We’ve already written about how the Bulgarian compromise proposal for both Article 13 and Article 11 are too broken to fix. Their proposal for Article 3 (Text and Data Mining) does little to alter the major problems standing in the way of a progressive exception for text and data mining.
We’ve continued to follow Article 3 since the European Commission published its proposal on copyright in the Digital Single Market. Even though the Commission’s exception for TDM would be mandatory, we criticised their plan as not going far enough, as it would limit the beneficiaries of the exception only to research organisations, and only for purposes of scientific research.
TDM in the Bulgarian presidency proposal
The Bulgarian proposal is nearly identical to the changes already offered by the earlier Estonian plan. It leaves intact the Commission’s obligatory TDM exception that would apply to research organisations (including cultural heritage institutions) for purposes of scientific research. The Bulgarian proposal similarly introduces an additional and optional exception in Article 3 for temporary reproductions and extractions. This additional exception would apply to beneficiaries other than research organisations, and for uses other than scientific research. But those acts would be limited in that they only would cover temporary reproductions and extractions, and only if the rightsholder does not prohibit it.
In our earlier blog post we wondered whether the existing (and mandatory) exception in the InfoSoc and Database Directives on temporary reproductions arguably already covers the temporary reproductions for text and data mining purposes. In any case, this additional and merely optional exception, for acts that might already be covered under existing law, which can easily be neutralised if rights holders don’t want it, is a weak compromise. It doesn’t address the main concerns we’ve had with Article 3 since the beginning. It also fails to bring much needed harmonization and will instead further the already existing fragmentation of users rights in EU. Continue reading →
Last week more than a hundred of copyright reform activists got together in Brussels for the the European Copyright Action Days to make it clear to EU lawmakers that the copyright reform effort that is currently being discussed in the European Parliament and the European Council is not good enough. In a series of events organized by Copyright 4 Creativity, Create.Refresh, Communia and others, activists and other stakeholders discussed the shortcomings of the current reform proposal as well as ideas for a more future-proof overhaul of the outdated EU copyright system.
As part of the Copyright Action Days we organized a a roundtable on the future of education in the European Parliament, our first ever COMMUNIA Salon on the future of copyright in the Museum of Natural Sciences and two workshops for copyright reform activists.
The roundtable on the the future of education hosted by Dutch MEP Marietje Schaake was a full room event at the European Parliament, with over 40 policymakers and stakeholders attending. We discussed the intersection of educational policy, technology, copyright reform and open licensing policies. Irish school teacher Leanne Lynch talked about the use of technology, social media platforms and digital copyrighted materials in the classroom. Mitja Jermol – UNESCO Chair on Open Technologies for Open Educational Resources and Open Education – talked about how new technologies can support educational goals. Andreia Inamorato dos Santos from EC’s Institute for Prospective Technology Studies presented results of their latest report on open education policies in Europe. Finally, Damjan Harisch from the Slovenian Ministry of Education and Maja Bogataj Jančič, Director of the Slovenian Intellectual Property Institute, presented the position of Slovenian Ministry of Education on the copyright reform During the event, Teresa Nobre also presented our latest research on licences for educational uses. We are happy that we had the opportunity to exchange views on the matter with representatives of publishers and CMOs.
The COMMUNIA salon in the Museum of Natural Sciences brought together more than 70 activists, academics and policy makers to discuss challenges on the intersection of creativity, value creation and copyright in the online environment. Under the title “Copyright for the future” the discussions attempted to draw up a perspective that looks beyond the current legislative proposal. Continue reading →
This spring the ongoing effort to modernize the outdated copyright rules enters into the decisive fase. It is widely expected that both the European Parliament and the EU Member states will their position on the proposed Copyright in the Digital Single Market Directive. 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.
Against this backdrop we are organising European Copyright Action Days on 19-21 march in Brussels. During these days we want to highlight the broad opposition of civil society, libraries, the users industry and many others concerning the restrictive aspects of the copyright reform proposal. During these days activists will convene in Brussels to discuss with lawmakers and advocate for a more future proof reform and to raise attention for the dangers of the proposed measures. Continue reading →
After more than a year of discussions MEP Axel Voss has finally come forward with his ideas about one of the most controversial aspects of the EU copyright reform proposal. On Wednesday he shared his compromise proposals for Article 13 of the proposed copyright in the DSM directive, that deals with filtering measures aimed at online platforms. The “compromises” drafted by MEP Voss make it clear that with regards to article 13 he has chosen to do the bidding of the music industry at the expense of users, open platforms and pretty much the rest of the internet.
Let’s focus on two main aspects of the approach that Voss is backing (for a more comprehensive analysis of his compromise see Julia Reda’s excellent write-up here). What would the new rules mean for users sharing materials via platforms, and what would the new rules mean for online platforms?
Online platforms: License or cease to exist!
In the version supported by MEP Voss, article 13 establishes two different obligations for online platforms that allow user uploads. In a first step, all platforms are required to obtain licenses from rightsholders. Those platforms that hold “significant amounts” of content also need to take “appropriate and proportionate measures to ensure the functioning of these agreements”. In the case that platforms do not have licensing agreements with rightsholders they need to take “appropriate and proportionate measures to prevent the availability on their services of works or other subject-matter”.
These rules would effectively end the current situation in which online platforms are not directly responsible for content that their users upload. The new rules would mean that all online platforms “that store and provide access to the public to copyright protected works or other subject-matter uploaded by their users” (which means pretty much all platforms) will be directly responsible for the content uploaded by their users and must obtain licenses from (unspecified) rightsholders. If they don’t (which is a strange condition given that all platforms must do so) they must implement filtering rules that prevent all copyrighted works from becoming available on their services. In other words, platforms must obtain licenses from rightsholders or they must cease to exist (as it is somewhat hard to make a business case for a platform on which nothing is available). Continue reading →
One of the biggest shortcomings of the discussion on copyright is that most of it seems stuck in a fairly outdated creators vs users dichotomy. Copyright laws around the world are generally structured in such a way that they grant exclusive rights to creators and try to balance these with a limited set of rights for users (in the form of exceptions or limitations to copyright). Based on this design it is widely assumed that more (or stronger) exclusive rights benefit creators and that more (or broader) exceptions to copyright benefit users.
This conception is problematic on a number of levels. For one it is clear that creators benefit from user rights that ensure that users have a basic level of access to culture through educational systems and via public institutions such as museums and libraries. On the other hand users benefit from the exclusive rights granted to creators as they incentivise the very production of culture and knowledge that they want to access.
A more fundamental challenge to this general understanding of copyright is posed by the fact that the roles of users and creators are not mutually exclusive, but overlapping. Many creators are also users of copyrighted materials and the other way around. The technological development of the past two decades has contributed to this blurring of the boundaries between creators and users. Digital technologies greatly facilitate both the creative re-use of existing works and the distribution of the resulting new works. This development has resulted in the emergence of the (somewhat nonsensical) category of “user generated content” and concepts like the “prosumer“.
These concepts deal with users becoming creators, and there are relatively straightforward answers to the challenges posed, such as the need to introduce an exception for user generated content in the EU copyright framework that we have been advocating for. But there is another more interesting side of the coin: creators becoming users. While it is true that creators have always appropriated the works of those authors who came before them, these dynamics have been turbocharged by the digital revolution. Creators have entire libraries of content at their fingertips, and the tools to manipulate, incorporate and build on existing works are becoming increasingly sophisticated. These are exciting times to be a creator, but this new reality also brings creators into contact with the limitations to their creative freedom imposed by copyright law. Continue reading →
Today, a group of Portuguese organizations, including an important innovation acceleration hub, software companies, free culture and users rights advocates, and the Portuguese association of librarians, archivists and documentalists, sent an open letter to the Portuguese Government asking to the Government to reconsider its position in relation to art. 13 (the proposal to require online platforms to filter all uploads by their users).
As we have noted before, Portugal is, along with France and Spain, one of the countries that supports the Commission’s plan to force online platforms to install upload filters that would prevent any uses of copyright protected not explicitly approved by rightsholders. Portugal has also been pushing forward amendments proposed by the French Government that would significantly change the way online platforms operate. Under the rules proposed by the French, operating open platforms would only be possible with permission from rights holders.
Portugal can still make it right!
The signatories of the letter acknowledge the negative impact that such proposals would have on the fundamental rights of the Portuguese citizens and on the booming Portuguese ecosystem of startups and entrepreneurs, which is as important to the Portuguese economy as the tourism industry. They, thus, ask to the Portuguese Government to depart from its initial position, which privileges the interests of a small class of commercial copyright holders, and to embrace the future of digital innovation instead.
This open letter is yet another reminder that copyright policy cannot be based on the interests of commercial rightsholders alone and a reminder that it is important to challenge the positions of national governments on this important issue (see this helpful overview by MEP Julia Reda for other governments that need to be reminded that we need copyright rules that embrace the future instead of the past).
Today the Copyright working group of the Council is meeting for the first time under the new Bulgarian presidency. The agenda consist of discussions about articles 11 (press publishers right) and article 13 (upload filters for online platforms) and it appears that the Bulgarian Presidency is planning to push ahead on both of them in line with the one sided approach taken by the Estonian presidency. In the light of this meeting Pirate Party MEP Julia Reda has released a video featuring a number of MEPs from across the political spectrum speaking out against mandatory filtering of user uploaded content:
In the video the MEPs make it clear that filtering technology that would be mandated under article 13 will be used to limit the free expression of internet users in the EU. They also point out that it is highly problematic to require large corporations to install filtering technology that they will then operate outside of any public oversight and without any ability for meaningful recurse by normal users.
The examples provided by the MEPs in the video are a welcome reminder that it will not be enough to prevent upload filters from becoming mandatory by deleting article 13 from the proposed DSM directive, but that we we need to regulate the application of existing filtering technology and that that we finally need to positively define what rights users have when it comes to re-using existing works to express themselves online.
Today COMMUNIA sent a joint letter to all MEPs working on copyright reform. The letter is an urgent request to improve the education exception in the proposal for a Directive on copyright in the Digital Single Market. It is supported by 53 organisations representing schools, libraries, universities and non-formal education, and also 5 individual educators and information specialists.
The future of education determines the future of society. In the letter we explain the changes needed to facilitate the use of copyrighted works in support of education. We listed four main problems with the Commission’s proposal:
#1: A limited exception instead of a mandatory one
The European Commission proposed a mandatory exception, which can be overridden by licenses. As a consequence educational exception will still be different in each Member State. Moreover, educators will need a help from a lawyer to understand what they are allowed to do.
#2 Remuneration should not be mandatory
Currently most Member States have exceptions for educational purposes that are completely or largely unremunerated. Mandatory payments will change the situation of those educators (or their institutions), which will have to start paying for materials they are now using for free.
#3: Excluding experts
The European Commission’s proposal does not include all important providers of education as only formal educational establishments are covered by the exception. We note that the European lifelong-learning model underlines the value of informal and non-formal education conducted in the workplace. All these are are excluded from the education exception.
#4: Closed-door policy
The European Commission’s proposal limits digital uses to secure institutional networks and to the premises of an educational establishment. As a consequence educators will not develop and conduct educational activities in other facilities such as libraries and museums, and they will not be able to use modern means of communication, such as emails and the cloud.
You can still endorse the letter by sending an email to email@example.com. You can read the full letter below or download the PDF.Continue reading →
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 →
It has been well over a year since the European Commission has presented its proposal for adapting the EU copyright rules to the realities of the digital age. The proposed changes (as flawed as they may be) are part of an agenda to make Europe more competitive and to stimulate economic growth.
The proposal continues to be debated in the European parliament with no real end in sight. In this situation we have taken today’s meeting of the EU Competitiveness Council (which brings together the ministers responsible for trade, economy, industry, research and innovation, and space from the 28 EU member states, as an occasion to write yet another open letter.
We write to you to share our respectful but serious concerns that discussions in the Council and European Commission on the Copyright Directive are on the verge of causing irreparable damage to our fundamental rights and freedoms, our economy and competitiveness, our education and research, our innovation and competition, our creativity and our culture. We refer you to the numerous letters and analyses sent previously from a broad spectrum of European stakeholders and experts for more details (see attached).
Attached to the letter are 29 different opinions, studies, open letters and reports that have been addressed at the EU legislators since the publication of the reform proposal. These include a recommendation co-signed by over 50 respected academics on measures to safeguard fundamental rights and the open Internet in the framework of the EU copyright reform, which points out that:
Article 13 (…) is disproportionate and irreconcilable with the fundamental rights guarantees in the Charter [of Fundamental Rights of the EU]
Article 13 appears to provoke such legal uncertainty that online services will have no other option than to monitor, filter and block EU citizens’ communications if they are to have any chance of staying in business. Article 13 contradicts existing rules and the case law of the Court of Justice.