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.

But the key is that, as imperfect as it is, it truly represents a compromise between the extremities of the “delete” and “make platforms liable for all the content they host and make available” positions. That is, if compromise is understood not as an exercise in survival of the fittest in negotiating, but a genuine effort to give everyone something. The rightholders would have their special provision on the perceived value gap, the users would be able to post without a fear to be censored preventively, and the platforms would be liable only in the cases envisioned in the e-Commerce Directive.

When we look at it this way, it becomes clear why IMCO saw the LIBE draft as a way to reconcile various sides of the debate. It would be good if, given the array of positions presented by its members, the LIBE Committee also decide that language of the draft opinion written by MEP Boni that way.

There is also another definition of compromise that says it is the art of making everybody equally unhappy. Rapporteur Boni’s version of article 13 will achieve exactly that. It is hard to speak for the rightholders, but as far as the users go, this is the amount of misery we can live with sharing and communicating online.

The post Before the Civil Liberties Committee vote: will reason win? appeared first on COMMUNIA Association.

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?

It is the “celebritisation” of culture that happens (forgive me if this is not a real word, it should be though). Those regular people that are not “serious creators” are increasingly more occupied with personal branding. Today it is crucial how we are seen and how we want to be seen through our photos or cultural tastes that we display on social media. Sometimes the simplified 140-characters brand becomes more important than who we really are as complex human beings. This is a psychological as well as a cultural phenomenon.

For professional creators, or those who try to make a living from their creativity, the result is a bit different and it is neatly described in a Fair Internet campaign video. Fair Internet is an initiative to secure an unwaivable right to remuneration for performers. The organizers state that such provision is needed because performers in general have difficulty negotiating with big labels. Only the biggest celebrities are able to get good conditions and the rest end up with crappy contracts. Why then the campaign does not advocate for a better negotiating power against the labels is a mystery, but nevertheless the diagnosis is correct.

Celebritization turns creativity into a zero sum game – you only win if you are more powerful than others.

If we care so much to be correctly perceived we become more risk-averse, as individuals and as the society. This is a reputation economy and reputation is unlike money or property: if you lose it, it is much harder to get back. And a risk-averse society becomes an obedient society.

Society becomes customers, creativity becomes content

A risk-averse society becomes increasingly easy to sell things to. Low risk is good for business – any business, creative industry included. Our universal non-adventurous appetite for culture and entertainment can be easily satiated with mass-scale creativity.

The majority of creation accessible through the mass culture is a product of a risk averse-business model. Meanwhile creativity is about taking risks and questioning the aesthetic, cultural or political status quo.

Think about it. This simply cannot work! And that is also a thought shared by revered artists such as Martin Scorsese. “Cinema is gone,” he said in his recent interview. It took him a lot of effort and foreign funding to make his latest movie “Silence”. If even Scorsese says so, we have a problem. Yes, we all love SFX-loaded superhero movies, and the “Blade Runner” sequel is good. But let’s face it, in mass culture we are happy to buy endless versions of the product that we already liked before.

Risk, lies, and videotapes

Fortunately, unlike pre-internet technologies and business models built around them, the digital world offers us possibilities of low-risk investment in creation. Some people make memes for fun, some make a career out of it, and we end up with the proliferation of creativity. This amazing playground lets people decide what they want to do with their skills and test it quickly on their audience.

New technologies offer these new possibilities but to the old business models that mourn the death of videotape, they also offer new fields of exploitation of their rights.  And if we adopt this angle of looking at the current reform of the copyright framework, it suddenly becomes clear that as proposed by the European Commission it is not a random sample of loosely connected interventions.

The copyright reform is a uniform approach making sure that new fields of exploitation of IP rights are defined and ready to be cashed in on.

Take the upload filters for online platforms as an example. That would be a state-of-the-art level of control over creativity online. It gives rightholders a tight grip on a lot of uploaded content. Since it will filter out any user-generated content that includes (incidentally or intentionally) any third-party song, movie or photo, the only thing that will stay on the internet will be what the business wants to offer us.

Existing large-scale businesses will have an enormous advantage here. They already have the capacity to produce original content (or buy licenses), which would be the only thing allowed on the internet. We will be stuck with a limited choice between “Harry Potter and the Chamber of Secrets” and “Harry Potter and the Mystery of a Sock-Eating Washing Machine”, if that is any choice at all.

And of course, there will be audacious creators out there who will invest and deliver great original artworks. And yes, some of them will be scooped out by the big business in search of new faces and brands. And guess what – they will be offered a crappy contract.

The only freedom we should not exercise right now regarding the copyright reform is the freedom not to care.

The post Paradigm lost? How creativity is weaponized against us appeared first on COMMUNIA Association.

The hard line and the blurred line

The Parliamentarians affiliated with EPP have not presented a unified line in the reform debate, especially if it comes to content filtering (article 13 of the proposal). Their positions across various committees have ranged from hardliners such as Angelika Niebler’s, supporters of closing the value gap like Axel Voss, the current rapporteur at JURI, through the balanced position of Therese Comodini, Voss’ predecessor; to rapporteur Michał Boni’s decent draft report at LIBE or Róża Thun’s proposal for deletion tabled at IMCO.

In these circumstances EPP’s attempt to create a common ground is understandable – it is a way to preserve group unity. On the other hand, the exercise can only prove effective if it shaves off the extremist positions: of making the EC proposal even more troublesome for platforms and users as well as of deleting the article.

Positions of the political groups in JURI with respect to selected elements of the DSM directive proposal [Source].

The EPP group line adopted in July 2017 tries to reconcile a need to close the perceived value gap with some arguments protecting fundamental rights. The vision for EPP’s ideal article 13 is to ensure platforms enter into licensing agreements with rightholders to secure a better revenue for the latter.

Harming e-commerce, taking it easy on the filtering?

Similarly to the governments of France, Portugal and Spain, EPP is determined to change the interpretation of safe harbour that shields hosting providers and online platforms from liability for infringements committed by their users. In their words:

Platforms should engage in ‘communication to the public’ in the copyright sense when they are actively and directly involved in allowing users to upload works, in making works available and in promoting works to the public. They should not fall under the safe harbour clause of Art. 14 of the e-Commerce Directive and are therefore not exempt from copyright liability.

Creating this “exception from the exception” should not mean general monitoring obligation, as far as EPP is concerned. It is important because article 15 of the E-Commerce Directive prohibits general monitoring obligations for platforms and other hosting providers. At the best possible reading the EPP’s stance could mean a “no” to content filtering (that in practice requires general monitoring). According to EPP article 13 should also respect freedom of expression and ensure users can effectively appeal against decisions about removal of content.

On face value this looks like a decent common ground to introduce a notice-and-takedown procedure that would encompass the practice of removing content that infringes copyright after it is published, while letting users complain about it. But we need to remember that EPP Parliamentarians have been quite vocal through their amendments across all committees on how the filtering could help creators. Many like the proposal that the European Commission had put on the table and that describes a textbook example of general monitoring of content. So, sadly, there are still ways in which the EPP votes could uphold this concept, against their own group line.

1. Sticking to the idea that the platforms’ role is to prevent infringements before they actually happen

The EC proposal stipulates that Information Society Service Providers (ISSPs or platforms) need to take measures to prevent infringing content from becoming available. In practice the prevention is only possible to enforce if there is a mechanism that “knows” what users attempt to upload before this specific content is available for other people to see on a platform.

This does not point to notice-and-takedown at all. Notice-and-takedown works post-factum – as any such measure should – allowing taking down content already uploaded and letting the user prove this case was a legitimate use. Any preventive measures are those at the moment of upload. They lead straight into the content recognition technology, without even mentioning it explicitly in the article.

2. Keeping the reference to content recognition technologies

Content recognition technology is bound to be based on general monitoring. General monitoring is not determined upon the interest of the party applying it. Not being interested in the nature or in the substance of legal uploads is irrelevant. Looking for illegal stuff implies that even if an algorithm is “interested” in targeting only infringing content it has to take a peek into all content there is. And that is enough to call this procedure general monitoring.

Talk about how to reward creators, and not about technology

The whole attempt to tackle value gap through the measures envisioned in the proposed article 13 is really about the equity the rightholders want in the added value that the platforms bring to participation in culture, knowledge, or entertainment. This added value comes from both optimizing access to content similar to what we already like as well as from allowing everybody to have an audience, however small or niche it might be.

This goal can be achieved by better contractual negotiations by rightholders, or by getting more users to pay for access to quality material. Or by some sort of an econometric model that would provide a calculation of how much of that added value should go back to creators and artists.

Any indication of technology as a go-to solution for a fairer revenue distribution will inevitably lead to algorithms combing through billions of uploads to extract a few cents per an infringing one. This gain for rightholders will come at a price of a censorship machine ready to turn its Sauron’s eye onto any other type of content, also politically or commercially inconvenient.

The post A couple of ways EPP can go against their own line on copyright with article 13 appeared first on COMMUNIA Association.

Centrum Cyfrowe, a Polish COMMUNIA member, does not usually deal with science fiction, but the ongoing yearlong debate on the copyright reform has unexpectedly directed them towards speculative design in modeling the future. A Future not Made in the EU campaign presents future objects and services that may enhance cultural and educational experience, but their future is uncertain – their utility does depend on whether the copyright reform addresses future challenges properly.

Meanwhile, the law is usually drafted based on the past experiences rather than on recognising future challenges. The longer we are in this debate, the better we can see that looking backwards to regulate participation in increasingly digital culture may result in fatal consequences.

If the authors and contributors to the copyright reform look behind their shoulder while drafting it, we will end up stuck in the analogue era. Specifically, Europe will end up like this. The rest of the world will advance forward.

At the same time, Centrum Cyfrowe is not satisfied with the seemingly unavoidable dystopian context of the debate on technological progress. Tech is neither good nor bad in itself; it is as beneficial as its final application. It can therefore contribute to making the world a better place. We all would like to believe that through technological progress we can touch the future, we can understand it better, and finally we can shape it with the decisions we take today.

How does that relate to the copyright? Copyright underpins almost anything we do online by regulating what sort of content we can access and what not, as well as how and under which circumstances we can make use of it. We experience each day how the possibilities to create, share, and learn expand with new tech. At the same time these opportunities seem to be increasingly limited with the copyright drafted in times when culture, knowledge, or entertainment did not exist without their physical content carriers.

Now that the European Union is occupied with the copyright reform, the time has come to remind decision makers that we want copyright that looks into the future. One that will allow us to create, teach, learn, and participate in culture and entertainment without legal barriers in the digital world.

The future of copyright can be bright. We should all contribute to this outcome. Find out how:

• A Future not Made in the EU campaign
  • DigiAtoms – Bits and atoms are one
  • DigiDermis – Touch the digital for real
  • DigiTutor – A lifelong learning experience

Visuals by Jakub Koźniewski and Marcin Talarek in “A Future Not Made in EU” campaign by Centrum Cyfrowe

The post What will be the “Future Made in the EU” after the copyright reform? appeared first on COMMUNIA Association.

The upload filter is gone, the e-commerce Directive is intact

In a surprising move, the Committee adopted the EPP proposal to include Article 13 as drafted by LIBE rapporteur Michal Boni into IMCO’s opinion. IMCO rapporteur Catherine Stihler supported these amendments over the compromise she had made with other Parliamentary groups: S&D, ECR, ALDE, GREENS and GUE. Since it was quite clear that the deletion suggested by some Committee Members is not an option for this article, it is seems like one of the best possible outcomes that MEP Boni’s proposal has been picked up by IMCO.

Rapporteur Boni’s take on how platforms should cooperate with rightholders offers a rational distinction between entities falling under the scope of Article 13 and those protected by the e-commerce directive exemptions. It also steers clear of content recognition and technological measures as the go-to solutions for shaping that cooperation regarding MEP Stihler’s compromise amendment.

Red line? What red line?

The big surprise of the IMCO vote is the U-turn it took on the issue of new rights for press publishers (a.k.a “the link tax”). Rapporteur Stihler proposal to delete all of Article 11 had gained some traction in the Committee, which resulted in about a dozen other IMCO Parliamentarians also tabling provisions to remove it. In the vote, however, the amendments to delete were almost entirely rejected. The Commission’s version of Article 11 has been adopted with some tweaks: hyperlinking would not fall under the new right, and the new law would not be applied retroactively.

Despite previously demonstrated support for deletion of Article 11, many of these MEPs did not show up at the Committee session to vote. Their presence could have shifted the outcome. Instead, the absurd idea of paying publishers for the possibility to generate traffic to their content has been validated in the IMCO opinion.

Better online access to cultural heritage and protection of the Public Domain

The outcome of the vote is much better for those parts of the proposal dealing with issues faced by cultural heritage institutions. The opinion proposes to expand the new exception dealing with reproductions carried out by heritage institutions as part of their “public interest mission in preservation, research, culture, education and teaching”. It also adds a provision that requires Member States to recognise that once a work is in the public domain, faithful reproductions—including digitisation—shall not give rise to new copyright or related rights.

The opinion also proposes improvements to the articles dealing with out-of-commerce works. In line with requests from cultural heritage institutions, Article 7 now includes a fall-back exception that can kick in when the original licensing mechanism proposed by the Commission does not provide a workable solution. This will enable access to out-of-commerce works in sectors and Member States that lack representative collective management organisations.

Something for the users…

Users got two more things out of the IMCO vote, the first being a  freedom of panorama exception. This had not been included in MEP Stihler’s draft opinion, it seems like a no-brainer to add it. Clearly fighting against such a commonsense provision wasn’t a battle that the backers of creative industry wanted to wage. It has passed without any limitation as to the type of use (commercial or non-commercial), and indeed is the best case scenario for this exception.

The other good outcome is an exception for User Generated Content, which was adopted along the lines proposed by CULT Rapporteur Marc Joulaud. Digital use of protected content would be possible for the purposes of pastiche, parody, criticism, or entertainment, and is not limited to non-commercial cases. It requires that content be legally available, and that the user provide an indication of the source. Should this exception find its way to the final version of the directive, it would be a really good outcome for the users.

… but not all that they could have

The general harmonisation of exceptions, something that seems like a necessity for the Digital Single Market to work, has not been adopted. A bizarre proposal by MEP Philippe Juvin was adopted that destroys any synergies that could make users’ life much easier. If his proposal is retained, it would mean that any content obtained due to one exception could not be used in the context of another exception:

For example, anything digitised under the right to reproduction could not be used under a TDM exception or used freely as part of  teaching activities. This a very substantial weakening of user rights and the principles of the EU copyright framework.

The educational exception, closely followed by COMMUNIA, has been made partially better, but a few problems persist. The scope of the exception includes both digital and non-digital educational activities performed by educational and also cultural heritage institutions. This is broader than the Commission’s proposal, but sadly does not cover nonprofits and other informal education settings. There are still limits with regard to the places and networks where educational uses can take place. Individual licenses will no longer take precedence over the exception, but extended collective licensing schemes will still be in play. Finally, a layer of protection has been added to exclude freely licensed material from the overall licensing schemes. This half-step forward is not adequate to support European education fit for the 21st century.

The whole is less than the sum of parts

Even though there are some considerable gains coming out of the IMCO vote, they mostly leave a bitter aftertaste. The “Boni’s 13” is more an exercise in the ability to reach political compromise than a serious attempt to fix the broken thinking that gave birth to the whole reform package. As much as it may pave the way for a civilised and efficient debate in the LIBE Committee, it is a depressing win.

The U-turn on the link tax could revive the ancillary copyright zombie. We felt it was slowly dying in the European Parliament, especially after its main proponent has left DG Connect. To be sure, the empty seats at the vote today did not help in keeping it out of the IMCO opinion.

Out of all the gains, those for cultural heritage institutions seem to be best defined. The changes to the copyright exceptions give these institutions instruments to take a greater advantage from the digital sphere. The changes in support of users are good, and will go a long way to making everyone feel reassured that engaging in commonplace creative activities online won’t turn them into copyright criminals. But should the compromise on Articles 11 and 13 be sustained across Committees, these rights will be exercised in an online environment continually governed by big global players. These stakeholders are leaving little room for content decentralisation and cultural diversity. So, after the IMCO vote, instead of opening the champagne, we’re breathing a sigh of relief.

The post Internal Market Committee took a vote on copyright. Why does it feel like a loss? appeared first on COMMUNIA Association.

Looking beyond technology

The very good news is that Rapporteur Boni proposes to remove content recognition and all references to the use of technology as a default option from the directive. MEP Boni also explicitly says in his report that the implementation of the agreements should not impose any general monitoring obligations.

Here the report builds nicely on theapproach paved by the JURI’s rapporteur MEP Comodini in her report. The removal of references to technology opens the path to looking for a variety of solutions in negotiating the division of revenues between service providers and rightholders. No doubt that technologies will be employed to verify if content is uploaded legally. But the EU copyright legislation should not require a direct connection between the business discussion on who the revenue should go to and the surveillance of users uploading stuff on a platform.

MEP Boni also proposes to remove preventing the availability of works identified by rightholders from article 13. It further brings the projected reality to current practices, where rightholders are notified if their content is uploaded by users and then decide whether to take it down or let it be. This is really important, as this provision combined with reliance on content recognition creates the danger of automated blocking of anything that has been recognised by rightholders, even if published under a copyright exception.

Making sure E-Commerce Directive stays intact

In a way, LIBE rapporteur is lucky to have been able to see all the opinions grappling with the issue of what sort of service providers would fall under the directive. Building on these perspectives, he offers quite an elegant way to introduce some common sense in the possible future practice of applying article 13.

Those who should conclude agreements with rightholders, according to LIBE rapporteur, are Information Society Service Providers that offer users content storage services, that provide the public with access to the content, and that are not eligible for the liability exemptions under the E-Commerce Directive due to that activity. Recital 38 further explains that they need to actively and directly make works available as well as promote these works to the public to be considered liable under article 13. All the conditions accumulated point at a very specific set of platforms that facilitate and promote user-to-user interaction based on copyrighted content (They basically point at video sharing platforms such as YouTube).

If article 13 is implemented in the shape proposed by rapporteur Michal Boni, those few platforms should conclude licensing agreements with rightholders and ensure protection of works through appropriate and proportionate measures. That sounds more like a good recommendation on fair business practice than a provision that needs to be enshrined in the directive. But in fact this is a way to set a limit on abusing available technologies to the detriment of fundamental rights. In that sense this intervention is well justified by the mandate of the LIBE Committee.

On the other hand, the fact that these conditions would create additional barriers for operators of open platforms cannot be ignored. There is a visible trend to transform the internet from a space of peer-to-peer exchange into a platform that is governed and shaped to accommodate powerful industries. MEP Boni’s concept would perhaps slow these processes but definitely not counterbalance this trend.

Users have a say in defining best practices

In a way the Directive Proposal on Copyright in DSM is evidence to the fact that politicians are willing to give power to private actors. If implemented, the Directive would let private entities define what works and what doesn’t work in putting article 13 into practice. LIBE draft opinion stirs that power balance a bit with adding users’ representatives to the mix. Users’ perspective should always be sought whenever there is a possibility that they will face limitations in exercising their rights.

Rapporteur Boni does not propose to completely change the position of users in the negotiations over revenue flow but he offers some reinforcement. In ensuring user access to court or a competent authority to clarify use under a copyright exception, and in underlining that these are the rightsholders who have responsibility for claims over the use of their works, the opinion provides a basis that user rights matter.

We should pull the plug on this one, but we probably won’t

We still believe that the whole idea for article 13 is wrong from the perspective of users and the sensible way out of it is to delete the article and the corresponding recitals. We also see the internal split in all the Committees and political groups regarding article 13 that makes the win of the nuclear option “delete” politically impossible.

The rapporteur has decided to take a politically constructive path and to offer a more compromise-ready concept. As rational as it is, it is somehow disappointing that the very Committee set to protect fundamental rights is not poised to take a firmer stand.

Read more:

• Draft Opinion of the Committee on Civil Liberties, Justice and Home Affairs on a proposal for a directive on copyright in the Digital Single Market
• Legal Affairs Committee’s leading MEP tries to diffuse the content filter bomb – COMMUNIA analysis of JURI draft report
• COMMUNIA Position Paper on Use of Protected Content by Information Society Providers

The post Last EP Committee opinion on copyright reform balances civil liberties with political reality appeared first on COMMUNIA Association.

A seemingly quick solution to filter whatever the decision makers don’t want users to see is a very dangerous tool in any context. It is an arbitrary approach to the flow if information online and as such it can be used as a censorship machine. This  “automatized conscience” will operate on a very abstract definitions of content that could impair children’s “physical, mental or moral development” or incitement to terrorism, violence and hatred. Humans often argue about what constitutes such incitement with many cases finding their finale in court. How could we trust algorithms with such a dispute?

Fortunately, 17 members of the CULT Committee understood that. Nine of them either do not see the danger or have an unwavering faith in the potency of technology to solve complex societal problems. Hopefully, the AVMSD debate helped CULT Committee see both the danger and the pointlessness of content filtering and they will take a similar decision for a better copyright. After all, in the context of copyright, putting the interest of rightholders before the interest of the public is an even worse reason to employ algorithms as censors.

The post Encouraging! Culture Committee votes against content filtering appeared first on COMMUNIA Association.

The industry-backers

Some MEPs reacted to the copyright reform proposal using a 20th century ordering of the world, where mass-scale creative industries emerged and eventually were consolidated. For MEPS such as Jean-Marie Cavada (ALDE, France) or Angelika Niebler (EPP, Germany) the world has not changed all that much in terms of where important stuff happens. Cavada and Niebler think publishers and other rightsholders produce all the real value, while the internet and new sharing technologies is like a portable TV that  that main purpose of is to constantly rip them off.

Seeing the world like that, it’s no wonder that they mostly approve of the European Commission’s original proposal, and oppose reforms that champion users’ rights, which for the most part they see as legitimizing tech-enabled theft. There is no coincidence that many of those creative industry backers are from France and Germany, countries that built their considerable entertainment industries well before the digital era.

The ill-informed sector

There is also a group of MEPs similar to the industry-backers, but upon closer inspection might be even worse. Whereas the industry-focused MEPs clearly state that traditional  rightsholders are the main source of creative value, this other faction wanders into even murkier waters where they draw ill-informed and potentially catastrophic conclusions for copyright reform.

One area in which this group provides an opinion is on the ancillary right for press publishers. They seem oblivious to the extent of the incredible impact of online access to news, which has been greatly enabled by web search that is flexible enough to look for concepts and associations rather than exact phrases or titles. As proven by research, aggregators help news outlets gain a larger audience. MEPs such as Constance Le Grip (EPP, France) do not understand (or chose not to see) that the business of selling newspapers with a bundle of interesting and boring stuff packaged with ads is over—and won’t be back. It’s not the aggregator’s fault that contemporary readers are choosing better and more targeted mechanisms to search for and receive information and knowledge.

The upload filter concept is equally misunderstood to the point where MEPs fall into the trap where they think that such a mechanism is needed to combat the terrible problem of “fake news”. Virginie Rosiére (S&D, France) believes that content filtering is the same thing as taking down pictures found offensive by particular social media users. Mary Honeyball (EPP, UK) argues that any algorithm put in use makes a platform “active” as opposed to a “passive” online archive (perhaps she would be surprised to learn they use algorithms, too). Her best advice for us is to treat the internet like we treat the analogue world. This is a logic defying approach that we thought we had debunked around the time when Pluto stopped being called a planet for a while.

The 21st century believers

Fortunately there are some JURI members who grasp the revolution that digital technology and the web has brought to creation and access to culture, knowledge, and information. They see that in this ecosystem the value is generated by all actors, including users.

Felix Reda (Greens/EFA, Germany) and Lidia Geringer de Oedenberg (S&D, Poland) both see the Commission’s proposal as unambitious and ill-suited to address necessary changes to copyright that can promote the Digital Single Market while protecting users rights. They understand that even though creators and rightsholders bring much value to the market, there is another type of value created when information is sorted and aggregated. A different type of value emerges when users generate their own content based on somebody else’s creation.

These types of value are functional rather than replaceable, meaning that a news outlet will not generate the same type of value as an aggregator, because well… it is not an aggregator. And a movie studio will not have the same content marketing outreach as do users who create memes based on the original – because it is not a user. But all of these types of value creation are desirable if Europe is support the full potential of the market.

The battle goes on

On the of spectrum of MEPs explored above, Rapporteur Comodini is a 21st century believer who tries to reconcile these different understandings of the source of value in today’s world. It is very possible that the clash will be settled in the heads of those who are now silent and will soon make up their mind which narrative appeals to them most.

It is important to remember that the battle of these narratives will define the future of the copyright law, and the future of the Digital Single Market. At stake is whether Europe will be able to harness technology in a way that does not break the internet and helps creativity grow. This is the right path ahead, lest we fall back into the worn out model where users are mere spectators of the cultural and creative show run by the entertainment industry and publishers. And we will be free to look at it through the “portable tv” of the broken internet.

The post The Legal Affairs Committee meeting on copyright was a clash of civilisations appeared first on COMMUNIA Association.

Filtering is kind of gone

The reading of the proposed article 13 text leaves no doubt that the intent is to remove the upload filter. The reference to “preventing the availability” of content uploaded by users who have no ownership over it is gone from article 13 paragraph 1. The emphasis is on effective and proportionate measures that the information society service providers need to take to ensure that the agreements they conclude with rightsholders are functioning well.

At first sight the amendments proposed for article 13 seem good. What kind of measures should be carried out is left open. It can be really anything that parties decide would work for them, be it some compensation or a share in the revenues the content users upload generates when there are ads on display. Unfortunately, looking into the recitals, it gets more complicated. Ms Comodini proposes no rewrite to recital 39 that would change the fact that the content recognition remains a go-to technology in terms of assessing the rights to uploaded content.

What are the consequences of that? It means that effectively the ISSPs and rightsholders are not encouraged to look beyond tech solutions to address any perceived disparities of income. Rather, the directive legally validates the existing market practice of employing tech such as Content ID to sort out ownership of the content. With her concept Ms Comodini may have closed the gate to filtering uploads but she left the path leading to it basically intact.

Another consequence is that if article 13 had ever meant to make Youtube weaker, by constant relying on tech solutions in settling human disputes, it equips the tech giant with an enormous competitive advantage. After all they already have Content ID.

Liability made clearer

Ms Comodini’s report addresses the very controversial issue of creating a dent in the e-Commerce Directive by introducing a very broad scope of ISSPs obliged under article 13. JURI’s Rapporteur emphasises that the user-uploaded content must be made available to the public actively and directly to fall under the obligations of article 13.

While that restores the liability rules under the e-Commerce Directive, which is a necessary move were the compromise be that article needs to 13 stay, it still leaves room for interpretation where that active and direct mode of operation starts. With the reference to “large amount of content” now removed, it could be probable to see that smaller entities fall under article 13. Also, the unclear relationship with e-commerce safe harbour remains.

Users better armed against big players

Ms Comodini takes users rights under serious consideration, first by proposing the removal of the reference to the upload filters in article 13 , but also by getting rid of the useless redress mechanism that is more a courtesy nod to common-sense justice than any effective measure to unblock what has been unfairly prevented from uploading.

Moreover, she is definitely sensitive to voices stating that the original proposal has no regard whatsoever to copyright exceptions and limitations such as quotation or parody. In paragraph 2a she proposes that member states ensure the users can communicate rapidly and effectively with rightsholders to execute their rights.

This, however, is not unproblematic. Exceptions and limitations are users’ rights and as such they should be the by-default possibility and not merely an option that users can take advantage of however rapidly and effectively. There is no evidence that any existing technology can recognize an application of an exception and the law should not be made based on an assumption that someday it will.

Similarly, it is great to read that the member states should ensure access to a court for the purpose of asserting users’ rights. But despite these well-intended moves, Rapporteur Comodini follows the general direction of the EC proposal that leads to nowhere promising. These interventions bring in state power where the market players cannot handle a civilised dispute. Even after Ms Comodini’s amendments, the intervention will fail to account for user’s rights and it will  lead to even more fragmented responsibility. It is an example of state interventionism that serves short-term gains of large scale players rather than the long-term benefit of the society.

Putting makeup on a corpse

It would be unfair not to commend Rapporteur Comodini for the hard work she put into reconciling the need to keep the spirit of the article with defusing its explosive parts. It is a bit sad that the end result is only slightly better than the original, which is not good enough if there are fundamental rights in question. If anything, Ms Comodini’s exercise proves that even with the best legislative mind article 13 is not possible to be significantly amended. As before, we advocate that the life support on that corpse be finally switched off.

Our  opinions on other aspects of JURI’s draft report:

Legal Affairs Committee Stops Short of Protecting User Rights

European Parliament legal affairs committee pushes for strong exception for text and data mining

JURI rapporteur proposes to fix most egregious flaws of the copyright reform proposal

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The fact that the most controversial articles are not a subject to any improvement by the ITRE draft opinion may of course indicate how the Rapporteur perceives the Commission’s mandate to propose input on copyright. Naturally, the TDM exception would provide an enormous opportunity for the European industry to expand their R&D without looking for an academic partner to benefit from the exception. But is that really all there is in the directive proposal that could benefit the realms of Industry, Research and Energy?

Better education makes better economy

In the information economy, modern accessible education is a cornerstone. Now that across all industries there is an enormous demand for workers that can keep up with developments in technology and knowledge, lifelong learning becomes an inseparable element of any professional career.

The ITRE Committee members should therefore consider widening the scope of the education exception (article 4). It needs to encompass teaching activities that take place outside of traditional classroom education to make sure Europeans can get access to tailored education throughout their lives. The costs of providing education might be more easily covered by big companies or well-off employees, but it could be a heavy burden for smaller enterprises.

Needless to say, these bills are easier to foot in wealthier EU economies. Meanwhile, access to professional and vocational training should be an equalizer for EU countries, and not another reason for deepening the divide between wealthier and poorer EU member states. Widening this exception is perhaps an indirect—but nevertheless vital—interest of the EU economy.

Every industry is a creative industry

In Europe we’ve become used to dividing industries across the digital divide. Some are perceived as traditional systems based in the physical world, while the newest cast is digital economy industries. That division no longer holds true; literally any industry now has the digital face that it needs to operate in the European and global market. Also, industries become, as EUIPO would put it, IPR-intense, which means that intellectual property becomes an increasingly important asset, from patents to designs to marketing.

All that means that ITRE should not ignore the sad shape the copyright reform proposal has taken in the aspects of access to information, the ability to use effective online communication and interact with customers through various platforms.

It would be advisable for ITRE Committee members to look deeper in articles 11 and 13. Both the snippet levy and the upload filter are bad for the flow of information online, not to mention for fundamental rights. If anything, they go against the basic rule of economy: if you increase barriers of entry to the market the first ones to drop off are smaller companies – and they are the soil of Europe’s economy. And both the new tax and the obligation to install filter mechanisms are burdens increasing these barriers. The paradox is that the law targeted at the giants such as Google will wipe out its potential competition and make it stronger.

Is no news good news?

It would be wrong to think that the lack of opinion on these issues in ITRE’s draft means something good. In fact, it only likely reinforces the conservative and outdated approach the European Commission brought under the debate with its directive proposal. By what the opinion does not mention assumes that ITRE approves of all those controversial ideas such as the snippet levy and the upload filter, and stalls the progress midway with access to quality education. It is great that the draft opinion highlights TDM, but at the same time it promotes a narrow perspective on the issue in times when copyright underpins all activities online.

We believe that the ITRE committee can adopt a broader view and introduce far-reaching amendments that encompass the complexity of copyright in European economy. For a start, some inspiration from the IMCO draft could come in handy. Let’s hope members of the committee will use the opportunity to improve their opinion!

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