Before the Civil Liberties Committee vote: will reason win?

Melancholia
Will LIBE kill the filter?
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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 some Committee members.

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

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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Bending over backwards – ALDE wants to ensure online is like the offline

Vergaan van het schip de Vrijheid
Protect online freedom     of expression
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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

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

Strong voice of civil liberties organisations against censorship in copyright framework

Don't censor the internetLicentie

Anyone following copyright debate may have an impression it is all about “money, money, money” (Abba). In COMMUNIA we believe that such an approach shows deep misunderstanding about the function of copyright. Copyright is just one angle of approaching more broader challenge, namely providing a just framework for to access to knowledge, information and culture. A well balanced copyright system is one of the fundamental underpinnings of a knowledge-based society.

Possibly the strongest challenge to such as system is are the proposals for forcing online platforms to filter all content uploaded by their users, put down in article 13 of the proposed Directive on copyright in the Digital Single Market. We have underlined many times before that proposed regulation will have a chilling effect on sharing content, access to information and the the ability to operate open platforms online.

Today, over 50 NGOs (including COMMUNIA) representing human rights and media freedom have send today an open letter to the European Commission President, the European Parliament and the Council asking them to delete the content filter mechanism. This letter comes ahead of a crucial vote in the European Parliament’s Civil Liberties committee, in which the MEPs tasked with upholding our fundamental freedoms will give their opinion on the upload filters that the Commission wants to introduce through article 13. The signatories of the letter, which include many prominent human rights organisations like the Freedom of the Press Foundation, Human Rights Watch and Reporters without Borders, believe that the mechanism introduced through article 13:

  • would violate the freedom of expression set out in the Charter of Fundamental Rights;
  • provokes such legal uncertainty that online services will have no other option than to monitor, filter and block EU citizens’ communications.; and,
  • includes obligations on internet companies that would be impossible to respect without the imposition of excessive restrictions on citizens’ fundamental rights.

If the European Union decides to approve the European Commission’s proposal, this would constitute an unprecedented step towards building an online censorship infrastructure. Similar filtering obligation have previously been rejected in the context of preventing terrorism and hate speech. Continue reading

The European Parliament should be talking about DRM, right now!

Klokkenmakers
Anti-circumvention laws have to be fixed!
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The European Union is currently discussing a reform of its copyright system, including making mandatory certain copyright exceptions, in order to introduce a balance into the system. However, no one, except Julia Reda, is paying any attention to one of the biggest obstacles to the enforcement of copyright exceptions in the digital age: technological protection measures (TPM), including digital rights management (DRM). In this blogpost we will present the reasons why the European Parliament should not lose this opportunity to discuss a reform of the EU anti-circumvention rules.

No balance between anti-circumvention prohibitions and users rights

The InfoSoc Directive incorporates rules regarding the protection of TPM in articles 6 and 7, which do not adequately take into account users rights created by copyright exceptions and limitations. First, Member States are only obliged to guarantee that users can access and use a TPM-protected work in relation to a closed-list of “privileged exceptions”. Beneficiaries of the remaining exceptions are not able to exercise their rights when a work is protected by TPM. Second, only certain privileged users—those who already have legal access to the work—have the right to require the technical means to benefit from the selected exceptions. Finally, the rules that are aimed to protect users do not apply to on-demand online services.

According to the European Parliament’s 2015 impact assessment study, the EU anti-circumvention rules are intend to restrict the exercise of users rights under the exceptions: 

The very narrow scope of application of this mechanism evidences a clear intent of the InfoSoc Directive to restrict considerably the enforcement of copyright exceptions in light of their increased economic impact in the new electronic environment (cf. Recital 44). (pg. I-84)

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New Estonian council compromise proposal: Another missed opportunity for TDM in Europe

De zanderij
The right to read must be the right to mine!
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The Council of the European Union, currently led by the Estonian Presidency, has published an updated compromise proposal regarding Articles 2 to 9 of the Commission’s draft directive on copyright. The Estonian proposal will be discussed among the Member States next week at the meeting of the Copyright working party.

The minor tweaks to the exception for text and data mining offered in this recent draft—as well as the earlier changes suggested in the Maltese compromise proposal from 8 May —are inadequate to supporting research and innovation in the European digital single market.

Where the Commission’s original plan only permits “research organisations” to take advantage of the exception, the new Council’s compromise proposal would extend the beneficiaries to include “cultural heritage institutions.” At first glance this addition would seem welcome because it expands (albeit narrowly) to an additional beneficiary group. But this meager edit ignores the larger concern that citizens and  private sector organisations still will be excluded from the benefits of the exception. As we’ve argued, this is clearly not aligned with the goals of the reform to promote activity in the digital single market.

In addition, the Council compromise proposals do not change the problematic limitation that TDM may only be carried out strictly for “purposes of scientific research.” We’ve criticized the Commission’s short-sighted approach in only permitting TDM to apply to scientific research. Such a restraint will surely decrease the potential impact of novel TDM uses, such as for journalism-related investigations, market research, or other types of activities not strictly considered “scientific research”. Continue reading

EU-Mercosur trade agreement is poor copyright policymaking conducted in the dark

Journal des Dames et des Modes, Costumes Parisiens, fevrier
Users' rights must be expanded
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This week Creative Commons published an analysis of some of the copyright-related provisions contained in the trade agreement currently being negotiated between the European Union and the Mercosur bloc. The EU and this South American sub-regional group of Argentina, Brazil, Paraguay, and Uruguay have been in talks about the free trade agreement (FTA) since 2000. The EU-Mercosur negotiations are situation during a time when several of the affected countries—including Argentina, Uruguay, Paraguay and of course the EU—are involved in a review of their own copyright legal frameworks.

Tabled copyright rules protect powerful stakeholders, ignore public interest

As expected, the copyright provisions of the intellectual property chapter are nothing to write home about. The CC analysis shows that the policy direction suggested by the negotiators would be detrimental to the public domain, creativity and sharing, and user rights in the digital age.

For example, the draft IP chapter recommends a copyright term extension for those countries that don’t already follow the life + 70 term. It upholds more than adequate measures for protection and enforcement of rights, but doesn’t include similar safeguards to protect users rights and balanced approach to copyright. The draft IPR chapter includes prohibitions to circumventing technological protection measures to gain access to a work, as well as  a provision that would prohibit the creation and sharing of technologies that could enable a user to circumvent technological protection measures. You can read the full policy analysis here. Continue reading

Germany to Commission: Article 13 endangers the competitiveness of European enterprises

A woman shouting into a man's ear-trumpet. Wood engraving.
Germany says upload filters may be illegal
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Two weeks ago we highlighted the fact that six EU member states had asked questions to the Council legal service about the legality of Article 13 of the proposed Digital Single Market directive. Yesterday it emerged that the government of Germany also has serious concerns about Article 13 and asked its own set of questions to the Council legal service. As our friends at copybuzz.com point out, this move by Germany adds a lot of weight to the questions raised by Belgium, the Czech Republic, Finland, Hungary, Ireland and the Netherlands before the summer. While the questions asked by the German document more or less mirror the concerns of the other six member states, there are also some important differences.

A lot of the concerns raised by the six member states centered on the relationship between the Commission’s proposed Article 13, user rights granted under exceptions and limitations, and the rights enshrined in the EU fundamental rights charter. In contrast the intervention by the German government seems to be motivated by a different set of concerns. In the introductory paragraph of the document they write (emphasis ours):

We welcome the fact that the Commission has addressed the matter of how to fairly distribute the value created by internet platforms. We must ensure that creative individuals receive fair pay, also if their work is available on the internet. Concurrently, platforms must not be jeopardised in their function as a societal medium of communication. Moreover, it must be ensured that the competitiveness of European enterprises and the freedom of scientific communication are not impaired.

Based on this is seems clear that the German government is primarily worried about the potential negative impacts that Article 13 would have outside the narrow confines of the music industry. The German government is concerned that the Commission, driven by the the music industry’s desire to cripple the liability exceptions of the E-Commerce directive, will undermine the economic basis for much of Europe’s digital economy.

A threat to the digital economy and academic research

Similar to the six member states before it, the German government is not at all convinced that the Commission’s proposal will leave the legal principles established by the E-Commerce directive intact. From the German point of view this is especially worrisome as the liability exceptions apply to many platforms other than the video sharing and social media services targeted by the music industry. And while the music industry is without a doubt an important contributor to the EU economy, so are other sectors that rely on online platforms and the protections granted by the E-Commerce directive (see for example this excellent report by the Open Forum Europe and the Free Software Foundation Europe that highlights how Article 13 would create substantial burdens for collaborative software development in the EU). Continue reading

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