(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
Tomorrow the Members of the Culture and Education Committee of the European Parliament (CULT) will vote on their position on the proposal on Copyright in the Digital Single Market directive. This will be the second vote in the European parliament after last month’s vote in the IMCO committee. While the CULT committee is nominally responsible for Culture and Education it seems rather likely that tomorrow’s vote will result in an one sided opinion that would support the key elements of the flawed directive, making them worse in many areas. Below is a quick rundown of what is on the table during tomorrow’s vote. We have listed voting recommendations for CULT MEPs interested in enacting real copyright reform that will foster Europe’s cultural and educational sectors:
Expand the scope of the text and data mining exception
We have argued many times that Text and Data mining should not be covered by copyright at all. A TDM exception such as the one proposed by the Commission would then be unnecessary. Any TDM exceptions enacted in spite of this would need to be as broad as possible both in terms of beneficiaries and in terms of purpose. Unfortunately the compromise amendment on the issue does nothing to broaden the scope of the proposed exception and merely reaffirms the Commission’s backwards looking proposal. MEPs should reject the compromise amendment and vote for AMs 337, 356, 360, 362 and 364 Instead.
Broaden the education exception to fit the needs of education in the 21st century
On the proposed education exception the Culture and Education committee seems intent to abandon the needs of 21st century educators. Instead of improving the Commission’s half-baked proposal, the compromise amendment reaffirms or worsens the most problematic elements of the proposal: Continue reading
As reported last week, the voting of the Internal Market Committee on the Draft Opinion on the proposed DSM Directive was full of plot twists, but none related to the issue of education. The Committee adopted its compromise amendment to article 4 and it was applauded by many, since this amendment offers a better solution to the obstacles faced by educators and learners across Europe than the Commission’s proposal. Yet, the educational exception resulting from this compromise is still not suitable to the modern needs of educators and learners across Europe.
Giving preference to new licenses is always a bad idea
The IMCO amended article 4(2) in order to give precedence only to extended collective licensing (ECL) schemes. This shows appreciation of the weak position of educational institutions to negotiate individual licenses, and thus represents a progress in relation to the Commission’s proposal. However, it’s not enough to guarantee that the new exception will not simply be replaced by ECL schemes all over Europe.
The ECL schemes have been in existence in the Nordic countries for a long time now, and there’s a general understanding that they have to be protected in those countries. We cannot overemphasize the fact that the term “limitation” in article 4(1) encompasses compulsory or statutory licenses. On the other hand, works of authors that opt out from voluntary licenses will fall under the exception anyway. In other words, maintaining article 4(2) is not that relevant.
What policy makers that want to protect the public interest related to education should worry about is that ECL may be exported to countries with no tradition whatsoever of implementing such schemes. These are also countries which currently do not foresee any compensation for most or all of the uses made under their educational exceptions. They might be forced to introduced compensation, based on the proposed law.Continue reading
Now that the EU Parliament committees have introduced their amendments to the Commission’s Directive on Copyright in the Digital Single Market, it’s useful to take a look back at the evolving nature of various aspects of the reform. This week we’ll review the copyright exception for text and data mining. Text and data mining (TDM) enables mechanical analysis of huge amounts of text or data, and has the potential to unlock interesting connections between textual and other types of content. Understanding these new connections can enable new research capabilities that result in novel technological discoveries, critical scientific breakthroughs, journalistic endeavors, and new business analytics opportunities.
The Commission first asked about text and data mining in its 2013 public consultation on the review of the EU copyright rules, and Communia responded to the call for feedback. We argued that text and data mining should be considered as an extension of the right to read—that mining texts and data for facts is an activity that is not and should not be protected by copyright. We noted that TDM should not be addressed through contractual-, license-, or fee-based approaches, and urged that technical protections measures should not prevent users from engaging in text and data mining activities. We argued for legal clarity in our 2015 policy paper on the the review of the EU copyright law: “the development of clear rules for researchers who must be able to read and analyse all information that is available to them, whether through text and data mining or otherwise.”
The Commission’s Crippled Proposal
In September 2016 the European Commission released its copyright reform directive. For the most part it lacked a progressive vision, adequate protections for the public interest, and workable solutions to promote the European digital single market. This characterization is equally applicable to how the Commission handled text and data mining. In our response to the directive, we noted that it’s good that the Commission recognized that researchers encounter legal uncertainty about whether—and how—they may engage in text and data mining, and are concerned that publishers’ contractual agreements may exclude TDM activities. So, in this respect it’s positive that the Commission introduced a mandatory exception to copyright for text and data mining that would forbid contractual restrictions or terms of service from interfering with the right to exercise the exception.
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).
For several months now, we have been arguing that ‘the devil is in the detail’ when it comes to the Commission’s education proposal. MEP Therese Comodini Cachia draft amendments to the proposed exception for digital and cross-border teaching activities, while introducing some improvements, do not meet the educational community expectations to see a better copyright reform. And, worst still, they represent a serious step back in relation to the existing EU acquis in the area of educational exceptions.
The licensing fight continues
We appreciate MEP Comodini efforts to mitigate the negative impact of article 4(2), which allows Member States to give precedence to licenses over the proposed exception. However, we believe she misses the opportunity of getting rid of the Commission’s infamous proposal, while still protecting the extended collective licensing (ECL) schemes that exist in the Nordic countries.
Under the Commission’s proposal, any licensing offer could rule out the application of the education exception, thus negating much of the substance and effectiveness of the exception. MEP Comodini seems to recognize that many educational institutions would be ill-placed to negotiate license terms or would be forced to accept the terms dictated by the licensor, and thus introduced some substantial changes to article 4(2). Under Ms. Comodini’s proposal, the unilateral and discretionary offer of the rightholder to conclude a licensing agreement is not sufficient to deny the educational establishment concerned the right to benefit from the educational exception. An existing contractual relation is needed to override the exception.Continue reading
MEP Therese Comodini Cachia, Rapporteur for the European Parliament’s influential Committee on Legal Affairs (JURI), finally released the official version of its already-leaked draft opinion on the Commission’s Directive on Copyright in the Digital Single Market.
As we explained yesterday, Comodini’s draft misses the opportunity to introduce more forward-looking provisions that would strengthen the position of users such as a much-needed exception for user-generated content and freedom of panorama. At the same time, there are positive amendments, including the removal of the ill-advised ancillary right for press publishers.
The JURI draft amendments are quite positive with regard to the exception for text and data mining. The Commission’s original proposal limited the beneficiaries of the text and data mining exception only to research organisations, and only for purposes of scientific research. Comodini’s amendments would expand the TDM exception to apply to anyone for any purpose. In addition, it would mandate that publishers provide a mechanism for users who otherwise do not have legal access to the corpus of works to be able to engage in TDM on the publisher’s content, possibly after paying a fee to those publishers. Finally, the amendment would direct Member States to setup a secure facility to ensure accessibility and verifiability of research made possible through TDM.
Today, MEP Therese Comodini Cachia, the European Parliament’s main rapporteur for the proposed copyright in the Digital Single Market directive published her draft of the JURI report (pdf) on the Commission’s proposal. In line with the initial reactions from the rapporteurs from the Culture and Education (CULT), Internal Market and Consumer Protection (IMCO), and Industry Research and Energy (ITRE) committees Ms. Comoidini’s report points out substantial flaws in the Commission’s unbalanced and backward-looking proposal.
Unlike her colleagues from CULT and IMCO Comodini has limited her report to fixing flaws in the provisions proposed by the Commission. While such fixes are important, this means that her draft report constitutes a missed opportunity to introduce more forward-looking provisions that would strengthen the position of users such as much-needed exceptions providing legal certainty for user generated content and ensuring freedom of panorama in all of the EU.
Below we provide a brief overview of the changes to the Commission’s proposal that Ms. Comodini proposes in her draft report. We will follow-up over the next few days with more in- depth analysis of individual issues.
R.I.P ancillary right for press publishers
Her most straightforward intervention is to delete the Commission’s proposal for a new neighboring rights for press publishers. In line with what we and many others had proposed she instead proposes to solve the enforcement problems of press publishers by improving their ability to act against infringing uses of works published by them:
Member States shall provide publishers of press publications with a presumption of representation of authors of literary works contained in those publications and the legal capacity to sue in their own name when defending the rights of such authors for the digital use of their press publications. (AM 52)
Last week the Committee on the Internal Market and Consumer Protection (IMCO) released a draft opinion on the proposed Directive on Copyright in the Digital Single Market. It’s not bad. Rapporteur Stihler’s opinion makes it clear that the European Commission’s proposal is seriously flawed and requires substantial changes. It contains proposals for amendments that address many of the issues with the original proposal. This week we’ve written more extensively on these, including the suggestion to drop the ancillary copyright for press publishers, the broadening of the TDM exception to permit mining by anyone for any purpose, a potential fix to the content upload filtering mechanism, and the continued problematic reliance on licensing within the exception for educational purposes.
We are pleased that just as in the draft CULT opinion, IMCO acknowledges the importance of protecting and strengthening user rights. Rapporteur Stihler’s broad scope is especially important, as it would permit a person “to use an existing work or other subject matter in the creation of a new work or other subject-matter, and use new work or other subject matter”. In other words, it doesn’t matter what a user needs the protected content for, he or she may just use it as long as they create something new with it. For reference, CULT’s draft opinion proposed a UGC exception to apply primarily when it serves criticism, illustration, parody, etc.
We welcome the positive sound that MEP Stihler’s draft opinion for the Committee on the Internal Market and Consumer Protection (IMCO) brings to the copyright debate. She proposes to broaden the TDM exception to a level of ‘right to right is the right to mine’, hears the clear call from the cultural heritage institutions to fulfill their public task of providing (online) access to culture, and proposes to delete the unsubstantiated article 11 of the proposed directive on copyright in the Digital Single Market.
For education, the Scottish MEP has aims that strongly resonate with us, as she noted in her introduction:
Also, in the field of the use of works and other subject matter in teaching activities (Article 4), the Rapporteur believes that the exception should benefit not only all formal educational establishments in primary, secondary, vocational and higher education, but also other organisations such as libraries and other cultural heritage institutions, providing non-formal or informal education. The Rapporteur believes that the best solution is to have a single and mandatory exception for all types of teaching, both digital and non-digital, formal and informal.
These are more-or-less the same points we make in our position paper on the draft directive. In it, we argue that ‘the devil is in the detail’. The analysis of MEP Stihler’s proposed amendments appears to require the same title. While we can do less than fully applaud her aims, there is some serious room for improvement in the actual proposed text. We appreciate amendments that strengthen the exception, but note at the same time that even the best exception will be broken if licensing solutions are favored by the legislator. Continue reading