The letter expresses concerns that the proposed Article 17 guidance endorses the use of automated content blocking by online services even though it is clear that this will lead to the violation of fundamental rights. It also warns that implementations of Article 17 based on the proposed guidance will violate established principles of EU law.

In this context the letter highlights the need for meaningful safeguards for legitimate uses of content uploaded to online platforms, and stresses the need for a robust redress mechanism for users. Summarising the consultation responses submitted by the various signatories, the letter highlights the importance of ensuring that uploads that are not manifestly infringing must remain online until a human review has taken place. The letter further stresses the importance of involving users’ organisations when setting technical parameters that are used to determine if an upload is manifestly infringing or not. 

The letter further highlights the need for full transparency of (automated) content removals and the ability for users (and user organisations on their behalf) to take actions against the abuse of the measures introduced by Article 17 of the DSM directive.

Finally, the letter also expresses support for the Commission’s clarification that Article 17 constitutes a “lex specialis” to the provisions of the InfoSoc Directive which provides Member States with maximum flexibility to include user rights preserving authorisation mechanisms in their national legislation.

You can read the full letter including the list of signatories here.

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As we said in our initial analysis, we were very happy to note a clear commitment of the Commission to maintain the delicate legislative balance of Article 17 that reflected many of the constructive contributions that have been made by stakeholders across the spectrum during the dialogues. In general, we consider the Commission’s proposal a step in the right direction and this is reflected in our response to the consultation. Unsurprisingly, organisations representing rightholders have a completely different reaction to the proposal and have already started a campaign to convince the Commission into abandoning its approach.

Steps in the right direction

While we think that there is substantial room for improvement (as we have outlined in our responses to the individual questions), we are supportive of the key elements of the proposed guidance. From our perspective, these are:

• The clarification that Article 17 constitutes a “lex specialis” to the provisions of the InfoSoc Directive and that Member States should include the notion of ‘authorisation’ for the lex specialis ‘act of communication to the public’ in Article 17(1). This approach provides Member States with maximum flexibility to adapt their national legislation to the specificities of their national legal systems.
• The recognition that the guidance should recall that the objective of Article 17 is authorization. Given this objective, the guidance should explicitly endorse forms of authorization other than licenses, including remunerated exceptions.
• The clarification that the “uses under exceptions and limitations” that must not be affected by Article 17 not only cover the exceptions explicitly mentioned in Article 17(7) but also all other exceptions that Member States may have implemented under Article 5 of the InfoSoc directive. We also welcome the suggestion made by the Commission that member states should consider implementing additional exceptions (namely the incidental use exception), to ensure an as high as possible level of harmonisation of user rights.
• The clarification that Member States must not mandate the use of technology or impose any specific technological solutions on service providers to comply with their obligations under Article 17.
• The explicit recognition that the complaint and redress mechanism established by Article 17(9) is not a sufficient safeguard for user rights and that both 17(7) and 17(9) must be implemented into national laws to ensure that legitimate uses of content will be protected from deletion at the time of upload.
• The inclusion of a mechanism for the practical application of Article 17(4) in compliance with Article 17(7) that includes the requirement that uploads that are not “likely infringing” must remain online while the uploads are under review.

A crucial omission

This last element of the proposed guidelines is where it becomes problematic. From our perspective, it is unacceptable that the criteria for determining if the “likely infringing” standard is met should be agreed between rightholders and service providers, without representation of users, whose fundamental rights are at stake.

Defining the technical parameters must be a part of the dialogue and the Commission should propose initial parameters based on the input of all stakeholders. Furthermore it must be possible for users to act against platforms that repeatedly remove or block legitimate content, including the ability to challenge parameters that result in structural over-blocking.

Room for improvement

In addition, our response identifies a number of other issues where the proposed guidance needs to be improved:

• The mechanism for the practical application of Article 17(4) in compliance with Article 17(7) appears to focus on the development of criteria to try to identify legal uses of protected content under exceptions and limitations to copyright, but fails to propose safeguards to prevent the removal of legal uses of content for which the uploader has a license or which is in the public domain. This issue should be addressed through a combination of pre-flagging and public databases of public domain and openly licensed content.
• The guidance foresees that rightholders would need to file a takedown request pursuant to Article 17(4)c to challenge the outcome of the human review. The parties should not be able to challenge that decision by initiating another in-platform procedure. Instead, either party must be able to refer the outcome to the out-of-court dispute resolution mechanism or to the courts.
• We welcome the proposal that the guidance should include transparency requirements. However transparency requirements should apply more broadly to technical parameters, outcomes of complaints procedures as well as ownership claims. Robust transparency requirements will be essential for understanding the impact of Article 17 on users rights and on the policy objectives it is supposed to serve.
• Finally our response notes that the guidance should include more emphasis on the measures against abuse of the mechanisms introduced by Article 17 by bad-faith actors or parties that are structurally negligent. Without such measures, implementations of Article 17 will open the door for structural abuses of user rights.

It is now up to the Commission to analyse the feedback it has received and draw up the final version of the guidelines. It is clear that it is facing criticism from multiple fronts (in addition to the complaints from rightholders we have also seen critical responses from digital rights organisations such as EDRi and the EFF). It will be interesting to see in how far the Commission will be able to defend its overall approach (that would provide meaningful safeguards for user rights) against the mounting political pressure applied by the rightholder lobby.

As we have observed before, many of the same rightholders who are now crying foul-play are the very same organisations that have been trying to undermine the stakeholder dialogue from the start. After almost a year of largely constructive discussions in the stakeholder dialogue it would be devastating to the credibility of the Commission if rightholders would succeed with their destructive strategy.

The post A step in the right direction: Our response to the targeted consultation on the Article 17 guidance appeared first on COMMUNIA Association.

While we have been rather sceptical after the end of the six meetings of the stakeholder dialogue meetings, we are pleased to see that the initial views shared by the Commission express a genuine attempt to find a balance between the protection of user rights and the interests of creators and other rightholders, which reflects the complex balance of the provisions introduced by Article 17 after a long legislative fight.

In the remainder of this post we will take a first, high level, look at the Commission’s proposal for the Article 17 guidance, what it would mean for national implementations and how it would affect user rights.

Two welcome clarifications

With the consultation document the Commission takes a clear position on two issues that were central to the discussions in the stakeholder dialogue and that have important implications for national implementation of Article 17.

The first one concerns the nature of the right at the core of Article 17. Is Article 17 a mere clarification of the existing right of communication to the public, as rightholders have argued, or is it a special or sui generis right, as academics and civil society groups have argued? In the consultation document the Commission makes it clear that it considers Article 17 to be a special right (“lex specialis”) to the right of communication to the public, as defined in Article 3 of the 2001 InfoSoc Directive, and the limited liability regime for hosting providers of the E-commerce Directive. 

What sounds like a fairly technical discussion has wide ranging consequences for Member States implementing the Directive. As explained by João Quintais and Martin Husovec, now that it is clear that Article 17 is not a mere clarification of existing law, Member States have considerably more freedom in deciding how online platforms can obtain authorisation for making available the works uploaded by their users. This should mean that they are not constrained by the InfoSoc Directive. Therefore, mechanisms like the remunerated “de-minimis” exception proposed by the German Ministry of Justice that would legalise the use of short snippets of existing works are permitted and covered by the concept of “authorisation” introduced by Article 17.

The second clarification contained in the consultation document deals with the very core of the discussion in the stakeholder dialogue. During the stakeholder dialogue, many rightholders had argued that the user rights safeguards contained in Article 17(7) (that measures to prevent the availability of copyrighted works “shall not result in the prevention of the availability of works or other subject matter uploaded by users, which do not infringe copyright”) should not have any direct consequences as the complaint and redress mechanism introduced in Article 17(9) would provide sufficient protection of user rights. In other words, right holders have argued that, even though no-one disputes that upload filters cannot recognise user rights and would structurally block legitimate uploads, this would be fine because users have the right to complain after the fact. In the consultation document the Commission does not mince words and makes it clear that this interpretation is wrong:

The objective should be to ensure that legitimate content is not blocked when technologies are applied by online content-sharing service providers […]

Therefore the guidance would take as a premise that it is not enough for the transposition and application of Article 17 (7) to only restore legitimate content ex post, once it has been blocked. When service providers apply automated content recognition technologies under Article 17(4) [..] legitimate uses should also be considered at the upload of content.

This clarification reaffirms the core of the balance struck by Article 17: Upload filters can only be used as long as their use does not lead to the removal of legitimate content. In their contributions to the stakeholder dialogue many rightholders have sought to negate this principle and the Commission should be complimented for defending the balance achieved through the legislative process. This is even more important since this means that the Commission is also taking a clear stance against the incomplete implementation proposals currently being discussed in the French and Dutch parliaments that, in line with the position brought forward by rightholders, ignore the user rights safeguards contained in Article 17(7).

A mechanism for protecting users’ rights

Now that the Commission has made it clear that any measures introduced to comply with Article 17(4) must also comply with the safeguards established in 17(7), how does it envisage this to work?

In section IV of the consultation document the Commission is outlining a mechanism “for the practical application of Article 17(4) in compliance with Article 17(7)”. This mechanism is structurally similar to a proposal made last October by a large group of leading copyright scholars and to the mechanism we had proposed during the final meeting of the stakeholder dialogue in February of last year. At the core of the mechanism proposed by the Commission is a distinction between “likely infringing” and “likely legitimate” uploads:

… automated blocking of content identified by the rightholders should be limited to likely infringing uploads, whereas content, which is likely to be legitimate, should not be subjected to automated blocking and should be available.

The mechanism outlined by the Commission would allow that “likely infringing content” could be automatically blocked (with the ability of users to challenge the blocking afterwards). In case of uploads including works that rightholders have requested to be blocked and for which platforms are unable “to determine on a reasonable basis whether [the] upload is likely to be infringing”, platforms would have to notify the uploaders and give them the possibility to assert their rights and overrule the automated filters. In this case the upload stays online until the disputed upload has been reviewed by the platform. If after requesting information from the rightholders and after human review the platform comes to the conclusion that the upload is likely infringing, then it would still be removed. If, on the other hand, the platform comes to the conclusion that it is likely to be legitimate, then it will stay up (both rightholders and users keep the ability to further contest the outcome of the review by the platforms).

This mechanism correctly acknowledges that “content recognition technology cannot assess whether the uploaded content is infringing or covered by a legitimate use” and gives users the ability to override some decisions made by upload filters. In doing so the Commission’s proposal hinges on the differentiation between “likely infringing” and likely “legitimate” uses. Unfortunately, the consultation document fails to further specify under what conditions uploads should be considered to be “likely infringing” (both our proposal and the academic statement proposed that automatic blocking would only be acceptable in cases where infringement is “obvious”). The consultation documents provide the following three illustrative examples:

the upload of a video of 30 minutes, where 29 minutes are an exact match to a reference file provided by a rightholder, could likely be considered an infringing one, unless it is in the public domain or the use has been authorised. On the other hand, a user generated video composed by very short extracts, such as one or two minutes of different scenes from third party films, accompanied by additional content such as comments added by the user for the purpose of reviewing these scenes could be more likely to be legitimate because potentially covered by an exception such as the quotation exception.Similarly still images uploaded by users which match only partially the fingerprints of a professional picture could be legitimate uploads under the parody exception, as they could be ‘memes’, i.e. new images created by users by adding elements to an original picture to create a humoristic or parodic effect.

Although these examples are well chosen, three examples are far from enough to guarantee that the mechanism outlined by the Commission will provide sufficient protection from over-blocking.

This is made even worse by the fact that the Commission goes on to suggest that “the distinction between likely infringing and likely legitimate uploads could be carried out by service providers in cooperation with rightholders based on a number of technical characteristics of the upload, as appropriate”. From our perspective it is clear that unless user representatives also have a role in determining the technical parameters, the whole mechanism will likely be meaningless.

But in principle the approach outlined in the Commission’s consultation seems suitable to address the inherent tension between the inevitable use of automated content recognition technology to comply with the obligations created by Article 17(4) and the obligation to ensure that legitimate uses are not affected. It is a clear signal to Member States that in implementing Article 17 they need to protect user rights by legislative design and not as a mere after-thought.

And a few shortcomings

Apart from the lack of definition of “likely infringing” the consultation document contains a number of additional weak spots that we will address as part of our response to the consultation. While the mechanism outlined in the consultation document can safeguard uses that are legitimate as the result of falling within the scope of exceptions and limitations, it includes no safeguards to address other structural failures of automated content recognition systems. This includes the wrongful blocking of works that are openly licensed or in the public domain. Preventing the blocking of such works can best be prevented by giving users the ability to mark (or in the terms of the German proposal “pre-flag”) them as being legitimate from the start.

Another aspect where the Commission’s proposed guidance needs to be strengthened are sanctions for false copyright claims by rightholders. Merely stating that “Member States should be free to define sanctions” seems insufficient to prevent Article 17 from structurally being abused by parties making wrongful claims of ownership.

Similarly, while it is welcome that the consultation document highlights the benefits of transparency for users, it does not go further than considering the possibility “to encourage Member States to put in place an exchange of information on authorisations between rightholders, users and service providers” and to “recommend that Member States encourage online content- sharing service providers to publicly report on the functioning of their practices with regard to Article 17(4).”

The consultation remains open for reactions (in principle limited to organisations participating in the stakeholder dialogue) until the 12th of September. Together with other user and digital rights organisations we will continue to stress the importance of including substantial protections for user rights in the Commission’s guidance. The first views presented by the Commission as part of the consultation are an important step into this direction. They clearly show that the Commission intends to use its ability to issue guidance as a means to uphold the legislative balance of Article 17. In light of this, Member States (especially those who in their desire to implement quickly have abandoned this balance) would be well advised to wait for the final version of the Commission’s guidance before adopting their implementations.

The post Commission consultation on Article 17 guidance: User rights must be protected at upload appeared first on COMMUNIA Association.

Hungary: The importance of the pastiche exception

Last month the Hungarian Ministry of Justice and the Hungarian Intellectual Property Office (HIPO) published a consultation proposal on the transposition of the DSm directive into Hungarian law.

Hungary is one of the EU member states that currently does not have an exception for parody, caricature or pastiche in their Copyright Act. Article 17(7) of the DSM directive requires all Member States to “ensure that users […] are able to rely” on exceptions or limitations authorising use “for the purpose of caricature, parody or pastiche”. Consequently Hungary must introduce such an exception as part of the implementation of the directive. The consultation proposal identified two different options to meet this requirement:

• an exception allowing “anyone to use any work for the purposes of (…) parody by evoking the original work and by expressing humour or mockery” (Option A), or
• an exception allowing “anyone to use any work for the purposes of (…) creating a parody, caricature or pastiche” (Option B).

In our submission to the consultation (Hungarian, English) we pointed out that Option A, by omitting caricature and parody, fails to properly implement the DSM directive and that therefore the Hungarian legislator should go with Option B. Option B, in line with our longstanding position on exceptions and limitations in the EU copyright framework, recommends to closely follow the language of the exception contained in Article 5(3)(k) of the Information Society Directive. By taking over the wording of the prototype exception and leaving the interpretation of the concepts of parody, caricature and pastiche to the courts, Option B takes full advantage of the policy space that is available to Member States and enables the harmonization of these concepts across the EU. This is especially important since in the context of Article 17, the concept of pastiche will likely become an important safeguard for the freedom of expression.

By settling on Option B the Hungarian legislator can both ensure that the Hungarian implementation complies with the requirements of the directive and set a positive precedent for other Member States who seek to implement the directive in a user rights preserving manner.

The Netherlands: User rights safeguards must be part of the package

In the Netherlands the proposal for a law implementing the DSM directive has been introduced into Parliament on the 11th of May. While the Netherlands has been one of the steadfast opponents of Article 17 during the discussion on the European level, the national implementation proposal fails to implement key provisions of the directive that are aimed at protecting users rights. It is now up to the Dutch Parliament to amend the law to ensure that it meets the requirements of the directive and protects freedom of expression from overblocking caused by automated filters.

Together with Bits of Freedom and supported by Vrijschrift.org, Open Nederland and Wikimedia Nederland, we have written a letter to the Members of the Dutch Parliament, providing them with a list of recommendations to improve the implementation law. These include:

• The imposition of a legal requirement on online content-sharing service providers to ensure that their collaboration with rightholders does not result in the blocking or removal of user uploads that do not infringe copyright, for example because they are covered by an exception or limitation or because copyright has expired.
• The introduction of sanctions for the repeated abuse of upload filters by anyone claiming rights in works that they do not own.
• The introduction of further clarifications of the definition of online content sharing providers in line with the language of Recital 62 to create more legal certainty for platforms that do not play an important role in the online content market.

These additions will be crucial to ensure that the Dutch implementation of the directive reproduces the balance between the rights of users and rightholders contained in the directive. As the Dutch implementation law allows the government to establish further rules based on the guidelines to be issued by the Commission, the final impact of the implementation law remains to be seen. In the meanwhile we will work with legislators to maximise the user rights safeguards contained in the directive.

Given that the Netherlands is the country that is the farthest in the implementation process, it will also be important that the Dutch legislator sets a positive example for implementing the directive. This includes implementing all parts of the legislative compromise found by the EU legislator after almost three years of intensive legislative wrangling.

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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 background of the study hinges on the assumption that “illicit use of copyrighted material reduces revenues of rights-holders and thus their incentives to produce content.” (p. 19). As our friends at EDRi are pointing out, this assumption is one of the underlying motivations for the Commission’s deeply flawed crusade against open online platforms. So what does the research show? From the report (our emphasis):

In 2014, on average 51 per cent of the adults and 72 per cent of the minors in the EU have illegally downloaded or streamed any form of creative content […] In general, the results do not show robust statistical evidence of displacement of sales by online copyright infringements.” (p. 7)

This result is not shocking. Many online content providers are finding that users will pay for content when that content can be conveniently accessed at a fair price—hence the significant growth of popular online film and television streaming services like Netflix. But this is not the narrative that the Commission wishes to promulgate, as it doesn’t fit their worldview. Or more accurately, it doesn’t align with the interests of the incumbent content industries, who, as we’ve argued, want nothing more than “to minimize the impact of the fundamental changes brought about by digital technologies and the internet on legacy business models.”

One assumes that the findings from this study would have been a useful input into the Commission’s proposal for the Directive on Copyright in the Digital Single Market. And surely it would have been interesting to creative sector economists, the startup and technology communities, consumer rights organisations, civil society advocates, and the public at large. Instead, the Commission pushed ahead and introduced restrictive copyright reforms that blindly tries to stop something, which according to research commissioned by the Commission itself is not a problem.

This incident makes a few things crystal clear: 1) the Commission has confirmed it has no interest in pursuing evidence-based policymaking, and 2) freedom of information laws are an increasingly vital tool by which to shed light on the shady workings of some public institutions.

The post Commission pushes inconvenient copyright research down the memory hole appeared first on COMMUNIA Association.

The Directive aimed to remove existing differences in the legal protection of databases by harmonising the rules that applied to copyright protection. In addition it wanted to safeguard interests of businesses and users alike, namely the investment of database makers, and ensure that the legitimate interests of users of information contained in databases were secured. 

Even though the Directive has successfully partially 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 and users alike nor is there convincing evidence that the sui generis right has improved EU competitiveness by increasing the production of databases. The 2005 evaluation conducted by the European Commission showed that there are no clear indications that the sui generis right helped to create a stronger EU database market.

In our opinion the European Commission should:

• 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;
• set a maximum term so that there cannot be perpetual extensions of database protection.

The post Repeal the sui generis database right appeared first on COMMUNIA Association.

The 2819 responses collected by Copyright 4 Creativity show a very clear picture. According to C4C, 96% of the respondents indicated that the introduction of new rights for publishers (either in the form of an ancillary copyright for press publishers or of a generic neighbouring right for all publishers) would have a strong negative impact on publishers, authors and other rightsholders, educators, researchers, online service providers and end users. This is a pretty resounding NO! to the misguided notion that the problems of the publishing sector can be solved by creating rights out of thin air.

Open Media, the organisation behind the Save the Link campaign, gathered more than 35.000 signatories (including 9937 from the EU) supporting the following statement:

a new ‘neighbouring right’ limited to [press] publishers and the creation of a new neighbouring right covering publishers in all sectors, will each have a strong negative impact on consumers, end-users, and EU citizens.

Now both C4C and Save the Link have both targeted internet users who are critical of an expansion of copyrights. It is therefore not really surprising that that these number show strong opposition to the introduction of new rights that provide publishers and other rights holders with more control over the internet. However, it is relatively hard to imagine that the other responses that the commission has received will change the overall picture of strong opposition to the idea of a neighbouring right for publishers.

While we have seen a strong alignment between the responses of publishers and authors in previous consultations, there are indications that publishers are pretty much alone in their support for such a new right (and as we have pointed out before there are of publishers who are against it as well). The European Writers Council ,which represents 433.000 creators has come out strongly against granting new rights to publishers, stating that:

the EWC opposes any new legal instrument granting neighbouring rights to publishers

In the same vein, the International Federation of Reproduction Rights Organisations (IFRRO), which has traditionally always been a supporter of stronger copyrights, has not submitted a response to the consultation. Instead IFRRO has issued a statement in which they go to great length to avoid speaking out in favor or against such a right. Given that both authors and publishers are represented among IFFROs membership, this is another indication of the strong opposition among authors against such a right, who interpret it as an attempt to further redistribute revenues from authors and other creators towards publishers.

It will be very interesting to see all responses to the consultation, but based on these initial observations it seems to very unlikely that the consultation will provide any justification for introducing new rights for publishers. If publishers turn out to be the only group of stakeholders who are in favor of a new right for publishers, then this consultation should bury this dangerous idea once and for all.

The post Internet users and authors say “no!” to more rights for publishers appeared first on COMMUNIA Association.

Why are these issues important for you?

As we’ve written before, ancillary copyright is good for no one. Everyday Internet users and consumers of news and articles would then have a harder time finding the news and information they were looking for, and would potentially face more constraints in quoting, linking to, aggregating, or otherwise using works protected by a new ancillary right for press publishers.

Even more worrying is adopting additional rights on top of a copyright system that is fundamentally broken. This is neither contributing to the Commission’s objective of modernizing the EU copyright framework nor adapting it to the challenges of a fast-evolving digital environment. Creating new rights (which are next to impossible to retract) is not a suitable method for managing the relationship between different market segments and the public. The ancillary copyright will cause substantial collateral damage to education and access to knowledge.

Our answers to the Commission’s survey reflect the role of COMMUNIA as a non-profit organisation that defends the public domain and advocates a copyright system that benefits users, creators, educators, researchers and cultural heritage institutions.

As to freedom of panorama, we believe that public spaces are part of the commons and something we all can use and benefit from. We should all be allowed to take and share photos of public objects in public places. Without such a right, access to our shared culture will be further restricted by rights holders. If we want to champion our collective European cultural legacy, supporting freedom of panorama is a good step in the right direction.

We encourage you to read our previous articles:

• COMMUNIA response to Commission’s consultation on ancillary copyright and freedom of panorama
• Freedom of Panorama – can we be satisfied with only non-commercial use?
• Ancillary Copyright: bad for both end-users and creators
• How additional rights for publishers will hurt education and access to culture
• Ancillary Copyright, Publishers’ Right, Link Tax: a bad idea under any name
• Short videos explaining ancillary copyright and freedom of panorama
• European Commission wants feedback on ancillary copyright and freedom of panorama

Make your voice heard!

It’s important that the Commission hears from you! Be sure to submit your responses to the survey by 15 June. There’s also a helpful answering guide that can be found at http://youcan.fixcopyright.eu/.

The post Your voice counts – only 12 days left appeared first on COMMUNIA Association.

Ancillary copyright for publishers

It will come as no surprise that we oppose the creation of a new neighbouring right for publishers. Doing so would have a strong negative impact on all the audiences identified in the questionnaire, including publishers, authors, journalists, researchers, online service providers, and users.

For the majority of publishers, it would establish an unnecessary (and often unwanted) additional right that they would have to deal with, and could even make it harder for them to grow and develop innovative business models. And perhaps more to the point, the experiments with ancillary rights for press publishers in both Spain and Germany did not result in increased revenues. Instead, it likely decreased the visibility (and by extension, revenues) of their content—exactly the opposite of what was intended.

It would undermine the intention of authors who wish to share without additional strings attached because the right could be interpreted as unwaivable. We’ve seen that the implementation of a remunerative performance right undermines the ability of the author to share works under Creative Commons licenses. Adopting a new neighbouring right for publishers would likely have a similar effect.

Adopting a new neighboring right for publishers would harm journalists who rely on information-gathering and reporting tools like news aggregators, services like Google Alerts, and social media. Journalists would encounter additional hurdles in finding and using news and information they need to do their jobs. They would find that these existing news products and services will likely be disrupted, their prices increased, or even discontinued altogether.

It would have significant negative consequences for researchers and educational institutions by adding an unnecessary layer of rights that will make it more difficult for educators and researchers to understand how they can use content as part of their education and research activities. It could also increase costs to institutions for licensing fees, and even exacerbate the increasing disparity in the quality of education provided across member states.

Creating a neighbouring right for publishers would add unnecessary obstacles for online service providers, including cultural heritage institutions and aggregation platforms such as Europeana.eu—who are already suffering from the complexity of rights and the costs of rights clearance.

Finally, it would create additional barriers for users and online information-seekers. In addition, these users would potentially face more constraints in quoting, linking to, aggregating, or otherwise finding and using works. Many users that rely on curated news aggregators like Google News, or even RSS readers or other apps that reproduce snippets of content from news articles. If an additional right for publishers is established, users would find that these existing news products and services will likely be disrupted, their prices increased, or even discontinued altogether (as we’ve seen in Spain with Google News). Popular social networking apps and websites used by hundreds of millions of people could be negatively affected too.

Adopting additional rights on top of a copyright system that is fundamentally broken is neither contributing to the Commission’s objective of modernizing the EU copyright framework nor adapting it to the challenges of a fast-evolving digital environment. Creating new rights (which are next to impossible to retract) is not a suitable method for managing the relationship between different market segments and the public. The (online) publishing sector is evolving at a rapid pace, and intervening in the relations with a static and blunt instrument is expected to cause substantial collateral damage to education and access to knowledge.

Freedom of Panorama

The sharing of photos taken in public places is an example of an everyday activity that should not be regulated by copyright. We know that the lack of harmonization around the freedom of panorama has negatively affected users who wish to share images of public architecture and sculpture on sites like Wikipedia. We support the adoption of a broad right for freedom of panorama, and it should apply to both commercial and noncommercial uses of images of architecture, sculpture, and other objects in public spaces. The exception should be mandatory across the EU, and should cover both online and offline uses.

Make your voice heard!

It’s important that the Commission hears from you! Be sure to submit your responses to the survey by 15 June. There’s also a helpful answering guide that can be found at http://youcan.fixcopyright.eu/.

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