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.

Article 13: the house is on fire!

Brand in de lijnbanen op de schans aan de Smallepadsgracht
Lawmakers struggle to contain Article 13
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Last week, the German Council delegation shared a “non-paper” with proposals to mitigate the negative effects of article 13, which screamed “Houston, we have a problem”. On Monday the Romanian Council Presidency shared a working paper on article 13 that makes similar attempts to reduce the negative impact of article 13. And yesterday the representatives of the audiovisual and publishing sectors called for the suspension of the negotiations on article 13. These moves show that (1) upload filters are gaining opponents (or losing supporters) at a fast pace and (2) lawmakers are starting to envision the social and political consequences of this ill-conceived law proposal.

The Romanian proposal attempts to save the sharing culture, but fails spectacularly

Ahead of the Council Copyright Attachés meeting that took place yesterday, the Romanian Council Presidency proposed a possible compromise solution on article 13 that 1) exempts platforms from liability in certain situations (e.g. if they made best efforts to obtain an authorization from the rightsholders) and 2) introduces a mandatory EU-wide user-generated content exception to copyright, which allows users to upload and make available content generated by themselves, but not by others. The Romanian compromise further suggests to continue to discuss if online platforms that are microenterprises and small-sized enterprises shall be exempted or not from the obligations imposed by article 13.

The fact that the compromise solution presented by the Romanian Presidency contains the introduction of a UGC exception shows the intention to make a positive contribution to the negotiations. However, the drafting is far from bringing a meaningful solution for users. To start, the proposed exception only allows the use of parts of works, making it impossible for users to share user-generated content containing an entire artwork (e.g. a meme using a painting in its entirety) or an entire short work (e.g. a meme using a poem in its entirety). Then, it only allows users to share content generated by themselves, and not by others! What is the point of sharing a meme on an online platform, if other users cannot interact with it, by sharing it too? Continue reading

Germany’s non-paper on art. 13 screams “Houston, we have a problem”

Nasa Apollo 13 Mission Control
There's no public support for Article 13
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This week Politico.eu has shared a “non-paper” prepared by the German Council delegation on article 13, ahead of the Council Copyright Attachés meeting that took place on Wednesday. In this paper Germany proposes to mitigate the negative effects of art. 13 by 1) exempting platforms with a turnover of up to 20 Mio. Euros per year from the obligations imposed by art. 13., 2) exempting platforms from liability in certain situations (e.g. if they made best efforts to obtain an authorization from the rightsholders), and 3) introducing a mandatory EU-wide user-generated content exception to copyright, subject to the payment of a fair remuneration to the rightsholders.

A Christmas tale

It is clear that there is a social legitimacy problem with a law proposal when, in every household visited during the Christmas holidays, someone starts talking about it. Children as young as eleven, teenagers and parents all knew about the existence of an infamous law proposal, which they referred to as “Article 13”. The familiarity with which they pronounced the number of the article was such that an undiscerning observer would believe they had been closely following the copyright reform and had actually read the European Commission’s proposal on upload filters.

Sure enough the children and the teenagers had not read the legal provision, neither had their parents. Their knowledge was based on the Youtube videos on art. 13 produced by their favourite Youtubers and/or on the newspaper articles that (finally) had started reporting on the issue, after those videos had become viral (one has now close to 5 million views).

This was the rule for every household, except one, where one of the parents – let’s call him a software and platforms entrepreneur – had not only read the proposal, but could easily point out the flaws on the lawmakers reasoning. Continue reading

To block or not to block? Commission’s vague “non-paper” does not meet our minimal standard

Man met een brief
Commission non-paper would support filtering
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This week, Politico.eu has shared a “non-paper” prepared by the European Commission on article 13, ahead of the next trilogue on 13 December. The Commission has been tasked during the recent trilogue meeting with proposing a compromise solution on the issue of “mitigation of liability in the absence of a license”, in face of diverging views between the European Parliament and the Council.

In general, any direction on this piece of regulation seems to be lost, with actors participating in the trialogue willing to treat the article like a puzzle, in which puzzles can be rearranged in any way possible – beyond the scope of any previously negotiated and legitimized mandate. The process once again proves to be obscure and lacking with regard to basic rules of participatory policymaking.

The Commission was given several guidelines. These include an assumption that platforms do communicate to the public and need to obtain licenses or that automatic blocking should be “avoided as much as possible”, but is also not forbidden.

Earlier this week, we published four principles, based on which we plan to evaluate the proposed language for article 13. We believe that any version of Article 13 that does not take these four principles into account will need to be rejected in the final vote taken by the European Parliament.

We decided to check the Commission’s proposal, included in the non-paper against our principles. This has been made difficult by the fact that what is proposed in the non-paper is in many ways vague. Once it becomes more substantial, we will be able to make a definitive judgement. But even now, lack of details on some issues – such as protection of content fitting copyright exceptions from overfiltering – is telling. Continue reading

yes. i am lonesome tonight.

Screenshot of video Licentie

yes. i am lonesome tonight. is a video by visual artist and performer Daniel Pinheiro, and probably one of the most intelligent uses of a pre-existing work that you’ll see on social media platforms today and tomorrow. Not the day after, because copyright infringement will soon prompt its removal.

You see, some of the works created by Daniel Pinheiro rely heavily on copyrighted works that do not belong to him. yes. i am lonesome tonight. consists of a black screen in which the words “yes”, “i did”, “i’m sorry” and “i didn’t” appear as answers to the questions posed by Elvis Presley in the song “Are you lonesome tonight”, composed by Lou Handman and Roy Turk. Elvis sings “Are you lonesome tonight” and Daniel whispers “Yes”. And so it goes:

Do you miss me tonight?

Yes.

Are you sorry we drifted apart?

Yes.

Could fair use save the lonely artist?

Daniel’s intervention is minimal, from a quantitative point of view, and he uses the source work in its entirety, which would weigh against fair use, in countries where fair use exists. Yet I doubt any art curator or critic would not render it as a new and unexpected use of Elvis’ musical performance. In other words, the transformative character of yes. i am lonesome tonight. could perhaps be enough to consider this Visual-Art work a fair use, even when all the remaining statutory factors (such as the amount of the source work used) would traditionally weigh against fair use. 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.

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

Nederlaag van de titanen
but you can still #SaveYourInternet
Licentie

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!
Licentie

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.

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
Licentie

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