European Parliament to vote on copyright reform mandate this week – who’s voice will matter?

European Parliament (before the internet)
Can the EU Parliament #saveyourinternet?
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As the members of the European Parliament make their way to Strasbourg for the final plenary before the summer break, here is a reminder of what is at stake when they will vote on the JURI report on the proposed copyright directive this Thursday. Formally they will be voting to approve (or reject) the negotiation mandate the JURI members had given themselves on the 20th of June which, allows MEP Voss to start negotiating the final text of the directive with the Member States and the European Commission. As we wrote earlier the negotiation mandate is highly problematic as it embraces both the publishers right (“link tax”) and a requirement for open platforms to filter all user uploads (“censorship filters”). Both of these articles, which are pushed for by large rightsholders to give them more control over the content that they distribute, undermine important principles of the Internet and will cause significant damage to the much wider online environment.

In other words, the question that MEPs will have to decide this week, is if we accept the fact that fundamental principles of the Internet get thrown overboard at the request of particular industries who stand to benefit from such a move, even if it is clear that everybody else will be worse off as a result. Over the past weeks it has become clear that people are not happy with this prospect. MEPs have been overwhelmed with angry mails from Internet users, online creators have warned about the end of certain forms of creativity, people have taken to the streets in more than 30 places across Europe and more than 145 civil society organisations once again confirmed their opposition to the proposed measures.

In the light of these massive protests, the music industry which is the driving force behind the Article 13 upload filters is in damage control mode trying to downplay the effects of the measures it is calling for. Their fairly ridiculous attempt to position article 13 as “pro memes and mashups” was quickly debunked on social media and by European copyright scholars. The fact that scholarly opinion on the proposed changes, which largely overlaps with the perception by users, has been completely ignored by the members of the JURI committee is one of the driving forces behind the attempt to stop the JURI negotiation mandate this week.

So who is in favour of the measures approved by JURI and who is against them? Who should European lawmakers listen to when it comes to deciding on changes to the copyright regime that will have far-reaching effects for users, creators and businesses alike?

In favor of the JURI mandate: The position adopted by the Legal Affairs committee is supported by pretty much any organisation representing rightsholders and professional creators that is active in Brussels.

Against the JURI mandate: On the other side of the Debate we find the Civil Liberties and Consumer Protection committee of the European Parliament (both of which had adopted a more reasonable version of Article 13), more than 50 civil liberties organisations, organisations representing technology startups and software developers who all stand to lose from the proposed measures. Equally important are the warning voices coming from academics at Europe’s leading IP research centers, a group of the original architects of the Internet, the United Nation’s special rapporteur on the freedom of expression. Other critical voices come from creators, the Wikipedia community and hundreds of thousands of Internet users who have been contacting their MEPs via saveyourinternet.eu (and other platforms).

Most of these voices have been ignored by the debate in the JURI committee which has shown a particular disregard for independent expertise throughout the process. It is now up to all members of the European Parliament to decide if the Parliament should enter into negotiations with the Member States and the Commission based on the narrow view taken by the members of the JURI committee or on a view that takes these voices into account.

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!

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

As Council & Parliament edge towards finalizing positions, Article 13 remains a mess

Closeup of Art 13 flowchart
Art.13 in 3 flowcharts
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As the summer break draws closer both the European Parliament and the Council are intensifying their efforts to wrap up their positions on the proposed Copyright in the Digital Single Market directive. In both legislative bodies Article 13 (the upload filters for online platforms) remains the main stumbling block and both the Bulgarian Council presidency and the EPs rapporteur (MEP Voss) have have set deadlines this week to wrap up the discussion on Article 13.

Last week (after yet another inconclusive meeting on Article 13) MEP Voss has asked the political groups to provide him their final written comments “on the MAIN and MOST IMPORTANT open issues” by Wednesday the 23rd. On the same date the Bulgarian Council presidency has scheduled an attaché meeting to discuss the latest compromise proposal.

In the light of these (final?) attempts to wrap up the discussion it is important to take another look at how the discussion has evolved since the Commission published its proposal and how the 3 different versions of Article 13 compare to each other. In order to do so we have analysed the internal logic of the Commission proposal, the last Bulgarian compromise proposal and version 6 of the European Parliament’s Legal Affairs committee compromise text and depicted the most important elements in a series of flowcharts (see below). Even a casual glance at these makes it clear that both the Council’s and the Parliament’s changes to the text have resulted in vastly more complex versions.

Commission proposal: Simple language that creates a legal mess with lots of uncertainties.

Compared to the other two versions the Commission’s proposal is a thing of beauty. The article consists of three relatively concise paragraphs which results in a relatively straightforward flowchart: Continue reading

Council: Member States close to adopting a copyright maximalist position

Twee tijgers sluipend door het gras
Danger looming in the Council
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It is still unclear if the Bulgarian Council presidency will manage to get the member states in line to agree on a general negotiation position at the COREPER meeting scheduled for this Thursday. Under pressure from the Bulgarian presidency (or rather those who put pressure on them), the member states seem to be moving towards a common position. Last week’s working group meeting appears to have resolved most of the controversies around Article 3a (optional text and data mining exception) and Article 11 (press publishers rights). Article 13 remains the main sticking point, preventing the member states from agreeing on a negotiation mandate.

So what’s the status with regards to these 3 articles and where do the member states stand on them?

Article 13: Continued divisions over the scope of #censorshipfilters

In spite of the significant doubts that many member states expressed last year regarding measures targeting open online platforms contained in Article 13, the article has survived the subsequent rounds of discussions in the Council nearly intact. This seems mainly due to a pivot by the German government which is now backing censorship filters – even though the coalition agreement that underpins the current government is highly critical of such measures.

While there is agreement in principle, the Member States are still spit on the scope of the article. The maximalist axis of France, Spain, Portugal and Italy is backing a broad implementation of the article, while most other member states (including Germany) seem to be favouring a narrowing down of the scope of the services that would be required to filter. Lack of consensus on the scope of Article 13 seems to be the main obstacle that prevents the Bulgarian presidency from closing the file.

Article 11 map (April 2018)
Member States (in red) supporting the introduction of censorship filters for online platforms (own research)

As we have argued before, rushing Article 13 across the finish line carries substantial risks to the European internet economy and to our freedom of creative expression. Continue reading

Now even the rightsholders agree: Article 13 is dangerous and (and should be deleted)

Aanval van de Giganten op de godenwereld
Article 13 will hurt both users and creators
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Now that the Bulgarian Council presidency seems to have decided that it is time to wrap up the discussions on the DSM proposal and push for a political decision on a negotiation mandate, people are getting nervous. Late last week a whole assortment of organisations representing rights holders from the AV industry (organised in the creativity works! coalition) have sent a letter to Member State ministers and representatives, outlining their concerns with the latest Bulgarian compromise text. The document mainly focuses on Article 13, and what they have to say about that article is rather interesting (and surprisingly in line with positions that we have been arguing all along).

The overriding concern expressed by the rightsholders in their letter is that some of the more recent changes introduced in the council would turn Article 13 from a magic weapon against a few online platforms into a mechanism that threatens to further empower these very platforms in a way that does not benefit rights holders. In response to this, Creativity Works! (CW!) argues for further strengthening some of the most problematic aspects of Article 13.

We have long argued that Article 13 seems to be designed to benefit the big dominant online platforms, as it will entrench their market position. For smaller companies compliance with the filtering obligations will be difficult and costly while the main targets of Article 13 already have filtering systems in place (such as YouTube’s Content ID), and it is a welcome sign to see rights holders waking up to this reality.

For us it has been clear from the start that Article 13 will not achieve its stated goals. Instead the filtering obligations will cause tremendous harm to the freedom of expression and to open platforms that operate in fields that have nothing to do with the distribution of entertainment products. For this reason we think that the only responsible way to deal with Article 13 is to delete it and start over with a discussion about how we can best ensure that creators can be fairly compensated for their work. (Note that in this discussion most of the members of CW! are likely to be part of the problem rather than the solution as CW! has very little representation from actual creators.)

And while CW! is not joining us in our call to delete Article 13, their letter does illustrate our argument that adjusting general concepts of copyright law in order to address the concerns of specific groups of stakeholders is utterly irresponsible in the light of the big (and often unintended) consequences such an intervention can have.

Case in point: the re-definition of right of communication to the public. We and others critical of Article 13 have long argued that Article 13 would expand the right of communication to the public. Within the Commission’s proposal this aspect of Article 13 was hidden away in a recital, but over the successive drafts it has become more explicit. This seems to have led to the sudden realisation by rights holders that such a re-definition of this important right can also negatively affect them. In their letter they wrote on the last Bulgarian compromise proposal:

It would limit the scope of the right of communication to the public by incompletely applying Court of Justice of the European Union (CJEU) case law and setting into stone in Article 13 only certain criteria developed by the Court. This approach would roll-back the CJEU’s case law, which has repeatedly confirmed that a broad interpretation of the right of communication to the public (CTTP) is necessary to achieve the main objective of the Copyright Directive, which is to establish a high level of protection for authors and rights holders. CW! recalls that the exclusive right of communication to the public, including the making available right, as enshrined in EU law (and further clarified by the Court), has emerged as the bedrock for the financing, licencing and protection of content, as well as its ultimate delivery to consumers in the online environment. The Court has also emphasised, in its recent judgments, that in order to determine whether there has been a CTTP, several complementary criteria must be taken into account, which are not autonomous, but are interdependent. Any proposals that entail a selective application of the Court’s jurisprudence, or that imply a narrowing of the scope of the right of CTTP, would be contrary to the protection required by current EU and international law.

While we do not agree that the current draft would limit the scope of the CTTP right, this passage illustrates the dangers of carelessly fiddling around with core legal concepts that underpin the EU copyright framework. Continue reading