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

Nederlaag van de titanen
but you can still #SaveYourInternet
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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!
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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!

More and more experts warn of the dangers of Article 13 upload filters

EU vs the InternetLicentie

With the discussion of the EU copyright reform proposal in full swing (see #SaveYourInternet on twitter) ahead of next week’s vote in the European Parliament, more and more experts are coming out to warn about the negative consequences of Article 13 of the proposed directive.

On Tuesday this week a group of more than 70 people who have played important roles in building the internet and developing it into the vibrant cultural space that it is today came out with an open letter addressed to the members of the European Parliament. Tim Berners-Lee, Vincent Cerf, Mitchell Baker, Jimmy Wales and 70 others write:

As creators ourselves, we share the concern that there should be a fair distribution of revenues from the online use of copyright works, that benefits creators, publishers, and platforms alike.

But Article 13 is not the right way to achieve this. By requiring Internet platforms to perform automatic filtering all of the content that their users upload, Article 13 takes an unprecedented step towards the transformation of the Internet from an open platform for sharing and innovation, into a tool for the automated surveillance and control of its users. […] The damage that this may do to the free and open Internet as we know it is hard to predict, but in our opinions could be substantial.

This leads them to the same conclusion that we had arrived at in our analysis of Article 13. The most sensible way to deal with Article 13 is to delete it entirely:

We cannot support Article 13, which would mandate Internet platforms to embed an automated infrastructure for monitoring and censorship deep into their networks. For the sake of the Internet’s future, we urge you to vote for the deletion of this proposal.

On Wednesday David Kaye, the United Nations Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, followed up with a letter that raises similar concerns with Article 13. Specifically, Kaye is troubled that Article 13 “would establish a regime of active monitoring and prior censorship of user-generated content that is inconsistent with Article 19(3) of the International Covenant on Civil and Political Rights.” The opinion of the Special Rapporteur is an important voice from an organisation that does not have a direct stake in this discussion and should therefore be considered seriously by lawmakers. From the letter:

Article 13 of the proposed Directive appears likely to incentivize content-sharing providers to restrict at the point of upload user-generated content that is perfectly legitimate and lawful […] the restriction of user-generated content before its publication subjects users to restrictions on freedom of expression without prior judicial review of the legality, necessity and proportionality of such restrictions. Exacerbating these concerns is the reality that content filtering technologies are not equipped to perform context-sensitive interpretations of the valid scope of limitations and exceptions to copyright, such as fair comment or reporting, teaching, criticism, satire and parody.

As we have argued before it would be irresponsible of the Parliament to sell out the freedom of expression, education and access to culture and information to the business interests of the publishing and entertainment industries. By now it pretty clear than Article 13 is considered a real danger by pretty much anyone except the entertainment industry which concocted this legislative monstrosity. It’s high time for MEPs to recognize that they are being led into a direction that will do grave harm to freedom of expression, the digital economy in the EU, and the internet as a medium for vibrant cultural exchange.

To help, send your MEPs an email, tweet, or phone call before the June 20 JURI vote (as in RIGHT NOW!) and tell them to delete Article 13 once and for all.

Take action now and tell the European Parliament to #SaveYourInternet

European Parliament selling out user rightsLicentie

On 20 June, (8 days from now) the Legal Affairs committee of European Parliament (JURI) will finally vote on the proposed Copyright in the Digital Single Market directive. After more than one and a half years of discussions a lot is at stake in this vote. That is why we are joining forces with other civil society organisations from across Europe for the #SaveYourInternet action day. The purpose of this day is simple: we need to tell Members of the European Parliament that they cannot afford to sell out freedom of expression, education and access to culture and information to the business interests of the publishing and entertainment industries.

If you care about the open Internet and a world in which the interests of rightsholders are not privileged above education, research and access to culture, you need to act now. Get in touch with the Members of Parliament (MEPs) who will vote in these issues and let them know what you think. At www.saveyourinternet.eu you find a range of tools that make it easy to tweet at, mail or call them (of these three options calling is the most effective method).

Tell your MEP that you do object to the introduction of automated censorship filters that would cripple open internet platforms, that you find it unacceptable that press publishers get granted rights that they can use to limit access to online information and that Europe needs to embrace innovative technologies (such as text and data mining) instead of limiting them. Instead MEPs should stand for the interests of the citizens that they represent by demanding robust exceptions to copyright that unlock the power of the Internet for education and access to the collections of cultural heritage institutions.

With the Commission’s proposal for the DSM directive lacking in all these aspects, and the Member States having embraced the Commission’s approach, the European Parliament is our only hope of preventing this disastrous proposal from becoming reality. We have a week left to convince MEPs that they must not sacrifice the interests of users and creators across Europe to the business interests of publishers and entertainment companies. So head over towww.saveyourinternet.eu today (or use the form below) to make your voice heard!

104 Members of Parliament agree: It’s time to dump the #LinkTax

Karikatuur van Franse censoren
No unnecessary rights for press publishers!
Licentie

In an incredible show of political support for a more reasonable copyright law, today 104 members of the European Parliament sent a letter to Rapporteur Voss asking him to delete the harmful press publishers right—Article 11. The signatories include MEPs from across the political spectrum. Signatories of the letter state that:

While we support efforts to ensure a level playing field between online platforms and businesses through the enforcement of competition and consumer rules, we believe that the introduction of a new European neighbouring right will have a nocent and injurious effect on citizens’ access to quality news and information.

Ever since the Commission released its original proposal for a Directive on Copyright in the Digital Single Market, we’ve been arguing that introducing a new ancillary right for press publishers is a terrible idea. We’ve advocated that the press publishers right should be removed from the proposed directive. Not only is the mechanism ill-suited to address the challenges in supporting quality journalism, it would have the effect of decreasing competition and innovation in the delivery of news, limit access to information, and create widespread negative repercussions for related stakeholders.

As already shown by example in Germany and Spain, a press publishers right will be completely ineffective in promoting quality journalism or getting reporters and authors paid, and it will have massive negative repercussions on access to information for everyone online.

We are not alone. A variety of groups have long warned about the dangers of adopting the press publishers right, including 169 academics, 25 European research centres, 145 civil society organisations, 9 news agencies, and publishers themselves. Continue reading

SCCR/36: Communia statement on educational and research exceptions

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

Here is an alternative version of Article 13 that the European Parliament should support

Aanval van de Giganten op de godenwereld
Parliament must defend internet users' rights
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Last week we pointed out that when it comes to Article 13 both the version discussed (and since adopted) by the Member States in the Council and the compromise proposals discussed in the European Parliament’s JURI Committee are pretty terrible. In light of the negotiation mandate adopted by the Member States last week the only real option preventing mandatory censorship filters from becoming a reality for internet users in the EU is the European Parliament’s adoption of a position that renounces such filters, or (at the very least) ensures that any efforts to filter respect the fundamental rights of EU internet users.  

Unfortunately, the direction of the discussions in the JURI Committee clearly point toward an EP position that would support mandatory upload filters. In this situation, it is important to remember that for almost a year, the European Parliament has been sitting on an opinion from the Internal Market and Consumer Protection (IMCO) Committee that would limit the negative effects of Article 13. Since then, the text of the IMCO opinion, adopted on the 8th of June 2017 (!), has also been adopted by the Civil Liberties (LIBE) Committee.

Persuant to the European Parliament’s procedural rules, both LIBE and IMCO are associated committees. This means that their versions should form the basis of the discussions in the Legal Affairs Committee. Yet the difference between the current compromise proposed by MEP Voss and the IMCO/LIBE text could not be greater. This becomes evident when comparing the internal logic of the JURI/LIBE version (flowchart below) with a flowchart depicting the internal logic of the JURI version (see here):  

Continue reading

Member States adopt negotiation position, side with rightsholders in attack on user rights

Caïn venant de tuer son frère Abel, by Henry Vidal
Will Parliament step up to defend user rights?
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Last Friday the Committee of Permanent representatives of the Council (COREPER) agreed on a negotiating mandate for the proposed Copyright in the Digital Single Market directive. The agreed upon text does not substantially differ from the latest compromise proposals that we have discussed here before. Unfortunately that means that the Member States have agreed on text that fails to address the biggest shortcomings of the Commission’s proposal and in a number of cases actually makes it worse.

The result is a version of the Commission’s proposal that is even more out of balance than the original. The rights-holder lobby has managed to capture the Member States to advance their agenda to the detriment of the interests of internet users in the EU and in complete disregard of the original intention to further harmonise the fragmented EU copyright rules:

  • Over the past one and a half years the Member States, driven by a mediterranean maximalist coalition (France, Italy, Spain and Portugal) have doubled down on the Commission’s highly problematic proposal to impose upload filters for open internet platforms. As we have explained here, the version of Article 13 adopted by the Member States would create a new parallel liability regime that puts the creative expression of platform users at the mercy of a censorship machine run by platform operators in collusion with rightsholders.
  • Driven by the same mediterranean maximalist coalition the Member States have insisted on a narrow, innovation-hostile exception for Text and Data Mining. This approach flies in the face of the EU wide ambition to become an important player in the area of machine learning and artificial intelligence. At the insistence of more forward-looking Member States the Council text also includes an optional exception that allows TDM for a wider set of purposes and beneficiaries, but this comes at the cost of further splintering user rights in the EU.
  • Under intense pressure from Germany the Member States have maintained the introduction of a new ancillary copyright for press publishers against a near-universal academic consensus that such a right will endanger the freedom of information without benefitting press publishers. In a small improvement of the Commission’s proposal the new right would now last for a maximum of 2 years and would not apply retroactively.

There are a few areas where the Member States are proposing improvements to the Commission’s proposal (such as a more streamlined process that would allow cultural heritage institutions to make out-of-commerce works available online, and a new, albeit optional, paragraph providing a legal basis for extended collective licensing) but in general the Member States have missed the opportunity to fix the Commission’s flawed original proposal. Continue reading