Communia’s bread and butter over the last several years has been advocating for a progressive copyright reform in Europe that will protect users rights and improve the legal situation for both creators and institutions that want to share in the digital age.

After 30 months of working on the reform package, at the end of March the European Parliament voted in favor of the Directive on Copyright in the Digital Single Market. Last week the EU council approved it as well, sealing the deal. Soon the directive will be published in the Official Journal of the European Union. From the date of publication, the Member States of the EU will have two years to implement the provisions contained in the directive into their national laws.

As civil society organisations who’ve been working on the copyright directive re-group to adjust for the opportunities and requirements of the transposition phase at the Member State level, the Creative Commons Summit can provide a timely and useful venue to discuss how CC members and advocates in Europe could work together to ensure that the national implementations do the least harm to user rights and maximise the potential benefits for the commons. There are several sessions that will explore this and related topics around supporting productive copyright reforms.

Here’s a quick preview of some of the sessions we’re interested in, contributing to, or helping lead. Click through for more information, and if you’ll be in Lisbon please join us at these events.

Copyright reform related sessions

How to win the (c) wars?

Thursday, May 9, 9:00am – 10:55am

Despite compelling evidence on the overwhelming evidence supporting fair and flexible copyright exceptions, fair use or its equivalent is politically toxic to many governments. What can we learn from recent failures/obstacles? What do we need to do better?

The State of Copyright Filtering

Thursday, May 9, 12:30pm – 1:25pm

The first part of the session will be an overview of recent policy proposals around the world that seek to mandate online intermediaries to filter content for copyright infringement. The second will be a hands-on look at the filtering systems currently deployed by major web platforms. In understanding the limitations of these tools, we can improve the debate around their use, particularly as lawmakers consider proposals to require web platforms to filter.

Communicating Copyright and Coalition Building – Public Education and Advocacy

Thursday, May 9, 12:30pm – 1:25pm

Copyright law is central to three activities for CC advocates: (1) explaining the function of the licenses themselves and (2) advocating for laws and policies that support the creation of openly licensed materials, and (3) arguing for copyright flexibilities and copyright law reform. However, copyright education and policy advocacy can seem technical and separate from many users and creators core interests. This workshop brings together CC members who have worked to build coalitions around copyright or open policy advocacy topics and discuss successes and failures in public copyright education.

Open Business and the EU copyright reform

Thursday, May 9, 2:00pm – 2:55pm

With the EU copyright reform, many of the thriving businesses that have emerged in Europe over the past 20 years might be negatively affected and many may not even survive. It is now crucial to keep the discussion active and bring these business together so they understand the power they still have to (help) revert these recent political decisions and continue to promote a more open and sustainable business culture, more aligned with the technological progress and social challenges we are facing today (namely, in terms of labor).

The Exceptions Agenda at the World Intellectual Property Organization

Friday, May 10, 1:30pm – 2:25pm

Panel members will include current participants in the World Intellectual Property Organization Standing Committee on Copyright and Related Rights. We will discuss the current plans for work of the Standing Committee on Copyright and Related Rights – including regional meetings in Asia, Africa and Latin America — and how chapters can get involved.

The European Copyright Directive: Past, Present, Future

Saturday, May 11, 10:00am – 11:55am

The opening lecture (“5 Years of EU Copyright Reform – The Good, the Bad and the Ugly”) will trace the copyright reform process back from its origins in 2014 until its conclusion earlier this year and evaluate the impact of the various measures adopted. It will evaluate where we have made progress, were we have suffered defeats and why we have ended up where we have ended up. This session draws on the experiences of COMMUNIA’s five year long involvement in the copyright reform process. In the second part representatives from organisations promoting access to knowledge that have been closely engaged in the European copyright reform over the past years will discuss ways to positively influence the national implementations of the directive. This workshop will provide an opportunity for anyone interested in working on the implementation on the national levels to join this effort and to discuss strategy and the opportunities offered by the implementation on the national level.

Developing Projects for the Copyright Reform Platform

Saturday, May 11, 2:30pm – 4:25pm

At previous summits we’ve worked on sharing information about copyright reform opportunities, wrote the rationale for the platform, and updated our goals and objectives with broad input from the community. This year we’d like to focus on bringing people together to dig into the development of collaborative projects in service of the platform goals and objectives.

Other sessions of interest!

Internet is for the people

Saturday, May 11, 4:30pm – 5:25pm

Tired of apocalyptic scenarios and Black Mirror episodes? Then join us to work backwards from imagining better futures, in which internet is for the people. Let’s kick things off with stating the futures we want and then we will plan ways of getting there. In order to have time for in-depth discussions we will brainstorm, speculate and sketch ideas in small groups. There will be several opportunities to share back and discuss with the whole group.

Strategies for defending the commons and the users

Saturday, May 11, 2:30pm – 3:55pm

The roundtable will discuss the possibility of developing a framework for digital policies that is based around such concepts as the commons, decentralisation, self-determination and public provision of goods.  As a starting point, we will take the experience of our project “Reframe Digital Europe”, in which we have designed such a framework for digital policymaking in Europe. We believe that an alternative, high-level frame is needed to move us away from the market orthodoxy that dominates much of policy debates – not just in Europe, but all over the world.

One size fits no one. Building a strategy for advocacy in a global movement

Saturday, May 11, 4:30pm – 5:25pm

In July 2018, Wikimedia movement launched 9 working groups that have been tasked with developing a strategy for the next 12 years. Advocacy is probably one of the topics that go the most beyond the movement itself and that touch on achieving change benefitting literally everyone. But is is possible to have a strategy that encompasses contexts that are open to citizen voice and those that are not? Can the variety of political and non-political methods form a cohesive tactics? Are we ready to charge free knowledge with the potential to change the world?

The post Preview: Creative Commons Summit and copyright reform appeared first on COMMUNIA Association.

The purpose of the refreshed directive is to promote the use of open data and stimulate innovation in products and services in the Digital Single Market. The directive says Member States should approach the re-use of PSI according to the principle of “open by design and by default.”

Communia has been active in the discussion on the legal framework for re-use of public sector information in the EU for many years, producing position papers in 2012, 2014, and 2018, and providing feedback to the recast proposal in July 2018. We’ve supported changes that would expand the scope of the directive, and pushed for increased legal clarity around aspects such as standard open licenses for PSI. The final Directive addresses some of our concerns, but after it is formally approved by the Council of the EU, it will be up to the Member States to implement the recast directive rules into their national laws. Transposition must be completed within two years.

Below we discuss a few pieces of the directive we’ve been following.

Article 8: Standard licenses

Article 8 states, “In Member States where licences are used, Member States shall ensure that standard licences for the re-use of public sector documents, which can be adapted to meet particular licence applications, are available in digital format and can be processed electronically. Member States shall encourage the use of such standard licences.” Standard licenses, as defined in Article 2, means “a set of predefined re-use conditions in a digital format, preferably compatible with standardised public licences available online.”

The nod to standard open licensing is a step in the right direction. The directive says, “Any licences for the re-use of public sector information should in any event place as few restrictions on re-use as possible, for example limiting them to an indication of source.” The Commission should continue to push for liberal open licenses for the sharing of open data and public sector information (as they’ve even done internally with an updated policy for sharing Commission documents), because if Member States remain unclear about which licenses are acceptable for application to PSI, it could create confusion or interoperability problems. The European Commission’s 2014 guidelines provided a decent baseline for Member States, and recommended using Creative Commons 4.0 licenses or the CC0 Public Domain Dedication for the sharing of PSI. Communia urged the Commission to codify these guidelines, and also ensure accurate licensing metadata across PSI and open data portals that reflects those licensing options. The updated PSI Directive reaches for this ideal, but it’ll be up to the Member States to fully implement standardised, permissive open licensing requirements.

Article 9: Practical arrangements

Article 9 discusses practical arrangements such as the development of tools and online portals that make it easier for users to find and re-use open data and PSI. In relation to open licensing, it is important that search tools and repositories properly mark datasets and other documents with the appropriate license metadata, otherwise, users won’t be able to find and know how they can re-use a particular resource. For example, on https://www.europeandataportal.eu/ there are about 50 license options listed, including non-standard licenses, or standard open licenses with different spellings of what appears to be the same license. It will be important for Member State and EU-wide portals to ensure correct implementation of standard open licenses, and provide education to PSI publishers and re-users alike.

Article 10: Research data

Article 10 outlines how publicly funded research data has been included within the scope of the updated directive. It obliges Member States to “support the availability of research data by adopting national policies and relevant actions aiming at making publicly funded research data openly available (‘open access policies’) following the principle of open by default and compatible with FAIR principles.” This is a welcome expansion of the PSI directive and could help ensure — alongside various other EU policies promoting open access to research — improved re-use of publicly funded scientific data. While the provision is right to include important exemptions for personal data protection and security, other considerations such as “intellectual property rights,” “knowledge transfer activities,” and “legitimate commercial interests” will surely prevent at some PSI from being re-used. As described at TechDirt, it could now be “permissible for companies and academics to invoke “confidentiality” and “legitimate commercial interests” as reasons for not releasing publicly-funded data … Clearly, that’s a huge loophole that could easily be abused by organizations to hoard results.”

Article 12: Exclusive arrangements

The 2013 PSI directive update expanded to cover museums, archives, and libraries (including university libraries), and the current recast is claimed to “limit the conclusion of agreements which could lead to exclusive re-use of public sector data by private partners.” However, the rules on exclusive arrangements, particularly as they relate to cultural heritage institutions and the private companies they contract with for activities like digitisation, doesn’t seem to uphold the principle of broad re-use of cultural works considered PSI under the directive. Article 12 states, “where an exclusive right relates to the digitisation of cultural resources, the period of exclusivity shall in general not exceed ten years.” Apparently this exclusive giveaway to restrict re-use “might be necessary in order to give the private partner the possibility to recoup its investment.” The text claims that this window of exclusivity be “as short as possible, in order to respect the principle that public domain material should stay in the public domain once it is digitised.” It’s an insult to the public and our publicly funded cultural heritage institutions that private companies engaged in digitisation should be permitted to control access to re-use of these works for 10 years (or even longer), possibly keeping digitised works that should be in the public domain under private control.

Coda: Database rights

An important clarification in the final directive text is the provision that where databases fall under the scope of the updated PSI Directive, the public sector body responsible for the database may not use the Database Directive to prevent or restrict the reuse of documents. It’s a good (and long overdue) revision.

As we’ve seen, the recast of the PSI Directive takes positive steps to expanding re-use potential for publicly funded open data. But as usual, the devil will be in the details as Member States soon begin to transpose the directive into the national legislation. When they do, they should look for ways to ensure as broad re-use as possible by supporting standard open licenses, building repositories and portals that make it easy for users to find and re-use PSI, and limiting the exploitation of carve-outs by private entities who want to skirt the rules and keep publicly funded open data in the dark.

The post European Parliament Approves Updated Directive on Open Data and Public Sector Information appeared first on COMMUNIA Association.

But here we are now years later in the thick of the trilogue negotiations, and the EU legislator is finally trying to figure out what to do about Article 11. Similar to Article 13 and content filter, we expect that the final compromise text of the directive will include some version of the press publishers right.

The waivable press publishers right

Our long-held view remains: Article 11 should be removed from the copyright directive. The provision is patently harmful to journalism, access to information, and the digital single market. The option to make the press publishers right waivable is simply one way to slightly improve the press publishers right if deletion is impossible. If the negotiators can’t be convinced by the mountains of research, empirical evidence observed in prior trials, and near universal public opposition to this unnecessary right, then the legislator must do everything it can to mitigate the negative effects that would be faced by news publishers and news seekers in the EU.

One of the worst aspects of Article 11 is that it applies whether publishers want it or not. As written by Creative Commons recently, the press publishers right “would undermine the intention of authors who wish to share without additional strings attached, such as creators who want to share works under open licenses […] forcing publishers who use CC to accept additional unwaivable rights to receive payment violates the letter and spirit of Creative Commons licensing and denies publishers the freedom to conduct business and share content as they wish.”

The new press publishers right and commons

CC wrote that if including some version of Article 11 is unavoidable, it should include protections for works under open licenses, or in the public domain. For instance, the Council text included a provision that said, “When a work or other subject-matter is incorporated in a press publication on the basis of a non-exclusive licence, the rights […] may not be invoked to prohibit the use by other authorised users [or] works or other subject-matter whose protection has expired.”

The concerns of publishers

Small and medium-sized publisher are worried about the effects the unwaivable press publishers right will have on their operations too. In October the European Innovative Media Publishers sent a letter to the trilogue negotiators outlining how they will be harmed if Article 11 is adopted. They’ve also launched a petition that calls for the deletion of Article 11, or at least the introduction of mechanisms that would “reduce some of the collateral damage to small and medium-sized publishers.” The signatories believe that having their press publications incorporated into news aggregators and other online search tools obviously helps drive traffic to their content, without the need for requiring other payments from aggregators or news agencies. From their petition:

The introduction of a neighbouring right in Germany and Spain make it harder for us to grow online, reach new audiences and develop new markets. They create new barriers for entry for publishers to develop online. In Spain, we are even deprived of control over our own content, and obliged to charge via a collecting society, whether we like it or not. […]

We adamantly believe that any publisher’s right must give publishers the choice to consent to the sharing of their content online. Aggregators, search engines and other online services drive valuable traffic to publishers’ websites, particularly smaller or local ones; and this traffic referral creates huge opportunities to generate revenue through advertising.

Thus, one way to reduce the collateral damage of Article 11 is to make the press publishers right waivable. Even Google, which has basically threatened to shutter Google News throughout Europe if Article 11 passes, is now advocating for the ability of publishers to waive the press publishers right should it make its way into the compromise version of the directive. Google says, “the copyright directive should give all publishers the right to control their own business models and destiny by giving them the choice to waive the need for a commercial license for their content.”

The post A Waivable Press Publishers Right Would Be Less of a Disaster appeared first on COMMUNIA Association.

MEPs voted 318-278 to deny JURI’s request to enter into direct negotiations with the EU Member States and the European Commission, which would have finalised the directive behind closed doors. Instead, yesterday’s Parliament vote will permit all 751 MEPs to table amendments to improve the copyright proposal, beginning in early September.

The vote unfolded on the heels of a massive outpouring of support from nearly a million people calling for a better copyright reform that upholds freedom of expression and users rights, and doesn’t simply capitulate to the demands of a small cohort of corporate rights holders pushing for Article 13 and Article 11.

The outcome rejects the binary rhetoric (and sometimes outright lies) spread by some MEPs and incumbent rights holders that the fight around Article 13 is simply a fight between Big Content and Big Tech. By denying JURI’s fast track on its committee proposal, the Parliament clearly has recognised the importance of many other stakeholders in the debate around the copyright reform, including the rights of users and the public.

MEP and IMCO Vice-chair Catherine Stihler said it best:

There are real concerns about the effect of Article 13 on freedom of expression, raised by experts ranging from the UN special rapporteur David Kaye to the inventor of the World Wide Web, Sir Tim Berners-Lee.

And there are real concern voiced by our citizens. Just yesterday I received a petition signed by almost a million people against the JURI committee mandate.

And although there is consensus about the goals behind this law, huge controversy still exists about the methods proposed. Something’s not right here. We owe it to the experts, stakeholders and citizens to give this directive the full debate necessary to achieve broad support.

Yesterday we won, but the fight is far from over. Now that the full Parliament will get an opportunity to suggest improvements to the copyright proposal, we need to redouble our efforts to fix the most egregious parts of the directive, including the harmful link tax and upload filters. But we can also resurface several other proposed changes for which we’ve been advocating, including important edits to improve Article 4 (education exception), Article 3 (text and data mining exception), and other provisions.

Thank you to the countless individuals, civil society groups, academics, libraries, creators, digital rights organisations, and others who have shown incredible support and resilience in fighting for a balanced copyright proposal. The work to #SaveYourInternet continues, and we’ll be there.

The post Victory for internet users as European Parliament snubs Voss’ copyright mandate appeared first on COMMUNIA Association.

While we support efforts to ensure a level playing field between online platforms and businesses through the enforcement of competition and consumer rules, we believe that the introduction of a new European neighbouring right will have a nocent and injurious effect on citizens’ access to quality news and information.

Ever since the Commission released its original proposal for a Directive on Copyright in the Digital Single Market, we’ve been arguing that introducing a new ancillary right for press publishers is a terrible idea. We’ve advocated that the press publishers right should be removed from the proposed directive. Not only is the mechanism ill-suited to address the challenges in supporting quality journalism, it would have the effect of decreasing competition and innovation in the delivery of news, limit access to information, and create widespread negative repercussions for related stakeholders.

As already shown by example in Germany and Spain, a press publishers right will be completely ineffective in promoting quality journalism or getting reporters and authors paid, and it will have massive negative repercussions on access to information for everyone online.

We are not alone. A variety of groups have long warned about the dangers of adopting the press publishers right, including 169 academics, 25 European research centres, 145 civil society organisations, 9 news agencies, and publishers themselves.

As we’ve said, Article 11 is one of the few areas where a real compromise has already been identified: that is, the approach presented by former Rapporteur MEP Comodini that would rely on a presumption that publishers are the rights holders, thus making it easier for these entities “to conclude licences and to seek application of the measures, procedures and remedies.” There is even research solicited by the Parliament itself that recommended exactly that. It seems this reasonable approach has not been seriously considered since Voss took over the copyright reform docket.

The negotiating mandate agreed upon by the Council a few weeks ago does nothing to fix the worst parts of Article 11. The Member States have maintained the introduction of a new ancillary copyright for press publishers. In a small improvement of the Commission’s proposal the new right would now last for a maximum of 2 years and would not apply retroactively.

It’s encouraging to see so many MEPs stand up to say “enough is enough.” It’s time to delete Article 11 once and for all. Contact your MEP using Change Copyright or Save The Link. Tell them to follow the lead of their colleagues and dump the press publishers right!

The post 104 Members of Parliament agree: It’s time to dump the #LinkTax appeared first on COMMUNIA Association.

The Commission’s evaluation study confirms some of our suspicions that the sui generis right is doing little to increase the production of databases in the EU. The report notes, “the effectiveness of the sui generis right, as a means to stimulate investment on databases, remains unproven and still highly contested” (p. ii). Perhaps not surprisingly, the report shows a split between the views of database producers and users. Whereas users argue that the confusion and overall ineffectiveness of the sui generis right means it should be repealed, some database makers take the opposite view, claiming that the sui generis right “is an effective means to protect databases which is often used alongside other means of protection, such as contractual terms, copyright and technological measures” (p. ii).

The evaluation of the Database Directive

To recap the issue, the study is about Directive 96/9/EC on the legal protection of databases (Database Directive). The Directive came into force on 27 March 1996. It attempted to harmonise the copyright rules that applied to original databases, and also created a new sui generis right to protect non-original databases on which major investments have been made by database makers.

Last year the Commission launched a public consultation on the application and impact of the Database Directive. Communia responded to the consultation, and published a policy paper with recommendations for the future of the Database Directive. We argued that even though the Directive has successfully harmonised the legal protection of databases with regard to copyright, there is no clear evidence that the sui generis right has improved the interests of businesses or improved EU competitiveness by increasing the production of databases. And the introduction of the sui generis right has increased the complexity and confusion for database producers as well as users.

Our recommendations included the following:

• repeal the sui generis database right;
• harmonize the limitations and exceptions provided in the Database Directive with the Infosoc Directive and make them mandatory;
• if it is not possible to fully revoke the sui generis right, the Commission should amend the Database Directive to introduce a system whereby producers of databases must register to receive protection under the sui generis right; and
• set a maximum term so that there cannot be perpetual extensions of database protection.

Exclude public sector data sets from the Database Directive

The study observes that many respondents to the consultation — including users and research bodies — “think that [the] sui generis right clashes with PSI directive … [and] that publicly-funded databases should be excluded from the sui generis right protection as official works under the copyright regime” (p. 120). The report concludes:

There is strong evidence that there is no coherence, a clash or no clarity or uncertainty as regards the relationship between the Database Directive or at least the sui generis right and the PSI directives and open access policies. The sui generis right is seen by many as a barrier to innovation and knowledge exchange and thus to economic growth as research and public data cannot be reused either at all (if refusal to license), or less fast or at a greater cost (p. 121).  

The authors of the report suggest that one possibility for intervention would be to remove the protection of the sui generis right for public bodies. This is aligned with the recent proposed revisions to the PSI Directive (released on the same day as this study), which includes a specific clarification that where databases fall under the scope of the PSI Directive, the public sector body responsible for the database may not use the Database Directive to prevent or restrict the reuse of the data.

Repeal the sui generis right? What is possible?

Regarding the future of the sui generis right, the report states, “The Commission may want to consider abolition. There is no evidence that the sui generis right has had a positive effect. There is evidence that it causes problems. There is evidence that it is not needed in the US” (p. 126). At the same time, the study recognises that such abolition “may be as daunting if not more than in 1996 because there are far more Member States and it will also be more costly than keeping the sui generis right as Member States will have to remove it from their law and then the EU will have to invoke another Directive or Regulation to harmonise parasitism and the sui generis right was meant to codify/replace parasitism in the first place” (p. 126).

In our earlier policy paper we called for the sui generis right to be eliminated altogether, with the fallback option being that the right should only be made available to those database producers who have registered for it. That way it would ensure that only those entities who actually need (or truly want) the right would get it. The study considers the recommendation provided by Communia, Creative Commons, Wikimedia, Copyright4Creativity, EDRi, and others to introduce a formality such as registration for database makers to receive the sui generis right.

The report recognises that this is indeed an legally-workable proposal: “Such a registration system would be entirely possible under international law, as the rule against the use of formalities in Article 5 of the Berne Convention applies only in relation to copyright aspects of databases” (p. 71).

Finally, the report comes upon a solution similar to what we recommended in our policy paper and response to the consultation:

Rather than abolishing the sui generis right, the European Commission might reflect on the advantages of (and any objections to) the following course of action:

1. Making the right available by registration;
2. As an EU-wide right;
3. Tailored so as to be balanced, with an array of exceptions equivalent to those conferred in relation to copyright generally;
4. Under an EU Regulation (so as to avoid the divergences that emerge in implementation);
5. With pre-emptive effect on national unfair competition law (so that, in the applicable field, one must register or have no protection) (p. 139).

The sui generis right has not stimulated the production of databases. Instead it has thwarted the legitimate interests of users to access information compiled in databases by creating a confusing legal environment in which users do not know if (or how) their uses are subject to the sui generis right. If full repeal of the sui generis right is not available (or would cause more difficulties), then the registration approach — combined with the harmonisation with copyright limitations and exceptions — is the reasonable path to take.

The post Database Directive Study: Options for Neutralising the Sui Generis Right appeared first on COMMUNIA Association.

The letter is critical of the compromised proposed by the Bulgarian Presidency and calls upon COREPER to continue the discussions on the copyright reform. We ask for COREPER not grant the Bulgarian Council Presidency a mandate to negotiate with the European Parliament. From the letter:

We are deeply concerned that the text proposed by the Bulgarian Presidency in no way reflects a balanced compromise, whether on substance or from the perspective of the many legitimate concerns that have been raised. Instead, it represents a major threat to the freedoms of European citizens and businesses and promises to severely harm Europe’s openness, competitiveness, innovation, science, research and
Education. […]

With so many legal uncertainties and collateral damages still present, this legislation is currently destined to become nightmare when it will have to be transposed into national legislation and face the test of its legality in terms of the Charter of Fundamental Rights and the Bern Convention. We hence strongly encourage you to adopt a decision-making process that is evidence based, focussed on producing copyright rules that are fit for purpose and on avoiding unintended, damaging side effects.

The signatories of the letter include national organisations from across 25 EU Member States, representing human and digital rights groups, media freedom orgs, publishers, journalists, libraries, scientific and research institutions, educational institutions including universities, creator representatives, consumers, software developers, start-ups, technology businesses, and internet service providers. They repeat and amplify the voices raised previously to express their deep concerns about the artificial sense of urgency created by the Bulgarian Presidency.

(This week, two other important open letters were published: 169 professors of law and academics urge to oppose the new press publishers right. 55 European organizations do the same: “Enough is enough”).

The post 145 Organisations Tell Member State Ambassadors: There’s Still Much To Fix on EU Copyright Reform appeared first on COMMUNIA Association.

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.

Another ask to Parliament

Last week, Communia joined 27 organisations in a letter to the Legal Affairs committee asking them to improve the exception for text and data mining. Specifically, we called for the committee to 1) broaden the scope of the article so that it permits TDM by anyone, 2) support the provision that ensures that contractual terms restricting the use of the exception will be deemed unenforceable, 3) clarify that technical protection measures cannot be used to restrict the ability for beneficiaries to exercise their rights under the exception, and 4) add a provision to allow datasets created for the purpose of TDM to be stored on secured servers for future verification.

A progressive TDM exception can support science and DSM at the same time

A recent article in Nature explores the potentially negative consequences of the EU copyright reform on open science, including the implications of extending the press publishers right to academic articles (terrible idea, by the way), and the challenges posed by the upload filters to research repositories.

The article also explains that the copyright exception to permit TDM across Europe could be seen as a silver lining to the other more protectionist measures of the reform—if it would actually be expanded to include commercial beneficiaries.

The Commission’s original proposal was supposed to be a copyright reform that promotes scientific research, but also expands the EU digital single market. But so far, the TDM provisions don’t adequately address the incredible opportunities to kickstart European-grown technologies, processes, and discoveries. Without a more progressive TDM exception that incubates investment and innovation in these sectors, startups, firms, and partnerships that do not fit neatly under the narrow exception will leave these EU lands for greener pastures with more permissive and supportive legal environments for TDM.

The post Proposed Council compromise on TDM: still not good enough appeared first on COMMUNIA Association.

But we shouldn’t have been surprised when MEP Axel Voss came out with an even worse plan for the press publishers right. This week MEP Voss released his proposal for a compromise on Article 11, and the changes he is proposing are even more radical and more broken than anything we’ve seen thus far.

Expanding the scope to cover facts

First, Voss proposes to expand the scope of beneficiaries of Article 11 from to cover not only press publishers, but also news agencies (who aggressively lobbied for being included in the scope of Article 11 late last year). But in doing so, he introduces the risk of inappropriately granting copyright – like protection to facts and compilations of basic information. This is a dangerous extension of the scope of exclusive rights that would endanger the right of access to information. It is especially appalling since even the founders of the “modern” European copyright system wisely choose to make sure that news of the day and facts cannot be exclusively claimed: The 1986 Berne convention explicitly states that copyright shall “not apply to news of the day or to miscellaneous facts having the character of mere items of press information”.

Mandatory remuneration

Perhaps the most extreme change is that press publishers and news agencies would be granted (or saddled with?) an “inalienable right to obtain an fair and proportionate remuneration for such uses.” What does this mean? It means that publishers would be required to demand payment from news aggregators and other users.

There are several problems with this approach. First, it’ll just prompt aggregators to only include content from publishers with whom it’s financially viable to work with. Small publishers or journalism startups would not be worth it for the aggregators to worry about, so they just wouldn’t enter into agreements with them at all. This doesn’t bode well for improving access to information, for ensuring diversity of the press, or in the prospect of boosting young businesses via online channels.

Second, the inalienable right directly conflicts with publishers who wish to share freely and openly use Creative Commons licenses. An unwaivable right to compensation would interfere with the operation of open licensing by reserving a special and separate economic right above and beyond the intention of some publishers. For example, the Spanish news site eldiario.es releases all of their content online for free under the Creative Commons Attribution-ShareAlike license. By doing so, they are granting to the public a worldwide, royalty-free license to use the work under certain terms. Forcing publishers who use CC to accept additional inalienable rights to be remunerated violates the letter and spirit of Creative Commons licensing and severely limits them in their freedom to do business.

Links aren’t taxed…unless they are

Voss’ text includes a provision that the press publishers right “shall not extend to acts of hyperlinking which do not constitute acts of communication to the public,” and includes in the recitals an extended note of the recent CJEU judgments on the issue. But there’s a big disconnect in simply adding the text above, and understanding the situation on the ground. As MEP Felix Reda explains,

“Links today almost always automatically include short parts of the article, such as the headline (either because it is part of the web address itself, or because the link is shown with an automatically-generated preview). Because the proposed right would protect even headlines, these links would necessarily be communicating protected content to the public. Therefore, the exception will not apply to them.”

This is not a workable compromise, delete Article 11

It is no real surprise that MEP Voss pays no attention to the one reasonable idea of how to fix the mess of Article 11. By now it is clear that MEP Voss has his very own definition of the term “compromise”. With regards to Article 11 this is especially unfortunate since this is one of the few contentious issues where a real compromise between the proponents and opponents of the new right has been identified: The approach presented earlier by MEP Voss’ predecessor MEP Comodini (and also contemplated in the Estonian presidency) that would rely on a presumption that publishers are the rights holders, thus making it easier for these entities “to conclude licences and to seek application of the measures, procedures and remedies.”

In the absence of such a compromise Article 11 should be deleted. It will restrict access to information, doesn’t contribute to supporting quality journalism, and will do nothing to grow the digital single market. Many (likely most) publishers and news producers don’t want it. And research commissioned by the European Parliament itself says it won’t work. Voss’ “compromise” is a perverse, empty bargain.

The post MEP Voss doubles down on worst elements of Article 11 appeared first on COMMUNIA Association.

The same goes with Article 11— the provision that would create new rights in press publications and allow press publishers to control digital uses of even the smallest snippets of their content. We’ve advocated that the press publishers right should be removed from the proposed directive. Not only is the mechanism ill-suited to address the challenges in supporting quality journalism, it would have the effect of decreasing competition and innovation in the delivery of news, limit access to information, and create widespread negative repercussions for related stakeholders.

Instead, the Bulgarian “compromise” doubles down on the Commission’s original idea and ignoring most of the positive protections offered by some members of Parliament and the earlier Estonian draft.

First, the Bulgarian position removes the following text associated with Article 11: “This protection does not extend to acts of hyperlinking when they do not constitute communication to the public.” The public interest community has warned that Article 11 could be used to censor links, but policymakers in favor of Article 11 brushed off these concerns. Now with this language erased, it’s full speed ahead for rights holders to attempt to control how links are used throughout the EU.

Second, the compromise modifies the text to include that “information society service providers” could be subject to the press publishers right. This could be interpreted as an expansion of those types of platforms that are subject to the right, although it’s good to see that the Bulgarian proposal leaves intact the text that academic and scientific publishers specifically are excluded from the scope of the right (unlike the flawed ITRE opinion).

Third, the proposal does not include the option presented earlier by MEP Comodini (and also contemplated in the Estonian presidency compromise) that would rely on a presumption that publishers are the rights holders, thus making it easier for these entities “to conclude licences and to seek application of the measures, procedures and remedies.”

Fourth, the Bulgarian compromise alters the term of the press publishers right from 20 years to 10 years. Considering the incredibly short useful life of news stories and much other content that would be subject to the press publishers right, shortening the term to 10 years meaningless. It’s sort of like making a compromise that it would be disgusting to drink milk that expired two months ago, but drinking milk that expired only one month ago is just right!

Finally, one good aspect of the proposal is the inching toward a more reasonable approach to not grant copyright-like rights where none should exist. The text states, “As the protection granted to publishers of press publications under this Directive should not go beyond the protection granted in Union law to the authors of the works contained therein, other extracts of press publications which do not reach a minimum level of originality should not fall within the scope of the rights provided for in this Directive.”

The Bulgarian consolidated presidency compromise proposal is disappointing—to say the least. Despite overwhelming evidence that it’s a universally bad idea that won’t accomplish what supporters say it will—and instead will create massive problems for access to information and journalism—Article 11 continues to maintain (and seemingly gain) traction. What a shame. Like Article 13, it should be deleted.

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