One of the biggest shortcomings of the discussion on copyright is that most of it seems stuck in a fairly outdated creators vs users dichotomy.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.
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 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 →
After a few postponements, the vote at the LIBE Committee on their opinion on content filtering article is finally happening today. Given the variety of amendments tabled by its members, it is understandable that the MEPs took their time in negotiating common ground. Unfortunately the deletion of article 13 was not an option for the Civil Liberties Committee. So what would be the next best outcome of the vote?
The peculiar fate of LIBE’s draft opinion
LIBE was the last Committee to be granted a right to release an opinion on the current copyright dossier. Following the Committee mandate, it will only opine on article 13 and corresponding recitals as the ones having implications on fundamental rights and privacy of users. In his decent draft opinion, rapporteur Michal Boni stepped away from the content filtering obligations and tried to clean up the mess the European Commission had left MEPs to deal with regarding intermediary liability.
That probably didn’t help him make more friends within the European People’s Party, his own group that in part supports the filtering obligation. However, in a surprising twist of events, Boni’s draft was adopted as part of the final opinion of the Internal Market and Consumer Protection Committee, instead of the compromise language proposed by rapporteur Catherine Stihler and some truly horrific alternative ideas on how to make filtering great again authored by someCommitteemembers.
A compromise by popular demand
This move gave some prominence to the draft, probably a bit more than it needed from the perspective of the LIBE Committee workflow. We can only suspect that the backers of content filtering as the go-to solution to enforcing copyright did not like the fact that a proposal deprived of it gained traction in the Committee where the rapporteur has a seat during JURI Shadows’ meetings. It is quite possible that the rescheduling of the vote had to do with the fact that the draft opinion has as many fans as it has enemies. Continue reading →
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?
Despite ambitious planning, the JURI Committee vote on the Copyright in the Digital Market directive seems increasingly unlikely to happen in 2017. Meanwhile, following the lead of the EPP, ALDE (The Alliance of Liberals and Democrats for Europe) published a new position paper on Copyright in the Digital Single Market earlier this month. ALDE seems to be deeply split when it comes to the question of copyright policy. Perhaps this is why the paper offers a very blurred perspective on how the group’s MEPs will vote in the upcoming votes in the Civil Liberties (LIBE) and Legal Affairs (JURI) committees in the European Parliament.
A blurred compromise to keep everyone happy
While many liberal MEPs are traditionally supportive of less restrictive copyright rules and value the protection of individual freedoms, ALDE’s official spokesperson for the copyright file, MEP Cavada is one of the most outspoken proponents of stronger copyright protection in the European Parliament.
Positions of the political groups in JURI with respect to selected elements of the DSM directive proposal [Source].
The new position paper seems to be an attempt to bridge both positions. Following a somewhat rambling introduction that extensively highlights the need to fight online piracy (which technically is not included in the scope of the DSM directive), the position paper states that attempts to protect copyright online should not infringe users’, consumers’ and citizens’ rights:
ALDE wants to protect copyright online because we need to ensure that creators are fairly remunerated for their creations. In taking measures to ensure this, however, ALDE is not ready to go as far as to infringe users’, consumers’ and citizens’ rights to exercise their freedom of expression online. Just as in working against any unlawful behaviour, online or offline, ALDE will do as much as possible, while maintaining a fair balance of fundamental rights, such as the right of information and the right of free expression.
Unfortunately the position paper leaves it unclear what this would mean for ALDEs position towards article 13 of the Commission’s proposal (which require upload filters for online platforms). Continue reading →