Ahead of last trilogue: on balance the directive is bad for users and creators in Europe

Internet is for the peopleLicentie

Today we are launching a new minisite called “Internet is for the people” that provides an overall assessment of the Directive on Copyright in the Digital Single Market. Our assessment takes into consideration all the key parts of the Directive.

Our aim, with this project, is to present how the Directive  will either empower or hurt users and creators in the digital age. The rules that regulate creativity and sharing must be fair and take into account contemporary online activities and digital practices. Essentially, the internet needs to be for the people, and key legislation needs to be based on this principle.

In order to do this, we analysed nine different issues that are included (or have not been included) in the proposal for the Directive: Upload Filters, the Press Publishers Right, Text and Data mining, access to Cultural Heritage, Education, the protection of the Public Domain, a Right to Remix, Freedom of Panorama and Fair Remuneration for Authors and Performers. Each issue was then scored, allowing us to provide an overall score of the Directive based on an understanding of all elements of the proposal.

Too often, the Directive is reduced just to a few controversial issues: content filtering or a new right for publishers. These are clearly crucial issues, but it is important to understand that the Directive includes other rules that can also have massive effects on Europe’s research and science, education, cultural, or AI industry–just to name a few.

We decided to analyse the Directive through a particular lens: of the potential to either empower or hurt users and creators in the digital age. We are critical of views that the Directive simply attempts to regulate business relationships between two sectors, and that therefore the policy debate should be left to them. The Directive will have tremendous impact on all European citizens, who depend in all aspects of their lives on communication systems and digital tools that copyright law regulates.

The internet needs to be for the people. This means that core policies, like copyright law, need to be “for the people” by design. As our analysis shows, the final proposal for the Directive will likely be a legislative mixed bag. A range of positive developments concerning exceptions and limitations – rules that grant people the freedoms to use content for personal needs or public interest goals – are offered alongside other regulatory proposals that will have extremely adverse effects across all spheres of European society.

On Monday policy makers will have one more chance to fix some of the shortcomings of the proposed directive. Based on the current state of affairs it seems extremely unlikely that this will fundamentally alter the our negative overall assessment of the directive: Seen as a whole, the proposed Directive is bad, and will not make the internet work for European citizens.

Copyright reform still stalled, but there is some good news for the Public Domain

Wijsheid blijft langer dan schoonheid
some light in the shadows of the big controversy
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After last weeks inconclusive “final” trilogue, the discussions about the EU copyright reform package are paused for their third (!!) winter break. When they resume in January under the Romanian EU presidency the negotiators will be under a lot of pressure to find a politically viable compromise on Articles 13 and 11 and a few other controversial parts of the proposal. In the shadow of these more controversial elements of the proposal the negotiators have managed to provisionally agree on a large number of other issues and among these there are a number of positive developments.

From our perspective the most positive development is the fact that based on an amendment proposed by the European Parliament, the negotiators have provisionally agreed to include a Public Domain clause in Article 5 of the Directive. This clause intended to ensure that reproductions of works in the public domain can no longer be protected by copyright or neighbouring rights (as it is currently the case in a number of EU member states such as Germany and Spain). This is not only welcome because it would solve a real problem or because it would turn one of the recommendations of our Public Domain Manifesto into law, but also because it will be the first ever mention of Public Domain in EU copyright framework! Continue reading

EU copyright reform grinds into trilogue negotiations

Oordeel van Salomo
Secret judgment of EU copyright reform
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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.

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MEPs Can Still Salvage the Copyright Directive in Today’s Vote

European Parliament (before the internet)
Seven issues where MEPs can #fixcopyright
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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.

New policy paper on the 2017 review of PSI Directive

1200px-PSM_V43_D075_Chemical_laboratory
chance to improve reuse in Europe
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Today COMMUNIA published a policy paper on the 2017 review of the Directive on Public Sector Information (PSI Directive). The Directive first came into effect in 2003, and was amended in 2013 to clarify that 1) PSI should be presumed to be “reusable by default,” 2) museums, archives, and libraries were subject to the Directive provision, 3) acquisition fees were limited to marginal costs of reproduction, and 4) documents were to be made available for reuse using open standards and machine readable formats.

The Commission’s 2017 review could lead to further changes to improve reuse of public sector information. We made several recommendations to strengthen access and reuse of PSI.

First, we recommend that scientific research results resulting from public funding should be made available under a permissive reuse rights regime as PSI. The Commission should ensure that policy efforts to improve access to publicly funded scientific research are complementary—and not in conflict with—each other.

Second, we suggest that a revised Directive should ensure that all documents that are not currently covered by third party intellectual property rights fall within the scope of PSI national legislations.

Third, we recommend the Commission codify their earlier guidelines on recommended standard licences for PSI, and also ensure accurate licensing metadata across PSI and open data portals that reflects these licensing options.

Finally, we suggest that a revised Directive should ensure that CHIs and public sector bodies that are alike in their aims and funding structure must only be permitted to charge fees for costs directly incurred in providing access. We emphasise the importance of suitable state funding for CHI which will also enable them to make as many resources reusable as possible.

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Mercosur-EU Free Trade Agreement: a bad deal for the public domain

Handel en koopvaardij
Stop the secret erosion of the Public Domain
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Contrary to what the negotiating parties expected (and what many civil societies organizations feared), the Mercosur-EU Free Trade Agreement (FTA) was not signed during the World Trade Organization (WTO) Ministerial Conference that took place at the beginning of December in Buenos Aires. Thus, the signing of the FTA that has been negotiated for almost twenty years was postponed once again. Over this time the negotiations were frozen during the era of the leftist governments in South America, but regained speed after the arrival of neoliberal governments to Brazil and Argentina.

Like many other multilateral agreements that have been negotiated in recent years (TPP, TTIP, etc.), the Mercosur-EU FTA covers a large number of areas (not all strictly related to trade) ranging from the exchange of goods to capital movements, phytosanitary measures, electronic commerce and intellectual property (IP). The area of ​​negotiation related to IP is extremely broad, including patents, trademarks, geographical indications and copyright, among other topics.

From TRIPS to TRIPS Plus

In most of the issues related to IP, the Mercosur-EU FTA goes beyond the international obligations imposed on the countries in 1994 with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in the context of the creation of the World Trade Organization. TRIPS established a minimum regulatory floor on IP that forced a large number of countries, including those of the Mercosur, to modify their laws, establishing restrictions on the circulation of knowledge and negatively affecting the public domain. In the field of copyright, TRIPS established a minimum copyright term of the author’s life plus 50 years, meaning that countries like Uruguay, which at that time had a term of only 40 years, was a major change. TRIPS also forced the countries to establish criminal penalties for IP infringements conducted on a commercial scale, as well as to protect software using the same regulatory framework as that applied to literary works. While some of these measures were already established in the Berne Convention and other treaties administered by the World Intellectual Property Organization, TRIPS stipulated economic sanctions for countries that did not comply with the obligations, which resulted in rapid adaptation to a new regulatory framework. Continue reading

Members of the European Parliament call for safeguarding the Public Domain

Vrouw op een jaarmarkt door een dief van haar geldbuidel beroofd
stop the misappropriation of public domain works
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One of the issues that has been glaringly absent from the Commission’s proposal for Copyright in the Digital Single Market Directive is better protection of the Public Domain from Cultural Heritage Institutions who are trying to appropriate Public Domain works that they have digitized.

Most of Europe’s Museums, Libraries and Archives digitize Public Domain works in their collection in order to make them available without any restrictions (in line with our Public Domain Manifesto and Europeana’s Public Domain Charter). However, a minority of institutions uses loopholes in copyright legislation to claim exclusive rights over digital reproductions of works for which copyright protection has expired.

The legal basis for such claims is often found in copyright rules that also afford some form of protection to non-original photographs. These are photographic reproductions that qualify for copyright protection because they do not constitute the “own intellectual creation” of the author. Such loopholes exist in 7 EU member states and the proposed DSM directive would have been an opportunity to close them. Continue reading

The proposed publishers right is an attack on the public domain

Adreskaart voor boekhandel Scheltema en Holkema
Save the public domain from the publishers right
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Traditionally, at the beginning of the new year we celebrated what is known as Public Domain Day: on the first of January of any given year the works of authors who have been dead for more than 70 years enter the public domain. As this is a decisive year for copyright reform in the European Union, it seems much more important to highlight the dangers for the public domain that we are facing in the context of the copyright reform process (you can refer to Wikipedia and the Public Domain Review for overviews of works that have entered the public domain this year).

While copyright reform generally has a positive connotation, it is important to realise that a reform does not mean that things will change for the better. As we have pointed out before, the copyright reform package presented by the Commission is extremely one-sided. And both the attempt to introduce a new right for press publishers, and the requirements for online platforms to filter user uploads, have the potential to cause a lot of damage to the public domain and the ability of users to access information and express themselves online.

Shrinking the public domain

When it comes to the public domain the proposal to introduce a new right for press publishers contained in article 11 of the Commission’s proposal is the most dangerous, as it has the potential to shrink the public domain. Our 2010 Public Domain Manifesto defines the public domain as being

… comprised of our shared knowledge, culture and resources that can be used without copyright restrictions by virtue of current law.

This definition implies that the scope of the public domain can change in response to changes of the legal environment. The most obvious would be changes to the duration of copyright protection. Lengthening the term of protection would shrink the public domain while shortening the term would grow the public domain (as we argue for in our policy recommendation #1). Continue reading

What does Anne Frank tell us about copyright reform?

Anne Frank campaign cover photo
#readannediary
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On April 26—World Intellectual Property Day—the original, Dutch-language version of The Diary of Anne Frank was published online at annefrank.centrumcyfrowe.pl. With the publication of the original version of the diary, we wanted to highlight the absurdly long copyright terms in the EU. In addition, we wanted to point out that, contrary to the general assumption, the duration of copyright is still not unified across the EU. This leads to the troubling practice of geo-blocking which creates artificial boundaries online. Our posting of the diary online attempts to show the complicated copyright framework for this and similar works, and champions freedom to access to cultural heritage works in the public domain for  creators as well as users. But our campaign appeared to convey an even stronger message.

The campaign raised various concerns with regard to copyright terms and access to culture. We’ve already examined the differences between the three versions of the diary, so we won’t go into that in depth here. Without a doubt, versions A and B did not enter into public domain in the Netherlands due to specific copyright regulations (This is due to a transitional rule in the Dutch copyright act which states that works posthumously published before 1995 will retain copyright — in this case large parts of the original writings will only expire in 2037).

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Don’t bury Chopin’s legacy under a mountain of IPRs

The only known photograph of the famous pianist and composer, taken by Louis Antoine Bisson, public domain.
limitation on public domain is improper?
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The article was written by Marcin Serafin, the head of public policy team in Centrum Cyfrowe

The Poles and French will probably fight for the next few centuries over whether Frederic (or Fryderyk) Chopin was of Polish or French nationality. Both nations view Chopin as a national treasure, and preserve his memory and heritage. And there is no doubt that in both countries copyrights to his work have expired. Contrary to the case of Little Prince, there is absolutely no doubt about this, as Chopin died almost 170 years ago. This is why we were shocked to learn that the National Institute of Fryderyk Chopin (NIFC) not only issued an ordinance protecting his name and public image, but also filed an application to register two trademarks with the European Union Intellectual Property Office (EUIPO) for all possible classes of products and services using the word “Chopin”. With that, no more “Chopin Hotels”, “Chopin chocolates”, composition of flowers named “Chopin bouquet” or any other product without a license, is possible. 

First, let’s understand the facts. The EUIPO database holds 26 trademarks and 4 designs (some registered, some refused or rejected) with the “Chopin” element. Two of the trademarks have been filed on behalf of the NIFC for a wide variety of products and services. Also, NIFC has drafted a long list of terms and conditions users will need to agree to in order be able to use their Chopin trademark. Applications are reviewed by a board and if approve – the licensing fees are imposed. The board sets the rules to which a  license may be obtained for use of the trademark. There are 8 applicable licensed uses, including “music with patriotic messaging”, “European high culture”, “high esthetical value”, and “mastership or highest quality.”Continue reading