Proposed Council compromise on TDM: still not good enough

De zanderij
The right to read must be the right to mine!
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We’ve already written about how the Bulgarian compromise proposal for both Article 13 and Article 11 are too broken to fix. Their proposal for Article 3 (Text and Data Mining) does little to alter the major problems standing in the way of a progressive exception for text and data mining.

We’ve continued to follow Article 3 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.

TDM in the Bulgarian presidency proposal

The Bulgarian proposal is nearly identical to the changes already offered by the earlier Estonian plan. It leaves intact the Commission’s obligatory TDM exception that would apply to research organisations (including cultural heritage institutions) for purposes of scientific research. The Bulgarian proposal similarly introduces an additional and optional exception in Article 3 for temporary reproductions and extractions. 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.

In our earlier blog post we wondered whether the existing (and mandatory) exception in the InfoSoc and Database Directives on temporary reproductions arguably already covers the temporary reproductions for text and data mining purposes. In any case, this additional and merely optional exception, for acts that might already be covered under existing law, which can easily be neutralised if rights holders don’t want it, is a weak compromise. It doesn’t address the main concerns we’ve had with Article 3 since the beginning. It also fails to bring much needed harmonization and will instead further the already existing fragmentation of users rights in EU. Continue reading

MEP Voss doubles down on worst elements of Article 11

Karikatuur van Franse censoren
New right threatens free access to information
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We just got done criticising how Bulgaria’s weak consolidated presidency compromise handles Article 11 of the proposed Copyright in the Digital Single Market (DSM) directive. The Bulgarian plan doubles down on the Commission’s original bad idea and ignores most of the positive protections offered by some members of parliament.

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”.

Mandatory remuneration

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

This is not how you make copyright reform! Report from the Copyright Action Days

Last week more than a hundred of copyright reform activists got together in Brussels for the the European Copyright Action Days to make it clear to EU lawmakers that the copyright reform effort that is currently being discussed in the European Parliament and the European Council is not good enough. In a series of events organized by Copyright 4 Creativity, Create.Refresh, Communia and others, activists and other stakeholders discussed the shortcomings of the current reform proposal as well as ideas for a more future-proof overhaul of the outdated EU copyright system.

As part of the Copyright Action Days we organized a a roundtable on the future of education in the European Parliament, our first ever COMMUNIA Salon on the future of copyright in the Museum of Natural Sciences and two workshops for copyright reform activists.

Video documentation by Sebastiaan ter Burg.

Roundtable on the future of education

The roundtable on the the future of education hosted by Dutch MEP Marietje Schaake was a full room event at the European Parliament, with over 40 policymakers and stakeholders attending. We discussed the intersection of educational policy, technology, copyright reform and open licensing policies. Irish school teacher Leanne Lynch talked about the use of technology, social media platforms and digital copyrighted materials in the classroom. Mitja Jermol – UNESCO Chair on Open Technologies for Open Educational Resources and Open Education – talked about how new technologies can support educational goals. Andreia Inamorato dos Santos from EC’s Institute for Prospective Technology Studies  presented results of their latest report on open education policies in Europe. Finally, Damjan Harisch from the Slovenian Ministry of Education and Maja Bogataj Jančič, Director of the Slovenian Intellectual Property Institute, presented the position of Slovenian Ministry of Education on the copyright reform  During the event, Teresa Nobre also presented our latest research on licences for educational uses. We are happy that we had the opportunity to exchange views on the matter with representatives of publishers and CMOs.

The Future of Technology in Education roundtable
The Future of Technology in Education roundtable, photo by Sebastiaan ter Burg. More photos here.

COMMUNIA salon

The COMMUNIA salon in the Museum of Natural Sciences brought together more than 70 activists, academics and policy makers to discuss challenges on the intersection of creativity, value creation and copyright in the online environment. Under the title “Copyright for the future” the discussions attempted to draw up a perspective that looks beyond the current legislative proposal. Continue reading

Article 13: still too broken to fix

Aanval van de Giganten op de godenwereld
Article 13 is an attack on open online platforms
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As we are heading into the final phases of the discussion on article 13 in both the European Parliament and the Council the issue that article 13 has the potential to do substantial damage to the European digital economy is getting more attention from lawmakers. So far the answer to this problem by the proponents of Article 13 is to exempt more and more types of online platforms from the filtering and or licensing requirements established by Article 13. By now the list of services to be excluded contains “Non-for profit online encyclopaedia“, “educational or scientific repositories, where the content is uploaded by the rightholder“, “providers of cloud services for individual use which do not provide access to the public“, “online market places whose main activity is online retail of physical goods” (European Parliament draft), “non-for-profit open source software developing platforms” and “internet access service providers” (Council compromise proposal).

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

Our study “Educational Licences in Europe” is out now

Strafpleiters
Licence priority sounds even worse now
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The European Union is coming closer to approving a mandatory educational exception that may address some of the limitations copyright law places on everyday educational activities. However, the current proposal for a Directive on Copyright in the Digital Single Market would allow licences that are easily available in the market to take precedence over the educational exception.

Our new report “Educational Licences in Europe“, covering the analysis of 10 agreements in Finland, France, and the United Kingdom, shows that educational licences contain terms and conditions disadvantageous to schools:Continue reading

Join us for the European Copyright Action Days 19-21 march in Brussels

Banquet at the Crossbowmen’s Guild in Celebration of the Treaty of Münster
Join us in Brussels to #fixcopyright
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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

MEP Voss sells out freedom of expression, doubles down on protecting Big Content

Cadmus doodt de draak
The fight for keeping the internet open is on!
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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

New study: ever more complex copyright is holding back creators

Creative Jail
Copyright must not become a creative jail
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One of the biggest shortcomings of the discussion on copyright is that most of it seems stuck in a fairly outdated creators vs users dichotomy. Copyright laws around the world are generally structured in such a way that they grant exclusive rights to creators and try to balance these with a limited set of rights for users (in the form of exceptions or limitations to copyright). Based on this design it is widely assumed that more (or stronger) exclusive rights benefit creators and that more (or broader) exceptions to copyright benefit users.

This conception is problematic on a number of levels. For one it is clear that creators benefit from user rights that ensure that users have a basic level of access to culture through educational systems and via public institutions such as museums and libraries. On the other hand users benefit from the exclusive rights granted to creators as they incentivise the very production of culture and knowledge that they want to access.

A more fundamental challenge to this general understanding of copyright is posed by the fact that the roles of users and creators are not mutually exclusive,  but overlapping. Many creators are also users of copyrighted materials and the other way around. The technological development of the past two decades has contributed to this blurring of the boundaries between creators and users. Digital technologies greatly facilitate both the creative re-use of existing works and the distribution of the resulting new works. This development has resulted in the emergence of the (somewhat nonsensical) category of “user generated content” and concepts like the “prosumer“.

These concepts deal with users becoming creators, and there are relatively straightforward answers to the challenges posed, such as the need to introduce an exception for user generated content in the EU copyright framework that we have been advocating for. But there is another more interesting side of the coin: creators becoming users. While it is true that creators have always appropriated the works of those authors who came before them, these dynamics have been turbocharged by the digital revolution. Creators have entire libraries of content at their fingertips, and the tools to manipulate, incorporate and build on existing works are becoming increasingly sophisticated. These are exciting times to be a creator, but this new reality also brings creators into contact with the limitations to their creative freedom imposed by copyright law. Continue reading

Licenses: we are past copyright

The finish in the great match race [...] at Sheepshead Bay, N.Y., June 25th, 1890 between Salvator and Tenny / L.M.
Copyright exceptions should win this race
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We have been arguing for quite sometime now that handing out the power to define the scope of users rights to right holders – in the form of license agreements that they can (almost unilateral) draft and frame as they wish – is bad. Really bad: licenses fragment the legal framework that mandatory exceptions try to harmonize; licenses contain abusive terms or impose obligations on users that are not foreseen in the laws; and licenses have a huge impact on national budgets.

Unfortunately, this message has not come through to all, or not everyone understands what we are saying, or worse right holders have done a nice job in convincing lawmakers that’s the right way to go.

Allowing licenses to override exceptions is the only treat that publishers want

The current copyright reform carried the promise of being a landmark in the history of the EU copyright law. Lawmakers would finally show they understand that copyright is not superior to any of the other fundamental rights that every constitutional law across Europe grants to their citizens, and would make things right. Sadly, however, the prospects of that being the case for education are now very low.

MEPs passed the last year negotiating the scope of the educational exception. On the one hand, those who side with schools, teachers and students, proposed amendments to eliminate some of the constraints that the educational exception contains. On the other hand, those who side with publishers have been pushing for more restrictions, in order to narrow down the scope of the proposed exception even further.

Not enough MEPs understood that the most problematic aspect of art. 4 is not the scope of the mandatory exception (n.º 1) but the fact that Member States may choose not to apply such mandatory exception if licenses covering those uses are easily available in the market (n.º 2).

It is our understanding that publishers could not care less about the scope of the educational exception, provided that they can rule out the application of said exception with their own license agreements. This is copyright “taking the back seat”, as Professor Niva Elkin-Koren would put it.Continue reading

Open Letter challenges Portuguese Government’s position on art. 13

Today, a group of Portuguese organizations, including an important innovation acceleration hub, software companies, free culture and users rights advocates, and the Portuguese association of librarians, archivists and documentalists, sent an open letter to the Portuguese Government asking to the Government to reconsider its position in relation to art. 13 (the proposal to require online platforms to filter all uploads by their users).

As we have noted before, Portugal is, along with France and Spain, one of the countries that supports the Commission’s plan to force online platforms to install upload filters that would prevent any uses of copyright protected not explicitly approved by rightsholders. Portugal has also been pushing forward amendments proposed by the French Government that would significantly change the way online platforms operate. Under the rules proposed by the French, operating open platforms would only be possible with permission from rights holders.

Portugal can still make it right!

The signatories of the letter acknowledge the negative impact that such proposals would have on the fundamental rights of the Portuguese citizens and on the booming Portuguese ecosystem of startups and entrepreneurs, which is as important to the Portuguese economy as the tourism industry. They, thus, ask to the Portuguese Government to depart from its initial position, which privileges the interests of a small class of commercial copyright holders, and to embrace the future of digital innovation instead.

This open letter is yet another reminder that copyright policy cannot be based on the interests of commercial rightsholders alone and a reminder that it is important to challenge the positions of national governments on this important issue (see this helpful overview by MEP Julia Reda for other governments that need to be reminded that we need copyright rules that embrace the future instead of the past).