Seven ways to save the EU copyright reform effort in 2018

Vuurwerk ter ere van de kroning van Willem III en Maria II tot koning en koningin van Groot-Brittannië
Its 2018! Time to finally #fixcopyright
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With the arrival of 2018 the discussions of the Proposed Copyright in the Digital single Market Directive enters into its third year. After more than a year of discussions in both the Parliament and the Council, it is likely that 2018 will at the minimum see final positions from both institutions. Depending on how quickly these positions will be established we may even see the adoption of the directive in 2018. To get everybody up to speed here is a quick refresher of what is at stake in 2018:

1. The publishers right must die!

Form the start the idea of granting press publishers a neighbouring right (an extra layer of copyright) in their publications has been one of the most controversial parts of the Commission’s proposal. The idea, based on laws that have failed in both Germany and Spain, is so deeply flawed that there is almost no one from the academic community who is willing to argue in favor (there are of course lots of academics who oppose it). Even worse, in the course of 2017 it has become clear that both the European Parliament and the European Commission have tried to lock away self-commissioned studies that clearly show that the new right not only would be ineffective at directing views (thus, funds) back to publishers, it would also harm media pluralism and access to information.

In spite of the overwhelming amount of evidence speaking against it, and even though its original sponsor (Commissioner Oettinger) is no longer in charge of the dossier, the idea of granting press publishers more rights in order to economically strengthen them refuses to die. It is time that MEPs and the Member states realize that adopting laws based on wishful thinking is the opposite of evidence based policy making, and refuse to create additional rights for publishers. This should be easy as there is an alternative proposal that would strengthen the legal position of press publishers without threatening the freedom to link.

2. Real legal certainty for Text and Data mining!

One of the core problems of copyright systems without a flexible exception (like fair use) is that everything not specifically permitted in the text of the copyright law will be deemed an infringement. This has resulted in an unclear legal status regarding Text and Data mining (letting computers read and interpret texts and other data). Since most forms of text and data mining require the making of copies, rights holders argue that text and data mining needs to be licensed, even if the entity engaging in TDM has legal access to the text and/or data to be mined. Continue reading

European Parliament Civil Liberties committee is second EP committee to reject mandatory upload filters

Twee apen maken muziek
Article 13 is a threat to creative expression online
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Yesterday, the members of the European Parliament’s Civil Liberties Committee (LIBE) did the right thing and voted down the Commission’s proposal to impose upload filters on online platforms. The LIBE opinion, which was drafted by Polish EPP MEP Michał Boni and adopted with a clear majority of 36 votes for and just 5 against, dismantles the most problematic aspects of Article 13 of the Commission’s proposal: the members of the LIBE committee voted to remove the obligation for online platforms to use automated content recognition technologies to filter all user uploads in order to prevent users of these platforms from sharing copyrighted materials without permission from rights holders. The opinion also proposes strengthening user’s ability to contest the takedown of works they’ve uploaded.

Members of Parliament are recognizing the dangers upload filters pose to freedom of expresion..

While this approach is not perfect (as we have repeatedly said Article 13 should be deleted from the proposed directive), it shows that the members of the European Parliament are not willing to blindly follow the attempts by the music industry and the Commission to give big rightsholders more control over how we create, share and access content online. It is encouraging to see that the members of Parliament have listened to the arguments against automated upload filters, such as the recent warning by more than 50 prominent professors and scholars of copyright and internet law that automated filtering systems “would deprive users of the room for freedom of expression” and the open letter that we co-signed with 50 human rights and civil liberties organisations, which pointed out that content filters would both “limit the freedom to impart information […], and the freedom to receive information on the other.”

LIBE is now the second committee of the European Parliament that is calling for a halt to the automated content filtering plans proposed by the Commission. Back in July the Internal Market and Consumer Protection Committee (IMCO) adopted the same amendments that were adopted yesterday by LIBE. While both committees will be at the table when the leading JURI committee discusses these plans, it is far from certain that the Committee on Legal Affairs will follow the line established by them.

…while Member States continue to push for mandatory censorship filters

Outside of the European Parliament the LIBE vote also sends a strong signal to the Member States who are discussing this issue in parallel. The Estonian presidency has proposed a new compromise text on article 13 that will be discussed among the member states later this week. The language proposed by the Estonian proposal significantly overhauls the Commission’s proposal, but that new coat of paint cannot hide the fact that it still tries to force online platforms to implement automated content filtering technologies. Continue reading

Paradigm lost? How creativity is weaponized against us

Time Clipping Cupid's Wings
Does creative industry support creativity?
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This post is based on the talk Anna gave during CopyCamp 2017 “Paradigm Lost? How Our Freedoms are Weaponized Against Us and What We Can Do About It”. A video of the talk is available here.

How do you lobby for a great copyright in the post-political world? With difficulty, since it is also a post-factual world: politicians seem to care more about marketing than evidence. Perhaps when the facts are not important we should then look for a better propaganda?

Copyright beyond the bubble

This “better propaganda” should not be populist or based on lies. Digital rights organizations need a better, compelling narrative to convince people to care more. We need to test new approaches because European citizens do not realize that they are bound by the copyright framework every time they access news, knowledge or entertainment on the internet.

We also need to find more compelling ways to talk about rights in the digital environment because these days everybody is a creator and the only difference is that some of us identify as such and many of us don’t. Those of us who don’t, also don’t think that our small acts of creativity such as memes or photos we post online are serious enough to give us this status, but this does not change the fact that we are indeed creators.

From creativity to celebrity

In both cases creativity is crucial for self-expression, and self-expression is key to one’s identity. Today all three: creativity, self-expression and identity become market commodities, increasingly so via social media. So what happens when they enter the market?

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France, Spain and Portugal: We must adapt the internet to the reality of copyright (not the other way around)

La liberté guidant le peuple
Vive le ©, mort aux plates-formes ouvertes!
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Lately we have written so much about ourselves, human rights organisations, academics (1|2) and member states (1|2) criticising the upload filters proposed in article 13 of the proposed DSM directive that one could almost forget that there are indeed powerful forces who are pushing for these filters to become a reality.

A new set of documents leaked by Statewatch presents an (un)welcome reminder of of the fact that the idea of upload filters has powerful supporters outside of the music industry and that they wield considerable influence on the discussions in the council. The set of documents consists of a document containing “amendments to recitals 37, 38, 39 and Article 13” proposed by the French, Spanish and Portuguese delegations (dating from 2 october) and a document by the Estonian Council Presidency containing the questions raised to the Member States during 17-18 October meeting of the Council Working Party on Intellectual Property, which echoes the tone set by the amendments proposed by the three member states.

The amendments proposed by France, Spain and Portugal offer the clearest view yet on what the proponents of article 13 want to achieve. In their eyes article 13 is not about vague and ill defined “measures to ensure the functioning of agreements concluded” between rightsholders and online platforms but about creating a complete change of the legal status of open online platforms. The amendments proposed make an attempt to (a) re-define the activities of online platforms as communication to the public undertaken by those platforms and to (b) remove online platforms that allow uploads by their users from the protections afforded to them by the e-commerce directive.

Legal uncertainty exists as regards the conditions under which the provision of access by information society service providers allowing users to upload content can be considered as an act of communication to the public. This affects rightholders’ possibilities to determine whether, and under which conditions, their works and other subject-matter are used as well as their possibilities to get an appropriate remuneration for it. The present directive clarifies the conditions under which such information society service providers can be considered to perform an act of communication to the public and therefore do not fall in the scope of Article 14 of the Directive 2000/31/EC. (recital 37, additions by FR/ES/PT in bold)

While the proposed Copyright in the Digital Single Market directive is seen by most stakeholders as an attempt to adapt the copyright rules to the evolving realities of the digital economy, the French (and their Portuguese and Spanish supporters) are clearly of the opinion that it should be the other way around: according to them the realities of the digital world must be adapted to the principles of copyright orthodoxy (i.e to a legal constructs established in the late 19th century). Continue reading

More academics speak out against upload filters for online platforms

Man met een brief
Article 13 is incompatible with fundamental rights
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It seems like it is open letter writing season in Brussels right now. In the absence of any real legislative progress the directive on Copyright in the Digital Single Market, experts and other stakeholders are seizing the opportunity to make their voices heard. After more than 50 civil society organisations including Human Rights Watch, Reporters sans Frontiers and the Freedom of the Press Foundation issued a statement opposing the online filtering provisions proposed in article 13 of the Commission’s proposal, a group of more than 50 high profile copyright scholars has come forward with yet another statement opposing article 13.

In their paper “The Recommendation on Measures to Safeguard Fundamental Rights and the Open Internet in the Framework of the EU Copyright Reform” published on SSRC statement, the academics led by Professor Martin Senftleben (VU Amsterdam) restates the main problems posed by article 13 and recital 39:

The measures contemplated in Article 13 DSMD can hardly be deemed compatible with the fundamental rights and freedoms guaranteed under Articles 8 (protection of personal data), 11 (freedom of expression) and 16 (freedom to conduct a business) of the Charter of Fundamental Rights of the EU. The application of filtering systems that would result from the adoption of Article 13 DSMD would place a disproportionate burden on platform providers, in particular small and medium-sized operators, and lead to the systematic screening of personal data, even in cases where no infringing content is uploaded. The filtering systems would also deprive users of the room for freedom of expression that follows from statutory copyright exceptions, in particular the quotation right and the right to parody.

The adoption of Recital 38 DSMD would moreover lead to a remarkable restriction of eligibility for the liability privilege following from Article 14 of the E-Commerce Directive. Recital 38 DSMD does not adequately reflect the current status quo in the area of the safe harbour for hosting laid down by Article 14 E-Commerce Directive. […] The general requirement of “knowledge of, or control over” infringing user-generated content is missing. In the absence of any reference to this central requirement, Recital 38 DSMD is incomplete and fails to draw an accurate picture of the current conceptual contours of the safe harbour for hosting. […] Because of the ambiguous wording of Recital 38 DSMD, there is a real risk of modifying the notion of “communication to the public” considerably.

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Leading Academics: Article 13 is incompatible with EU law and must be deleted

Anatomische les van professor Paaw
There is no place for upload filters in EU law!
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Last week (the same day that we published an updated version of our position paper on article 13) our friends at copybuzz pointed to a paper by The Max Planck Institute for Innovation and Competition on article 13, published in response to a set of questions raised by six EU member states over the summer. As we have reported here, the questions related to the relationship between the measures proposed in article 13 and recital 38 of the Commission’s proposal and the existing EU legal framework (the E-Commerce Directive, the InfoSoc Directive and the Charter of Fundamental Rights of the EU).

The questions posed by the member states already implied that article 13 and recital 38 would violate a number of legal concepts established by existing legislation. The answers provided by the Max Planck Institute confirm this. As the paper, authored by Prof. Dr. Reto Hilty and Dr. Valentina Moscon points out, there are serious problems with all 4 aspects of the proposal that have given rise to the member state’s queries. Based on their analysis the Hilty and Moscon come to the same conclusion as we did in our own position paper:

Therefore, it is inadvisable to adopt Article 13 of the proposed Directive and its respective Recitals, 38 and 39. (page 2)

This opinion is based on an analysis that finds that the Commission’s proposal would create legal uncertainty, would risk conflicting with the user rights (exceptions and limitations) granted by the InfoSoc Directive, would be inconsistent with the E-Commerce Directive, and could enable abusive behaviour that threatens fundamental human rights, such as the freedom of expression and information.

A scathing takedown of the Commission’s Proposal

All in all, the responses to the questions posed by the six member states read as a scathing takedown of the Commission’s Proposal. Continue reading

Updated position paper: Article 13 remains a terrible idea and needs to be deleted

Zeeslag voor Gibraltar
Article 13 is an attack on the open internet
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Today we are publishing an updated version of our position paper on Article 13 of the European Commission’s proposal for a directive on Copyright in the Digital Single Market. Since we have published our original position paper in January of this year, Article 13 has generated an enormous amount of discussion and has emerged as the most contested part of the Commission’s proposal. The discussions within the parliament and among the Member States are still ongoing and so far there is no clear indication where these talks will end.

In the updated policy paper we re-iterate our concerns (a few of them have recently been taken up by a group of Member States in a set of questions to the legal services of the Council), analyse proposals for amending the Commission’s proposal that have been adopted in the European Parliament, and provide a set of recommendations. Our key recommendation remains to delete article 13 from the proposal as it addresses a problem that lacks empirical evidence confirming its existence. Article 13, as drafted by the Commission, would limit the freedom of expression of online users and create legal uncertainty that has the potential to undermine the entire EU online economy. As such it is unworthy of being included in a Directive proposal that is intended to modernize the aging EU copyright framework.

Read the updated position paper below. If you are familiar with the issues at hand and/or the previous version you may want to jump straight to the updated part.

Position paper: EU copyright should protect users’ rights and prevent content filtering

Article 13 of the European Commission’s proposal for a Directive on Copyright in the Digital Single Market attempts to address the alleged disparity in revenues generated by rightsholders and platforms from online uses of protected content (the so called “value gap”). The proposed article attempts to do this by introducing an obligation for “Information society service providers that store and provide to the public access to large amounts of works” to filter user uploads. It would also require these providers to set up licensing agreements with rightsholders.

These proposed measures are highly problematic as they violate fundamental rights of users, contradict the rules established by the E-Commerce Directive, and go against CJEU case law. The measures proposed in the Commission’s proposal stem from an unbalanced vision of copyright as an issue between rightsholders and infringers. The proposal chooses to ignore limitations and exceptions to copyright, fundamental freedoms, and existing users’ practices. In addition, the proposal fails to establish clear rules with regard to how citizens can use protected works in transformative ways—such as remixes and other forms of so-called “user-generated content” (UGC). As a result, a system of this kind would greatly restrict the way Europeans create, share, and communicate online. Continue reading

Legal Affairs Committee Stops Short of Protecting User Rights

Schaatsenrijden in een dorp
we need some forward-looking changes
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MEP Therese Comodini Cachia, the Rapporteur on the Copyright in the Digital Single Market Directive in the European Parliament’s Committee on Legal Affairs (JURI), is currently  perhaps the most influential person on copyright policymaking in Brussels. Last week her draft report was officially published. Communia has already praised Ms. Comodini for calling the publishers’ bluff on ancillary copyright and for proposing to really unlock Europe’s research potential by removing the harmful and unworkable restrictions to text and data mining that the European Commission proposed.

Given Ms. Comodini’s deep understanding of the interplay between law, society, and technology, and the shrewd manner in which she solved several legal Gordian Knots in her draft, it comes as a disappointment that we fail to see some forward-looking changes that would really make the European copyright framework fit for the Digital Single Market.

Freedom of Panorama

Some two years ago the European Parliament had its first heated discussion on the question of Freedom of Panorama. A lot has happened since then, including introduction of a new copyright exception in support of Freedom of Panorama in both France (limited) and Belgium (full). Continue reading

Copyright law does not have to criminalise users

The Abduction of the Sabine Women
Better copyright in two steps
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Sharing cultural works online is a familiar part of life for hundreds of millions of people. Many of them share to satisfy a sincere desire to empower and inform their communities, to self-affirm and self-create in the virtual world. But under the law much of this sharing infringes copyrights and neighbouring rights, which means that rightholders are entitled to seek compensation. So how can we adjust the law to the realities lived by millions online and still be fair to authors?

Looking for more balance

A proper solution for these problems needs to introduce a space of legal safety for natural persons who use copyrighted works for noncommercial purposes as well as provide for a fair and transparent scheme for remunerating rightsholders. It could build upon users’ willingness to pay for on-line sharing, as shown by some studies.

However, putting those ideals into practice and translating them into the word of law is not easy. It is because any regulation of exclusive rights of authors should comply with strict requirements formulated in the international and EU copyright regime. The starting point is that generally a copyright holder’s consent is necessary for any use of a work. Traditionally, there have also been some uses of copyrighted works not requiring consent. In the EU such uses are usually called “exceptions and limitations”.

Noncommercial sharing exception

Can noncommercial sharing be covered by an exception? Well, current exceptions and limitations are listed in the INFOSOC Directive. This is a closed list, so although the idea is appealing, the Member States are not free to add new exceptions on their own. Hence a need for the activity at the EU level.

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MEP Stihler highlights user-generated content, but where’s freedom of panorama?

Melancholia
Amendments should focus on user rights
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Last week the Committee on the Internal Market and Consumer Protection (IMCO) released a  draft opinion on the proposed Directive on Copyright in the Digital Single Market. It’s not bad. Rapporteur Stihler’s opinion makes it clear that the European Commission’s proposal is seriously flawed and requires substantial changes. It contains proposals for amendments that address many of the issues with the original proposal.  This week we’ve written more extensively on these, including the suggestion to drop the ancillary copyright for press publishers, the broadening of the TDM exception to permit mining by anyone for any purpose, a potential fix to the content upload filtering mechanism, and the continued problematic reliance on licensing within the exception for educational purposes.  

We are pleased that just as in the draft CULT opinion, IMCO acknowledges the importance of protecting and strengthening user rights. Rapporteur Stihler’s broad scope is especially important, as it would permit a person “to use an existing work or other subject matter in the creation of a new work or other subject-matter, and use new work or other subject matter”. In other words, it doesn’t matter what a user needs the protected content for, he or she may just use it as long as they create something new with it. For reference, CULT’s draft opinion proposed a UGC exception to apply primarily when it serves criticism, illustration, parody, etc.

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