with regards to Text and Data Mining but most of these come with significant drawbacks.

The education exception contains a license priority clause that allows rightsholders to turn off the exception and dictate problematic licensing terms to educational users, which creates a dangerous precedent for users’ rights and goes against the CJEU ruling on this issue.

The Text and Data Mining (TDM) exception is limited to scientific research purposes only. The expansion that would open TDM to everyone for every purpose (which is crucial for the development of technologies such as artificial intelligence in the EU) is merely optional and will not apply across the EU as a whole.

Taken as a whole, the JURI committee’s vote shows an utter disregard for the rights of citizens in the digital environment. It is telling that both the Civil Liberties and the Consumer Protection committees have prepared much more balanced reports that have been completely ignored by the members of the Legal Affairs committee. This shows that lawmakers still treat the rights and interests of citizens and creators as spare change in the the fight between big content and big tech.

Today’s round has clearly gone to ‘big content’ in spite of warnings from pretty much anyone other than the rightsholders that this outcome will have disastrous consequences for the open Internet and our freedom of speech. Citizens’ freedom of expression should not be the function of an arrangement between rightsholders and big technology companies. It is a right that needs to be defended on its own merits and it is extremely worrisome that EU lawmakers have effectively decided to give big technology companies – that are based outside of the EU –  the responsibility to decide how European citizens can express themselves online.

We will continue to fight for the rights of users and creators and to oppose the censorship machine. The first step will be to convince enough MEPs that a decision to sell out citizens rights to big content and big tech merits a decision by the whole European Parliament:

Three things the European Parliament needs to do to #fixcopyright tomorrow

European Parliament (before the internet)
Tell your MEP to #fixcopyright tomorrow!
Licentie

Tomorrow the Legal Affairs Committee of the European Parliament (JURI) will finally vote on the proposed Copyright in the Digital Single Market proposal. The outcome of this vote will define the European Parliament’s negotiation position as it enters into trilogue negotiations with the European Commission and the Council. Although more than a thousand amendments have been proposed, it is clear that the European Parliament has missed the chance to demand a forward-looking copyright reform that empowers Internet users and creators and improves access to culture and information. With an eye on tomorrow’s votes, these are the three immediate challenges facing the members of the JURI committee:

#1 Save the Internet

For more than a year the discussion in the European Parliament has narrowed down on a number of key topics. The most attention has gone to those areas where the ideas introduced by the European Commission have the potential to break the open Internet and limit freedom of expression and  the free access to information. Both Articles 11 and 13 remain hotly contested to this very moment and it is important that you continue to tell the members of the JURI committee to Save Your Internet by voting against the compromise proposals proposed by the Rapporteur, Axel Voss, and support the alternative compromises proposed by the Greens instead.

#2 Expand user rights and protect the Public Domain

On a more positive note there are a number of issues where the JURI MEPs can make a positive difference. The Commission’s proposal was a huge disappointment with regard to empowering users and protecting the Public Domain but members of Parliament have worked hard to put proposals up for vote that would correct this. During tomorrow’s vote the JURI MEPs should vote for the alternative compromise amendments that would introduce Europe-wide exceptions allowing anyone to take and share pictures of artworks located in public spaces (the so-called freedom of panorama) and to use pre-existing works in remixes and other forms of “user generated content”. In addition, MEPs should vote in favor of the compromise amendments on articles 7-9 that strengthen the proposed mechanism that would allow cultural heritage institutions to make available out of commerce works. Lastly, the compromise amendment for article 5 contains a recognition of the principle that reproductions of works in the public domain should stay in the public domain.

#3 Fix the most glaring flaws of the Commission proposal

Finally, there are a number of issues where the Commission’s proposal was severely lacking and where the members of Parliament have not managed to put forward a response that fixes these flaws. As proposed by the European Commission, both the exception for Text and data Mining and the exception for education were at best mixed blessings and, unfortunately, the Parliament has not found a way to fully address their shortcomings.

The proposed optional exception for TDM that applies only if the right has not been reserved does not constitute more than a band-aid on the gaping wound caused by the Commission’s proposal for an limited exception (that, in effect, prevents anyone except researchers from engaging in Text and data mining). Given that there are no more substantial solutions on the table we still encourage MEPs to vote for the compromise amendments on articles 3 and 3a even though we are convinced that the only sensible option is to embrace “the right to read is the right to mine” approach.  

With regards to the education exception, the European Parliament’s compromise amendment fails to address the core shortcoming of the Commission’s proposal. The new mandatory exception should improve the very fragmented existing legal framework in the EU and benefit learners and educators alike. Unfortunately, the compromise amendment up for vote tomorrow leaves intact the licensing override that will negate the purpose of having a mandatory exception. We will continue to advocate for limiting reliance on licensing as a method to ensure access to educational materials. It has become clear from our own research that licenses do not benefit education. They impose burdensome obligations on schools and include unfair or even abusive terms.

Time is running out to tell the MEPs in JURI to act. Tell them to back stronger exceptions, safeguard the public domain and save the Internet via saveyourinternet.eu or changecopyright.org now!

SCCR/36: Communia statement on educational and research exceptions

Karikatuur van Franse censoren
Action plans have to bring evidence to the table
Licentie

In our capacity of permanent observers of the WIPO Standing Committee on Copyright and Related Rights, we have been attending the 36th session of the Committee, which is taking place in Geneva from 28 May to 1 June 2018.

The following is the statement made by Teresa Nobre on our behalf on agenda item 7 (Limitations and exceptions for educational and research institutions and for persons with other disabilities):

I’m speaking on behalf of COMMUNIA International Association on the Digital Public Domain.

We would like to start by thanking all the delegates for demonstrating their support for education throughout this SCCR. We would also like to thank the Chair for preparing the Draft Action Plan, and we have 2 suggestions to make regarding the planned actions.

The first is on the typology. We welcome the Chair’s proposal to synthesize, organise and classify the information contained in the study performed by Prof. Seng, and we would be pleased to offer our advice to the Chair in the development of the proposed typology.

At COMMUNIA we have been mapping educational exceptions for several years now, and we have created a template that breaks down the different provisions into their essential elements (users, uses, purposes, works, conditions and preclusions) and shows simple yes/no or 0/1 results, which permit a quick understanding of their differences and similarities. This template was recently updated, in collaboration with PIJIP, to reflect the different provisions analysed by Prof. Seng and could, therefore, be a good reference to the Chair.

The second suggestion regards the study on digital issues. We believe that such a study is only useful if it brings evidence regarding the gags, legal uncertainties and obstacles that may inhibit the development of digital education and research.

For that, the methodology has to go beyond policy and legal analysis. Interviews and surveys involving educators, learners and researchers are essential. Here are a few topics that we would suggest to be included in such study:

  • Digital actions carried out by the education and research communities on a regular basis;
  • Types of tools, devices and works used for educational and research purposes;
  • Restrictions encountered by these stakeholders in relation to different types of digital materials;
  • Mechanisms to ensure functioning of exceptions and limitations regarding TPM-protected works;
  • Obstacles and uncertainties faced by these stakeholders; and
  • Cross-border related problems encountered by these stakeholders.

Thank you.

SCCR/36: Communia general statement on limitations and exceptions

Anatomische les van professor Paaw
Public interests deserve the same international attention as private ones
Licentie

In our capacity of permanent observers of the WIPO Standing Committee on Copyright and Related Rights, we are attending the 36th session of the Committee, which is taking place in Geneva from 28 May to 1 June 2018.

The following is the general statement made by Teresa Nobre on our behalf on the issue of exceptions and limitations to copyright, which compose agenda itens 6 (Limitations and exceptions for libraries and archives) and 7 (Limitations and exceptions for educational and research institutions and for persons with other disabilities):

I’m speaking on behalf of COMMUNIA International Association on the Digital Public Domain.

The normative work of this Committee towards the grant of exclusive rights over copyrighted works and related subject matter has been exemplary. One would expect that users rights would have by now been subject to similar legislative efforts. However, the Member States that already benefit from sophisticated copyright exceptions and limitations, have been reluctant to make a convergence of laws, suggesting that the protection of public interests such as access to knowledge and education deserve less international attention that the protection of the private interests of copyright holders.

We recall that the European Union will soon adopt a mandatory exception for various uses, which will harmonize the laws of 28 European countries, despite their different traditions. This means that agreeing on minimum standards is possible, while still taking into account local specificities.

The reason why the EU is harmonizing national laws is very straightforward: the EU countries have such narrower exceptions that they are making illegal legitimate practices that take place on a daily basis, such as showing a Youtube video in class or emailing short copyrighted materials to students.

We are well aware that the industry claims that the needs of the global community of educators, learners and researchers can be solved through licensing. If that was the case, we would not be here, since there are currently no laws preventing parties from entering into licensing agreements.

The fact is that licenses are, first of all, expensive: 1/3 of European teachers surveyed by the European Commission said that they or their schools could not afford to buy educational licenses. Furthermore, we did a study on educational licenses in Europe and discovered that the current contractual practices are not commendable: licenses (i) restrict the scope of protection of exceptions, (ii) grant questionable rights to right holders, and (iii) impose burdensome obligations on schools.Without legislative intervention, fair educational and research activities that take place locally but also across borders will continue to be harmed.

Therefore, we urge this Committee to agree on action plans that are aimed at finding a model for a minimum harmonization in the field of exceptions and limitations to copyright.

Thank you.

SCCR/36: Communia statement on the protection of broadcasting organizations

WIPO SCCR 36
New rights should be accompanied by exceptions
Licentie

In our capacity of permanent observers of the WIPO Standing Committee on Copyright and Related Rights, we are attending the 36th session of the Committee, which is taking place in Geneva from 28 May to 1 June 2018.

The following is the statement made by Teresa Nobre on our behalf on agenda item 5: Protection of Broadcasting Organizations.

I’m speaking on behalf of COMMUNIA International Association on the Digital Public Domain.

We would like to urge this Committee to consider the interests of all relevant stakeholders, when working on agenda item 5.

The discussions on the protection of broadcasting organization have been revolving mainly around the private interests of such organizations and other beneficiaries of copyright.

We consider that the Committee should also engage in discussions aimed at ensuring the protection of the interests of users, namely the global community of educators, learners, researchers and librarians, and also the general Internet users that create user generated content.

Taking these public interests into account includes developing mandatory exceptions and limitations that protect legitimate practices, such as criticism, parody, uses for the purposes of teaching or scientific research, and uses by libraries and other culture heritage institutions. It also requires making clear that the exceptions for broadcasting rights are not less enabling for users than the exceptions that apply to copyright.

Furthermore, protecting users rights implies that the broadcasters are not given rights in works that are in the public domain, or that are openly licensed.

Finally, any treaty granting post fixation rights should foresee that the term of protection of those rights does not in any case extend beyond the term of copyright, in order to give legal certainty to users and to avoid deepening the already complex issue of accessing and using orphan works.  

We look forward to participating in further debates on these issues.

Thank you.