The Estonian Presidency’s new (and optional) TDM exception: small potatoes

Man bekijkt een schilderij door een vergrootglas, Honoré Daumier, 1847
The reform needs major fixes, not minor tweaks
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Ahead of this week’s EU Council meetings of the Working Party on Intellectual Property (Copyright), the Austrian government has helpfully shared the Estonian Presidency’s revised compromise proposal on Articles 3 and 6 (including relevant recitals).

We’ve been following TDM with interest since the European Commission published its proposal on copyright in the Digital Single Market. Even though the Commission’s exception for TDM would be mandatory, we criticised their plan as not going far enough, as it would limit the beneficiaries of the exception only to research organisations, and only for purposes of scientific research.

The Estonian revisions leaves intact the Commission’s obligatory TDM exception that would apply to research organisations for purposes of scientific research. And, as expected, it continues to recommend that the beneficiaries originally contemplated by the Commission be expanded to include cultural heritage institutions. But the most significant change offered in this updated compromise proposal is an additional and optional exception in Article 3:

(5) Member States may provide for an exception or a limitation […] for temporary reproductions and extractions of works and other subject-matter that form an integral part of the process of text and data mining, provided that the works and other subject-matter are accessed lawfully and that the use of the works or other subject-matter for text and data mining is not expressly reserved by the rightholder.

This additional exception would apply to beneficiaries other than research organisations, and for uses other than scientific research. But those acts would be limited in that they only would cover temporary reproductions and extractions, and only if the rightsholder does not prohibit it. Continue reading

Educational Institutions in Europe advocate for a better copyright reform for education

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#fixcopyright for education
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There are many controversial things about current european copyright reform. We mainly hear about the fear of censorship of user-generated content or attempt to introduce something called ‘link tax’ to ensure press publishers right to control over the digital use of their content. But education? There are not many people, who will disagree that what Europe needs right now is a modern education system enhancing creativity, innovation and economic growth. Not to mention the importance of lifelong learning and the need of improving the quality and efficiency of education. Still repeated demand for digital skills and competences sounds like a cliche. You can find all of it well written down in EU documents and programs concerning education and training. So, there is one important question – why, when dealing with copyright issues, all these great ideas about the importance of education get forgotten?

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SCCR/35 Communia statement on limitations and exceptions for education

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In our capacity of permanent observers of the WIPO Standing Committee on Copyright and Related Rights, we are attending the 35th session of the Committee, which is taking place in Geneva from 13 to 17 November 2017.

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.

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Access to cultural heritage: Geoblocking or a Digital Single Market

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Geoblocking has no place on the Internet
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This is a slightly edited version of an analysis that was first published by Europeana on the Europeana Pro website

More than a year after the European Commission published its proposal for a Directive on Copyright in the Digital Single Market (DSM directive), the proposal continues to be discussed both in the Council and in the European Parliament. While the discussions in the European Parliament have recently slowed down to a crawl (the vote in the Legal Affairs committee is not expected before January), the discussions between the Member States in the Council are picking up steam: earlier this week, the Estonian Council presidency’s  consolidated compromise proposal was made public.

The compromise proposal contains an entire new chapter (chapter 1a – Measures to facilitate collective licensing’) that contains an a new article (art 9a – ’Collective licensing with an extended effect’). To anyone familiar with the Commission’s proposal (and the critical reception by cultural heritage institutions) this addition will appear somewhat odd as the Commission’s original proposal already relied on ’collective licensing with an extended effect’ as a mechanism that would allow cultural heritage Institutions to make out of commerce works (OOCW) from their collections available online.

So what exactly is going on here? Articles 7-9 of the Commission’s proposal are aimed at enabling the cross border use of out of commerce works. This would allow cultural heritage institutions to make such works from their collections available online so that they can be accessed from everywhere within the EU. While we think that relying on extended collective licensing alone will not be sufficient to achieve this objective for all sectors and all types of work, we are happy with the ambition to solve this problem on an EU wide basis.

A legal basis for Extended Collective Licensing

By contrast, the newly proposed article 9a focusses on (existing) national extended collective licensing arrangements and would not have any cross border effects. Instead, it introduces provisions into the EU legal framework that would remove the legal uncertainty that currently surrounds the extended collective licensing arrangements that exist in a number of (mainly nordic) EU Member States:

A functioning copyright framework that works for all parties requires the availability of proportionate, legal mechanisms for the licensing of works. Systems such as extended collective licensing or presumptions of representation are a well-established practice in several Member States and can provide such solutions, […] Given the increasing importance of the ability to offer flexible licensing solutions in the digital age, and the increasing use of such schemes in Member States, it is beneficial to further clarify in Union law the status of licensing mechanisms allowing collective management organisations to conclude licences, on a voluntary basis, irrespective of whether all rightholders have authorised the organisation to do so (Recital 28a + 29c of the Estonian Compromise proposal)

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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

The European Parliament should be talking about DRM, right now!

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Anti-circumvention laws have to be fixed!
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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)

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New Estonian council compromise proposal: Another missed opportunity for TDM in Europe

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The right to read must be the right to mine!
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The Council of the European Union, currently led by the Estonian Presidency, has published an updated compromise proposal regarding Articles 2 to 9 of the Commission’s draft directive on copyright. The Estonian proposal will be discussed among the Member States next week at the meeting of the Copyright working party.

The minor tweaks to the exception for text and data mining offered in this recent draft—as well as the earlier changes suggested in the Maltese compromise proposal from 8 May —are inadequate to supporting research and innovation in the European digital single market.

Where the Commission’s original plan only permits “research organisations” to take advantage of the exception, the new Council’s compromise proposal would extend the beneficiaries to include “cultural heritage institutions.” At first glance this addition would seem welcome because it expands (albeit narrowly) to an additional beneficiary group. But this meager edit ignores the larger concern that citizens and  private sector organisations still will be excluded from the benefits of the exception. As we’ve argued, this is clearly not aligned with the goals of the reform to promote activity in the digital single market.

In addition, the Council compromise proposals do not change the problematic limitation that TDM may only be carried out strictly for “purposes of scientific research.” We’ve criticized the Commission’s short-sighted approach in only permitting TDM to apply to scientific research. Such a restraint will surely decrease the potential impact of novel TDM uses, such as for journalism-related investigations, market research, or other types of activities not strictly considered “scientific research”. Continue reading

Leading Academics: Article 13 is incompatible with EU law and must be deleted

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There is no place for upload filters in EU law!
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Last week (the same day that we published an updated version of our position paper on article 13) our friends at copybuzz pointed to a paper by The Max Planck Institute for Innovation and Competition on article 13, published in response to a set of questions raised by six EU member states over the summer. As we have reported here, the questions related to the relationship between the measures proposed in article 13 and recital 38 of the Commission’s proposal and the existing EU legal framework (the E-Commerce Directive, the InfoSoc Directive and the Charter of Fundamental Rights of the EU).

The questions posed by the member states already implied that article 13 and recital 38 would violate a number of legal concepts established by existing legislation. The answers provided by the Max Planck Institute confirm this. As the paper, authored by Prof. Dr. Reto Hilty and Dr. Valentina Moscon points out, there are serious problems with all 4 aspects of the proposal that have given rise to the member state’s queries. Based on their analysis the Hilty and Moscon come to the same conclusion as we did in our own position paper:

Therefore, it is inadvisable to adopt Article 13 of the proposed Directive and its respective Recitals, 38 and 39. (page 2)

This opinion is based on an analysis that finds that the Commission’s proposal would create legal uncertainty, would risk conflicting with the user rights (exceptions and limitations) granted by the InfoSoc Directive, would be inconsistent with the E-Commerce Directive, and could enable abusive behaviour that threatens fundamental human rights, such as the freedom of expression and information.

A scathing takedown of the Commission’s Proposal

All in all, the responses to the questions posed by the six member states read as a scathing takedown of the Commission’s Proposal. Continue reading

Updated position paper: Article 13 remains a terrible idea and needs to be deleted

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Article 13 is an attack on the open internet
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Today we are publishing an updated version of our position paper on Article 13 of the European Commission’s proposal for a directive on Copyright in the Digital Single Market. Since we have published our original position paper in January of this year, Article 13 has generated an enormous amount of discussion and has emerged as the most contested part of the Commission’s proposal. The discussions within the parliament and among the Member States are still ongoing and so far there is no clear indication where these talks will end.

In the updated policy paper we re-iterate our concerns (a few of them have recently been taken up by a group of Member States in a set of questions to the legal services of the Council), analyse proposals for amending the Commission’s proposal that have been adopted in the European Parliament, and provide a set of recommendations. Our key recommendation remains to delete article 13 from the proposal as it addresses a problem that lacks empirical evidence confirming its existence. Article 13, as drafted by the Commission, would limit the freedom of expression of online users and create legal uncertainty that has the potential to undermine the entire EU online economy. As such it is unworthy of being included in a Directive proposal that is intended to modernize the aging EU copyright framework.

Read the updated position paper below. If you are familiar with the issues at hand and/or the previous version you may want to jump straight to the updated part.

Position paper: EU copyright should protect users’ rights and prevent content filtering

Article 13 of the European Commission’s proposal for a Directive on Copyright in the Digital Single Market attempts to address the alleged disparity in revenues generated by rightsholders and platforms from online uses of protected content (the so called “value gap”). The proposed article attempts to do this by introducing an obligation for “Information society service providers that store and provide to the public access to large amounts of works” to filter user uploads. It would also require these providers to set up licensing agreements with rightsholders.

These proposed measures are highly problematic as they violate fundamental rights of users, contradict the rules established by the E-Commerce Directive, and go against CJEU case law. The measures proposed in the Commission’s proposal stem from an unbalanced vision of copyright as an issue between rightsholders and infringers. The proposal chooses to ignore limitations and exceptions to copyright, fundamental freedoms, and existing users’ practices. In addition, the proposal fails to establish clear rules with regard to how citizens can use protected works in transformative ways—such as remixes and other forms of so-called “user-generated content” (UGC). As a result, a system of this kind would greatly restrict the way Europeans create, share, and communicate online. Continue reading

CULT Committee wants educators to pay for content that they now use for free

The corn vendor who does not ask for money
CULT final opinion spells disaster for education
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(With Teresa Nobre).

Last week, the Committee on Culture and Education (CULT) of the European Parliament voted on its final opinion concerning the Commission’s Directive on Copyright in the Digital Single Market. Copyright law in the shape proposed by the CULT MEPs would spell disaster for educators and educational institutions across Europe.

This post aims to provide educators with an overview of the changes to the draft Directive proposed by rapporteur Marc Joulaud, a French MEP from the EPP group, and then through amendments by the members of CULT. We start with an analysis of two clashing logics visible in the CULT debate, followed by an overview of key decisions made during the vote. We finish with advice on next steps in the ongoing fight to secure an educational exception that meets the needs of educators.

If you want to learn more, we have been covering the policy process from the start, with a focus on how the new law will affect educators.

Copyright and education: two clashing views

There are two clashing viewpoints in the ongoing debate on the new educational exception, and each represents a different approach for how to achieve the goals defined by the Commission in its Communication on the DSM strategy and subsequent Directive. These goals include “facilitating new uses in the fields of research and education” and providing a “modernised framework for exceptions and limitations”—which will result in a situation where “teachers and students will be able to take full advantage of digital technologies at all levels of education”.Continue reading