Reminder: Article 13 will help dominant platforms, not hurt them

A dragon devouring the companions of Cadmus
Regulatory burden will hurt smaller platforms
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Two weeks ahead of the second trilogue meeting on the 26th of November where the most controversial parts of the Copyright Directive will be discussed for the first time, various stakeholders are starting to position themselves for the final stages of the reform process. Yesterday Politico.eu leaked the compromise suggestions prepared by the Austrian Presidency for articles 11 and 13. Unsurprisingly the suggested texts maintain the general approach that was cemented by both the Council and the Parliament over the summer (see analysis by MEP Julia Reda here). By now it is clear that regardless of how much we argue that Article 13 should be deleted and that Article 11 should be limited to a presumption of representations neither of these two things will happen.

Limiting the damage by clearly identifying the services targeted

Under these conditions it seems that the most promising approach to minimize the harm that will be caused by these articles will be to limit what type of services they apply to.

Article 11 should be modified in such a way that it only applies to search engines and news aggregators. These are the type of services that press publishers are claiming to cause them harm (which we continue to doubt). This would prevent a lot of legal uncertainty (and thus damage) for everyone else on the internet.

The same approach makes sense for article 13. The music industry and other rightsholders have consistently argued that they are harmed by large online platforms that allow users to share audiovisual (AV) works. Given that the stated objective of the proponents of article 13 is to create a better bargaining position for rightsholders vis a vis YouTube, Facebook, Google and other commercial platforms, it seems reasonable to limit the types of services that would need to comply with article 13 to for-profit audio visual platforms that compete with licensed services only. Such a measure would prevent a lot of legal uncertainty for platforms that do not deal with AV works or do not operate on a for profit basis. Continue reading

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.

Latest Article 13 compromise by MEP Voss is the worst one yet

De verzoeking van Adam en Eva in het paradijs,
Yet another poisoned "compromise" proposal
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In less than two weeks the European Parliament will vote on its position on the Copyright in the Digital Single Market directive. After the resounding rejection of the JURI mandate on the 5th of July, MEPs are searching for compromises that will allow the European Parliament to enter into negotiations with the Commission and the Member States. A key to finding such a compromise will be a new version of Article 13 that reflects the broad opposition against the upload filters that led to the rejection of the JURI mandate in July.

Last week Friday MEP Axel Voss presented his proposal for a new compromise on Article 13. According to Voss the new version answers to the demands voiced by critics of the original JURI text (and he expects those critics to support his new version):

Unfortunately this does not mean that MEP Voss has suddenly taken the concerns raised by users, academics, civil liberties organisations and many others into account. Instead he is proposing a version of Article 13 that would be even worse than everything that has been on the table so far. His newest “compromise” proposal consist of a simplified version of Article 13 that would make all online platforms that allow users to upload content (other than a select few) directly liable for copyright infringements committed by their users:

(1) Without prejudice to Article 3(1) and (2) of Directive 2001/29/EC, online content sharing service providers perform an act of communication to the public.

As a result open platforms would need to obtain licenses for all copyrighted content that could possibly be uploaded to such platforms, which is of course impossible since not all copyrighted content is available for licensing. In practice this will mean that platforms need to filter out all copyrighted works for which they do not have a license. Contrary to what Axel Voss wants us to believe, his latest proposal would mandate upload filtering on an unprecedented scale (see the flowchart below for a more detailed analysis). Continue reading

Copyright action week: Join us to #saveyourinternet

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Summer is definitely over (sorry to write this) and copyright reform is back as one of the most controversial issues on the Brussels policy agenda. It is expected that the European Parliament will finally decide on the position on the proposed Copyright in the Digital Single Market Directive on September, 12th. 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.

To prevent this from happening we are joining forces with a broad coalition of civil society organisations, academics, libraries and free software developers to advocate for sensible rules that do not limit access to knowledge, freedom of expression and innovation online. A balanced approach on copyright reform matters for all of us and we urge you to join us in convincing MEPs that they must not damage the internet in order to serve the interests of rightsholders. Please join us in contacting your MEPs via saveyourinternet.eu  

Copyright action week

Throughout the coming days (up until the 11th which is the day before the vote in the European Parliament) various groups and initiatives will highlight the negative impact of the Article 13 (upload filters) on a broad range of issues. These include human and digital rights, academic research , access to knowledge, online creation and fan art and many other everyday online activities. Continue reading

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