Late last week, the CJEU unexpectedly postponed the Advocate General opinion in the Polish case challenging the fundamental rights compliance of Article 17 of the DSM directive by almost three months. Knowing that the upcoming Commission guidance was discussed extensively at the CJEU hearing on the Polish case in November, the postponement could very well mean that the Advocate General wants to see the document before issuing an opinion.

While the Commission has been hinting at the imminent release of the guidance for a few months now, the timing indicates that the Commission precisely wanted to avoid giving the Advocate General time to study the guidance. This does not bode well for the fundamental rights safeguards the Commission is planning to present. Signals are mounting that the delays are the result of intense behind-the-scenes political wrangling aimed at undermining the user rights safeguards to be included in the guidance. 

That’s why, together with 20 other users’ rights organisations who have participated in the EU stakeholder dialogue on the implementation of Article 17, we have sent an open letter to the Commission, raising our concerns about the handling of the final phase of this process. The letter urges the Commission “not to weaken its guidance through open ended exception clauses that seem to benefit particular rightsholders at the expense of users’ fundamental rights” and stresses that “strong ex-ante fundamental rights protections are necessary to meet the obligation of result to protect users’ fundamental rights.” 

The letter further highlights the fact that, by issuing guidance that substantially diverges from the position taken before the CJEU, the Commission would indicate that it is ultimately lacking the political will to ensure that the required fundamental rights protections will be included in national implementations of the directive.

How did we get here?

The Commission has been working on drafting its guidance since the conclusion of the stakeholder dialogue meetings in February of last year. In July the Commission published a first draft of its guidance as part of a targeted consultation. In its draft, the Commission made it clear that, in order to protect fundamental rights of users and in order to comply with the provisions of the directive, national implementations of Article 17 must contain ex-ante user rights safeguards, that limit the automated blocking of uploads to situations where an upload is clearly (“manifestly”) infringing. 

The draft guidance showed that the Commission was willing to live up to its role as the steward of the complicated legislative compromise embodied in Article 17. While the approach received massive criticism from rightsholders and some Member States, in November the Commission doubled down on this approach in its intervention in the Polish CJEU case challenging the fundamental rights compliance of Article 17. Together with the Council and the Parliament the Commission argued that Article 17 respects fundamental rights because Member States must implement it in a way that ensures that uploads that are not manifestly infringing cannot be automatically blocked. The Commission wanted the CJEU to believe that the upcoming guidance would be based on this principle.

Almost half a year later the guidance is still nowhere to be seen. Yesterday Commissioner Thierry Breton informed members of the CULT committee of the European Parliament that the guidance would be presented “within the next weeks”, but refused to answer a direct question from MEP Marcel Kolaja (from 14:27:55 onwards) if the guidance would “defend the legal interpretation that the Commission held before the CJEU, according to which only manifestly infringing content may be blocked?”. 

This refusal to answer this question must be placed in the context of the larger developments. Over the past few months the final version of the guidance has been the object of intense, behind the scenes, political wrangling between different parts of the Commission. In February, MEPs critical of the principles expressed in the draft guidance held a closed door meeting with Commission representatives and select Member States opposing the Commission’s position. In the following week a high ranking member of the Cabinet of Executive Vice President Magrete Vestager – who oversees this file – received a delegation of rightholder organisations who have been rallying against the principles underpinning the Commission’s draft guidance to discuss the Copyright Directive. 

Calling the Commission’s bluff

In light of these efforts to undermine key elements of the guidance, the mounting delays of the publication give reason to believe that the final guidance will significantly water down the safeguards for users’ fundamental rights in order to please particularly powerful rightsholder groups. If this were to be the case it would significantly undermine the credibility of the Commission, which throughout all of last year had run the stakeholder dialogue in a transparent manner in line with its role as the steward of the legislative compromise embodied in Article 17. 

More importantly, such a weakened version of the guidance would also undermine the Commission’s credibility with the CJEU, who ultimately needs to decide on the fundamental rights compliance of Article 17. Having argued that the upcoming guidance would signal a strong commitment to protecting users’ fundamental rights, any weakening of this position by the Commission would give the Court additional reasons to annul Article 17 (as requested by the Republic of Poland). 

If one assumes that it was the Commission’s intention to issue its guidance only after the opinion of the Advocate General, then the Advocate General has called the Commission’s bluff: By delaying his opinion to July the Advocate General is forcing the Commission to show its hand before issuing his opinion. In this situation the Commission would do well to stick to the principles underpinning its draft guidance and create legal clarity as soon as possible.

The post Open letter on Article 17: Is the Commission about to abandon its commitment to protect fundamental rights? appeared first on COMMUNIA Association.

In the updated policy paper we re-iterate our concerns (a few of them have recently been taken up by a group of Member States in a set of questions to the legal services of the Council), analyse proposals for amending the Commission’s proposal that have been adopted in the European Parliament, and provide a set of recommendations. Our key recommendation remains to delete article 13 from the proposal as it addresses a problem that lacks empirical evidence confirming its existence. Article 13, as drafted by the Commission, would limit the freedom of expression of online users and create legal uncertainty that has the potential to undermine the entire EU online economy. As such it is unworthy of being included in a Directive proposal that is intended to modernize the aging EU copyright framework.

Read the updated position paper below. If you are familiar with the issues at hand and/or the previous version you may want to jump straight to the updated part.

Position paper: EU copyright should protect users’ rights and prevent content filtering

Article 13 of the European Commission’s proposal for a Directive on Copyright in the Digital Single Market attempts to address the alleged disparity in revenues generated by rightsholders and platforms from online uses of protected content (the so called “value gap”). The proposed article attempts to do this by introducing an obligation for “Information society service providers that store and provide to the public access to large amounts of works” to filter user uploads. It would also require these providers to set up licensing agreements with rightsholders.

These proposed measures are highly problematic as they violate fundamental rights of users, contradict the rules established by the E-Commerce Directive, and go against CJEU case law. The measures proposed in the Commission’s proposal stem from an unbalanced vision of copyright as an issue between rightsholders and infringers. The proposal chooses to ignore limitations and exceptions to copyright, fundamental freedoms, and existing users’ practices. In addition, the proposal fails to establish clear rules with regard to how citizens can use protected works in transformative ways—such as remixes and other forms of so-called “user-generated content” (UGC). As a result, a system of this kind would greatly restrict the way Europeans create, share, and communicate online.

The legal uncertainty embedded in the proposal and the omission of protections for users’ rights turn this initiative into an ill-targeted intervention. Furthermore, the lack of proportionality and adequacy of measures proposed pose a dangerous precedent in the European law.

What is proposed in the Directive?

In Article 13 of the Proposal for a Directive on Copyright in the Digital Single Market, the European Commission proposes that information society service providers (ISSP) that store and give access to any copyrighted materials that their users upload must take specific measures to ensure that these materials do not contain other rightsholders’ works. In other words, the ISSPs will need to adopt technology that will effectively recognize and prevent uploads of any content that includes even fragments of videos, music, pictures, and any other type of creation that belongs to someone other than the person sharing it.

The proposal specifies that these content recognition filters will have to be appropriate and proportionate to existing technological advancements, and to the services upon which they will be implemented. The Commission requires transparency in informing rightsholders about the functioning of the filtering mechanism, as well as on the recognition and use of such works.

Finally, the ISSPs would have to provide users with the ability to file complaints, and to use a redress mechanism whenever there is a dispute over how these measures are applied. The ISSPs, however, are not obliged to fulfill any transparency requirements with regard to their users as to the technology used, or how they apply their filters.

The problems with the proposal

1. Effectiveness and proportionality of undertaken measures are highly questionable

The proposal is constructed as if the only way to prevent copyright infringement is to filter user-uploaded content. All content would be subject to the filtering. This would mean that a censorship machine is implemented just in case there is an infringement of copyright. As a result, users’ activity will be constrained before any infringement happens. This approach goes against both fundamental rights and the European law.

Another misconception embedded in the proposal is the approach to how these measures should be overseen. The ISSPs will need to provide “adequate” information on the functioning and deployment of the system to the rightsholders, and also report on recognition and use of protected content.

The proposed requirements for the filtering system do not include any obligation to inform users on how the system functions, or to make rights claims transparent to end users. This leaves users without information necessary to defend themselves in case their use fits one of the exceptions or limitations. It ignores the existing common practice of blocking and/or removing content based on terms of service—as opposed to a specific legal requirement—so the measure may only be partially effective.

2. The upload filters are user-rights blind

Not every unsanctioned use of someone else’s content is an infringement — copyrighted works are regularly used without permission in quotation, parody, for private use, or under another exception or limitation. The filter likely will not recognize these types of uses, and as a result the legal use of protected material will be constrained. This type of a system, combined with an ineffective redress mechanism, will create a chilling effect that will thwart users’ rights online.

From the perspective of European case law, upload filtering goes against existing CJEU rulings, in particular the Sabam v Netlog case. Hosting providers would likely be included in the wide range of online service providers affected by the proposal even though they are explicitly excluded from any broad obligations to filter content in the Sabam ruling. In that case, the CJEU made a point to note that filtering threatens freedom of expression. Filter systems fail to strike a fair balance between copyright and the freedom of providers to conduct business, not to mention the ability of users to secure their personal data.

Within the current technological environment, the content recognition system proposed by the Directive is equal to a “system for filtering information” considered by the CJEU. As such, the Commission’s proposal is in contradiction with the E-Commerce and EU case law.

3. The proposal contradicts the E-Commerce Directive

Recital 38 defines communication to the public as storing and providing access to the public to copyright-protected works or other subject matter uploaded by users. Meanwhile, the E-Commerce Directive notes that where ISSPs provide services that store information provided by a recipient of the service, “Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service”.

It is not clear whether the Commission’s proposal widens the definition of “communication to the public”. More importantly, the proposal introduces liability for hosting services that currently benefit from the safe harbor envisioned in the E-Commerce Directive. The proposal seems to be intended to redraw the boundaries of the safe harbour protections established by the E-Commerce Directive via another Directive and as such is detrimental to the EU rule of law.

4. The proposal fails to define what users can do with protected content

The Commission’s proposal clearly aims at platforms that host so called “user-generated content” (UGC). The emergence of the internet in general—and UGC platforms in particular—have resulted in an explosion of creativity that is fueled by creative expression through the re-use of existing materials.

The European copyright framework does not provide clear and harmonized rules that define how users can re-use protected works when creating remixes and other types of UGC. Introducing filtering requirements to deal with infringing uses on these platforms without first defining what constitutes legitimate uses is harmful to users, and ultimately limits the way internet users in Europe can express themselves online.

Development in the European Parliament

As expected Article 13 has been a focal point of the discussions in the European Parliament. A significant number of amendments have been tabled in all 5 committees that deal with the proposed directive. So far, no clear parliamentary position on the questions raised by Article 13 has emerged.

Before the European Parliament entered the 2017 summer break, IMCO, ITRE and CULT committees adopted positions that propose modifications of the text proposed by the Commission. In the process it has become clear that there is no parliamentary majority for an outright rejection of the flawed approach proposed by the Commission.

Of the three opinions adopted so far, the IMCO committee goes the furthest to address the concerns that we have identified above: it clarifies the relationship with the liability exceptions established by the E-Commerce Directive by restating them. It also removes all references to content recognition technologies (the upload filters) and strengthens safeguards for users.

Even though the IMCO opinion introduces a new mandatory exception for user generated content, it fails to clearly state that the rights the users have under exceptions and limitations must not be negatively affected by measures agreed to between rightsholders and online platforms.

While the IMCO opinion would defuse the biggest problems of the Commission’s proposal, it does so at the expense of proposing legal provisions that make very little sense and are open to all kinds of interpretations that may very well negatively affect user rights in the future.

The changes to the Commission’s plan proposed in the opinions adopted by the CULT and ITRE committees do not contain anything that would meaningfully address the concerns that we have outlined above. Instead they would make the Commission’s proposal even worse.

Recommendations

Article 13 (“Use of protected content by information society service providers storing and giving access to large amounts of works and other subject-matter uploaded by their users”) should be removed from the proposal.

If the EU legislator comes to the conclusion that the existing rules that apply to information society services and the hosting providers should be supplemented by additional legal provisions, there are four important safeguards that must to be taken into account when establishing additional requirements.

First, the EU legislator should safeguard the E-Commerce regime. New legal provisions should clearly separate the entities falling under its scope (and are protected by the E-Commerce Directive exemption) from the ones that fall outside its scope. Legal provisions must not introduce general content monitoring and should be in compliance with CJEU case law. Provisions that try to target infringement of copyright-protected content on hosting services should fulfill the above mentioned criteria and should not prevent users from exercising their rights under exceptions and limitations.

Second, the EU legislator should not mandate the use of specific forms of technology to ensure the functioning of licensing agreements. Legislation needs to be future proof and given the fast pace of technological developments, it should not mandate the use of specific technologies.

Third, the EU legislator should make sure additional requirements placed on online platforms  take users’ rights into account. Any measures employed to settle disputes over the use of copyrighted content by users must respect fundamental rights. Additionally, users should have access to transparent information about the functioning of measures and/or procedures as proposed by the EU legislator to target copyright infringement. This information must be verifiable by the affected users, and users need to have meaningful ways to contest decisions regarding or actions against their uploaded content. Members states should be obliged to ensure access to courts for users whose rights may have been infringed by the measures taken. Finally, users should be represented in any fora which attempts to define best practices for functioning of the agreements and proportionate application of any measures.

Fourth, the EU legislator needs to provide a clear positive definition of the rights available to use existing content. This can be achieved by introducing in the proposed Directive a new, mandatory exception to copyright that allows noncommercial transformative uses of copyrighted works by private individuals, and their dissemination via online platforms. Rightsholders must not be granted any authority to remove or block user uploads that fall within the scope of such an exception, or any other exception.

The post Updated position paper: Article 13 remains a terrible idea and needs to be deleted appeared first on COMMUNIA Association.

We were hopeful that CULT could deliver some helpful (and much needed) changes to the Commission’s proposal, including broadening the education exception, permitting cultural heritage institutions to share their collections online, deleting the dangerous press publishers right, and opposing upload filters for online platforms.

Regarding text and data mining (TDM), we wished for CULT to push for expanding the exception so TDM could be conducted by anyone, for any purpose. Instead, CULT has doubled down on their backward approach to Article 3.

Slight change to ‘scientific research’ definition is pointless

In Amendment 3 to Recital 5, CULT notes that the term “scientific research” should be understood as referring “both to the natural sciences and the human sciences”. This change might be interpreted as beneficial to humanities and social science researchers who wish to be able to leverage the TDM exception in their work, but it doesn’t go nearly far enough. We’ve argued consistently that any constraint on the purpose for which TDM may be conducted would decrease the potential impact of interesting and useful TDM activities, such as for

journalism-related investigations, market research, innovation-related developments or other types of activities not strictly considered “scientific research”. The exception needs to allow TDM for any purpose, not just scientific research (or subsets of scientific discipline).

Beneficiaries must be expanded

The Commission’s proposal includes a TDM exception that would be available only to research organisations that operate on a not-for-profit basis or pursuant to a public interest mission as recognised by a Member State.  CULT offers no meaningful change to the Commission’s plan. As we’ve stated before, the practical effect of this limitation means that the private sector will be excluded from the benefits of the exception. In addition, it restricts the ability to undertake

TDM for groups such as journalists, citizen scientists, social enterprises, civil society organisations and cultural heritage organisations, all of whom stand to benefit from automated data analysis.

Rightsholder compensation inappropriate for TDM uses

Amendment 7 to Recital 13 deletes the existing recital proposed by the Commission:

There is no need to provide for compensation for rightholders as regards uses under the text and data mining exception introduced by this Directive given that in view of the nature and scope of the exception the harm should be minimal.

And Amendment 47 to Article 3 paragraph 4a (new) states, “Member States may provide for fair compensation to rightholders for the use of their works or other subject-matter pursuant to paragraph 1.” There is no need to provide for compensation to the underlying rights holders (typically, science publishers). Since the research has already been paid for, changes proposed by CULT unnecessarily opens the door for increasing costs of scientific research. There is no harm to the rights holders, especially since TDM is generally considered to be a non-expressive use of content.

Deleting research content doesn’t serve science

In Amendment 5 to Recital 10, CULT says:

To prevent unjustified dissemination of the content necessary for text and data mining, research organisations should be allowed to store and preserve in a secure manner the reproductions of works or other subject matter obtained pursuant to the new exception, for the time needed to perform the research. Reproductions of works or other subject-matter made for the purpose of text and data mining should be deleted once all the activities necessary for the research have been carried out.

It’s already well-understood that research organisations are required to secure the contents of their repositories against copyright infringement. But mandating that these research organisations delete TDM subject matter is counterproductive to accepted scientific practice. In order to promote verifiability and reproducibility of scientific experiments, downstream researchers should be able to securely access and use the same types of content. In fact, the JURI draft opinion includes a provision to direct Member States to setup a secure facility to ensure accessibility and verifiability of research made possible through TDM.

There is huge potential for text and data mining—in terms of scientific advancement and discovery, civic engagement, and economic activity and innovation within the Digital Single Market. CULT’s stubborn inactivity ignores this crucial opportunity.

Now it’s time for JURI to push a progressive TDM exception over the finish line. As we’ve written, some of JURI’s recommended changes to the Commission’s proposal with regard to TDM are quite positive. Particular amendments would expand the TDM exception to apply to anyone for any purpose. In addition, they would mandate that publishers provide a mechanism for users who otherwise do not have legal access to the corpus of works to be able to engage in TDM on the publisher’s content, possibly after paying a fee for the normalisation of content for TDM use. Finally, an amendment would direct Member States to setup a secure facility to ensure accessibility and verifiability of research made possible through TDM. 

The post Legal Affairs Should Ignore CULT’s Retrograde Changes to TDM Exception appeared first on COMMUNIA Association.

Last week, the Committee on Culture and Education (CULT) of the European Parliament voted on its final opinion concerning the Commission’s Directive on Copyright in the Digital Single Market. Copyright law in the shape proposed by the CULT MEPs would spell disaster for educators and educational institutions across Europe.

This post aims to provide educators with an overview of the changes to the draft Directive proposed by rapporteur Marc Joulaud, a French MEP from the EPP group, and then through amendments by the members of CULT. We start with an analysis of two clashing logics visible in the CULT debate, followed by an overview of key decisions made during the vote. We finish with advice on next steps in the ongoing fight to secure an educational exception that meets the needs of educators.

If you want to learn more, we have been covering the policy process from the start, with a focus on how the new law will affect educators.

Copyright and education: two clashing views

There are two clashing viewpoints in the ongoing debate on the new educational exception, and each represents a different approach for how to achieve the goals defined by the Commission in its Communication on the DSM strategy and subsequent Directive. These goals include “facilitating new uses in the fields of research and education” and providing a “modernised framework for exceptions and limitations”—which will result in a situation where “teachers and students will be able to take full advantage of digital technologies at all levels of education”.

According to one view (which we, as COMMUNIA, support), achieving these goals requires a strong copyright exception that covers a broad range of educational uses, and that is in principle not subject to remuneration.

According to the other view, these goals are best achieved through the reliance on licensing mechanisms complimented by narrow, remunerated exceptions. It is in this last direction that CULT’s proposal shifts the Commission’s proposal. It is worth inquiring, what stakeholder groups support such an approach? Pressure to adapt licensing solutions as the norm for educational uses comes not from educators, but from publishers.

At every step of the ongoing debate, publishers’ lobbyists ask for new licensing rights and new forms of payments. While such demands are expected from the commercial publishing industry, they are not beneficial for educators. Educational institutions will face uncertainty with regard to the scope of the exception, and budget strains caused by the need to make licensing payments.

We were expecting the CULT MEPs to strike some type of a balance between the opposing interests of the educational sector and rightsholders. Instead, the Committee has not only failed to fulfill the goals set by the Commission, but have practically dismantled the new educational exception.

How did the CULT MEPs fail educators?

1. Who can benefit from the exception?
   The Commission proposed a narrow exception, limited to uses made by “educational establishments”. We have been arguing that this exception should be much broader and cover also non-formal and informal education (in line with accepted European educational strategies). The Committee rejected this approach, and limited the exception to “entities certified by Member States”. Depending on national rules for certifying educational institutions, this might mean a small extension of the list of entities that can benefit from the exception.
2. What uses can be made under the exception?
   CULT MEPs decided to significantly narrow the uses covered under the exception by adding language that allows Member States to restrict the amount to which a work can be used. Quantitative restrictions are one of the main sources of uncertainty for educators, who will always need to check if using an entire image or a given fragment of a text still fits within the exception.
3. Can licensing solutions trump the exception?
   The idea that the availability of a licensing option allows a Member State to make the educational exception not applicable has been the most controversial part of the Commission’s proposal. This mechanism was introduced so that Nordic states can continue to rely on so-called Extended Rights Licensing mechanisms, which they have traditionally preferred over exceptions. It was clear to us from the start that through this mechanism the Nordic model could be exported across Europe, which would create new costs for educational budgets. CULT maintained that option and created further obligations for Member States that decide to implement that option. CULT MEPs propose that every Member State will need to actively ensure that appropriate licensing solutions are negotiated and made available. Once they have actively participated in developing licensing options, there will be little to no room for the exception to apply.
4. Will you have to pay for your educational exception?
   The Commission proposal leaves to Member States the decision on whether to  subject the exception to remuneration or not. The Committee voted to make the remuneration mandatory all over Europe. It is as if the licensing options mentioned above did not provide rightsholders with certainty that they will be paid by educators, so CULT has given them one more funding stream. Currently, 17 Member States have exceptions for educational purposes that are completely or largely un-remunerated. In these countries educators can use copyrighted works for educational purposes for free. If the CULT proposal is accepted by the rest of the European Parliament, those educators (or their institutions) will have to start paying for uses that are now free.

Through these four steps, the CULT Committee has significantly strengthened licensing mechanisms at the cost of a robust educational exception. Furthermore, it made all educational uses subject to mandatory remuneration.

How to secure a strong exception for educators in Europe?

In autumn, the JURI Committee will make the final decision on the shape of the Commission’s Copyright Directive. The reports of CULT and other Committees will be taken into account, but the final decision rests with JURI members.

The JURI vote is currently planned for 12th October, so  we have three months to convince the European Parliament that European educators and educational institutions require a stronger exception that is not immediately replaced by licensing options and that does not have to be remunerated.

We made the first step with our RIGHTCOPYRIGHT campaign, which for the first time highlighted views of educators about European copyright. Almost 5000 people signed our petition and expressed their support for a strong educational exception that meets the needs of educators.

But the voice of educators is still not heard enough in Brussels. We need both individual educators, their associations and educational organizations to speak up. They need to make it clear that copyright needs to serve educational goals.

The post CULT Committee wants educators to pay for content that they now use for free appeared first on COMMUNIA Association.

The introduction of a new right for press publishers (aka the “link tax”) to extract fees from search engines for incorporating short snippets of – or even linking to – their content in article 11 is one of the most controversial issues of the proposed directive. Adopting this type of ancillary right at the EU level would have a strong negative impact on all stakeholders, including publishers, authors, journalists, researchers, online service providers, and readers.

We know that previous experiments with ancillary copyright in Spain and Germany have failed, a fact that was already known to the Commission because it is acknowledged in its impact assessment leading up to the release of the original proposal. We’ve argued that a new right for press publishers would undermine the intention of authors who wish to share without additional strings attached, especially creators that use Creative Commons licenses to share their works. We urged that the provision be removed from the directive.

In recent months there seemed to be an increasing focus on neutralizing this contentious provision. MEPs such as IMCO Rapporteur Catherine Stihler and former Legal Affairs Committee Rapporteur Therese Comodini had gathered support for deleting the press publishers right. Despite of this, last month the new right was retained in the opinion of the IMCO Committee. The opinion removes the clause of the Commission’s proposal which would retroactively apply the publishers right to anything published in the last twenty years.

Making a bad proposal even worse

In the votes last week in the CULT and ITRE committees, the press publishers right was also carried through – and even expanded. Both of the recent opinions remove the restriction that the right applies to digital uses only, meaning that if adopted it would cover all uses – both digital and in print. Even worse, ITRE – the committee responsible for policy relating to the promotion of research – voted to extend the press publishers right to cover scientific publications. Both additions contravene the Commission’s original reasoning for why the proposal aligns with the principle of proportionality. In the directive, the Commission states, “The proposal is proportionate as it only covers press publications and digital uses.” But with the proposed changes to the press publishers right, both the CULT and ITRE opinions expand the right from “digital uses” to all uses, and the ITRE opinion expands “press publications” to include academic publications. It’s unclear how these changes can be reconciled with both the letter and spirit of the proportionality rule.

Academic publishing: the original value gap

As we, and dozens of others, have pointed out before providing protection to academic publications (specifically excluded in the Commission’s original proposal) would mean that users of scientific and scholarly journal articles could be forced to ask permission or pay fees to the publisher for including short snippets of a research paper in another publication. This type of arrangement is completely antithetical to longstanding norms in scientific research and scholarly communications. And it could affect how academic publications are discovered online within search engines like Google Scholar, or other types of aggregators related to scholarly outputs.

The inclusion of academic publishers in the scope of the press publishers right is not coincidence but the result of effective lobbying from academic publishers. On the day the Commission released its Directive on Copyright in the Digital Single Market, the International Association of STM Publishers released a statement urging for the extension of the new publishers right to scientific publications. Given the fact that academic publishing is already one of the most profitable businesses even though it is almost completely based on public inputs the fact that the European Parliament seems to be willing to grant these publishers even more rights seems outright scandalous.

It is not too late to stop the publishers right

It seems that by introduction an ill-considered right for press publishers as part of the directive that (at least in title) has the objective of modernizing the EU copyright framework to create a digital single market, the Commission has unleashed a force that will be very difficult to control. What is on the table by now is not proportionate to the original problem (press publishers facing difficulties in developing digital business models). A press publishers right on steroids that includes academic publishers will undermine open access publishing which has been a core element of public policies to keep higher education and research open and affordable. It is now up to the members of the JURI Committee, and member states (who have invested heavily in open access policies and ultimately pay the bills for access to academic publications) to call a halt to the publishers right.

The post EU research committee wants to gift publishers new rights to restrict access to scientific research appeared first on COMMUNIA Association.

Expand the scope of the text and data mining exception

We have argued many times that Text and Data mining should not be covered by copyright at all. A TDM exception such as the one proposed by the Commission would then be unnecessary. Any TDM exceptions enacted in spite of this would need to be as broad as possible both in terms of beneficiaries and in terms of purpose. Unfortunately the compromise amendment on the issue does nothing to broaden the scope of the proposed exception and merely reaffirms the Commission’s backwards looking proposal. MEPs should reject the compromise amendment and vote for AMs 337, 356, 360, 362 and 364 Instead.

Broaden the education exception to fit the needs of education in the 21st century

On the proposed education exception the Culture and Education committee seems intent to abandon the needs of 21st century educators. Instead of improving the Commission’s half-baked proposal, the compromise amendment reaffirms or worsens the most problematic elements of the proposal:

They keep the artificial barrier between offline and online education, maintain the damaging ‘licensing override’ and further limit the list of potential beneficiaries by requiring that they are ‘certified’. Adding insult to injury the compromise would also make compensation for the use of materials under this exception mandatory, against common practice in more than half of the EU Member States. MEPs should therefore reject the compromise amendment for article 4 and vote for the broadening of the scope of the exception, as proposed in AMs 137, 139, 140, 144, 148, 157, 370, 371, 377 and 381. They should also vote in favour of the deletion of art 4(2), as proposed in AM 392. Finally, they should vote in favour of adding a non-contractual overrides provision, as proposed in AMs 391, 392 and 411.

Allow cultural heritage institutions to share their collections online

Access to cultural heritage online is the second issue where the CULT committee fails its task completely. Instead of working with cultural heritage institutions to turn the Commission’s proposal into something that can actually work in practice, the compromise language that is being put up to vote tomorrow only contains cosmetic changes that fail to address even the biggest flaws of the Commission’s proposal. MEPs should reject the compromise amendments for article 7, 8 and 9 and follow the lead of the IMCO committee that voted for substantial improvements of the proposal (AMs 195, 198, 200, 202, 204, 209, 436, 437, 438, 452, 458, 461, 463, 468, 469, 471, 474, 476 and 478 are in line with the opinion adopted in IMCO).

No new rights for press publishers

With evidence piling up that new rights for press publishers are counterproductive, will hurt small publishers, and that the problems faced by publishers can be addressed by less invasive measures, the only sensible answer to the Commission’s proposal is to reject it in its entirety. Unfortunately the “compromise” amendment on article 11 that is being put to vote tomorrow introduces nothing more than a few  superficial changes to the Commission’s proposal. MEPs should therefore reject the compromise amendments and vote for deletion of article 11 as proposed by MEPs from across the political spectrum in AMs 484-489.

Oppose upload filters for online platforms

As we have highlighted here before, the members of the CULT committee voted against mandatory filtering in their recent report on the Audiovisual Media Services Directive. In this light the fact that the compromise amendment for article 13 not only keeps the proposed mandatory upload filters intact, but even manages to make them worse is difficult to explain. The upload filter and the rest of the measures introduced in article 13 will severely limit the ability of European citizens to express themselves online and should be rejected. The members of the CULT committee should stay consistent with their previous position and reject the compromise amendment on article 13. Instead they should vote for deletion of article 13 as proposed in AMs 507, 508 and 255.

The post Five easy ways for CULT MEPs to help fix EU copyright appeared first on COMMUNIA Association.

From our perspective, the issue of Freedom of Panorama—the legal right to take and share photos, video, and images of architecture, sculptures and other works which are permanently located in a public place—was not adequately addressed in the Commission’s proposal. In fact, it wasn’t included at all. We’ve urged the European Parliament to introduce a broad, EU-wide Freedom of Panorama right that applies to both commercial and noncommercial uses of all works permanently located in public spaces.

CULT’s draft opinion recognizes the Commission’s omission of Freedom of Panorama:

“In order to acknowledge and secure common non-commercial user practices that are not harmful for rightholders, the Rapporteur has enshrined the so-called “panorama exception” through a minimum harmonisation of the existing exception…”

And Joulaud introduces an amendment in support of Freedom of Panorama (Amendment 55):

“Member States shall provide for an exception or limitation to the rights provided for in Articles 2 and 3 of Directive 2001/29/EC and point (a) of Article 5 and Article 7(1) of Directive 96/9/EC, permitting at least the non-commercial digital reproduction and use of works, such as works of architecture or sculpture, made to be located permanently in public places. Any contractual provision contrary to the exception provided for in this Article shall be unenforceable.”

The amendment is a bit of a mixed bag. It’s positive that the CULT draft opinion recommends the introduction of an EU-wide amendment that cannot be overridden by contractual restrictions. At the same, the amendment would be more impactful if it was not limited to non-commercial user activities. We’ve argued that the harmonisation of Freedom of Panorama that includes commercial activity is crucial to supporting an efficient and competitive Digital Single Market. Supporting a broad commercial right to reproduce and use works in public places would give users the legal clarity and assurance to share their works across borders, and generate economic activity, such as commercial publishing of photography.

The use of the phrase “at least” in modification of “non-commercial digital reproduction” is interesting, even if a potentially an odd choice considering that the amendment attempts to harmonise this type of activity across the EU. We could interpret that the “at least” modifier means that Member States can decide how they wish to implement the freedom of panorama exception, and could include commercial as well as non-commercial activities, and also non-digital uses.

It’s good to see that issue of Freedom of Panorama is being specifically discussed as a potential amendment to the Commission’s plan. But to be maximally useful, the Parliament should amend the proposal so that Freedom of Panorama applies to both commercial and noncommercial uses of all works permanently located in public spaces.

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Adding a vague definition of ‘digital content platforms’

Joulaud recognizes that the scope of services potentially affected by Article 13 is quite unclear.

It is the Rapporteur’s opinion that the proposal does not define with enough precision the scope of services falling under the requirements of Article 13 of this Directive, creating legal uncertainty and a potential broader effect.

However, the solutions he proposes do not strengthen the legal certainty for those entities who might be covered under the article; they make it worse. Joulaud proposes a new definition of entities obliged to use upload filters called ‘digital content platforms’. This definition is aimed to center around the principle purpose of services instead of the activity of storing. The draft opinion is unclear regarding which information society service providers would count as ‘digital content platforms’, and it’s also uncertain whether these platforms would still receive the protection of the liability limitations of the eCommerce Directive. Just like the Commission’s proposal—which remains vague on how it will affect the safe harbor protection—Joulaud’s suggested amendment doesn’t provide any more clarity to the situation.

Upload filters don’t—and can’t—respect user rights

The most important flaw of the draft opinion is that even though Joulaud seems aware of the importance of user rights, he still tries to reconcile ‘effective’ content recognition technologies with user rights, including exceptions and limitations and freedom of expression. This is an impossible task. 

Article 13, as proposed by the Commission and also reiterated by Joulaud’s opinion, will require monitoring and possibly a filtering mechanism for online platforms that permit users to upload content. Upload filters cannot recognize existing freedoms such as the right of quotation or parody. The draft opinion ignores case law of the Court of Justice of the European Union that states that monitoring content is in breach with freedom of expression and privacy.

Joulaud’s proposed amendments would still enable filtering by content-recognition technologies, and seem to be concerned with addressing exceptions and limitations only when complaints are made (see description of redress mechanism in Amendments 73 and 74). For instance, the opinion proposes that users should have access to sufficient information on the relevant exceptions and limitations that may apply to content (already) affected by content recognition technologies. Even though we understand this addition attempts to provide more information for users, it’s a poor substitute considering the blunt instrument of the automatic content filtering that would be in place.

Any legislative requirement aimed at addressing the unauthorized use of third-party content needs to respect the freedoms enshrined by exceptions and limitations to copyright. These freedoms cannot be adequately respected if there is a general obligation to filter user-uploaded content.

A failed attempt to embrace user rights

Joulaud tries to strengthen users’ rights by including an amendment to require Member States to provide for an exception for user-generated content (UGC). This is a positive addition, and we’ve advocated for just such an exception.

Joulaud acknowledges that users are now both consumers and producers of creative content in the digital ecosystem. His proposed exception would allow digital use of quotations or extracts of works and other subject-matter by users for purposes such as ‘criticism, review, entertainment, illustration, caricature, parody or pastiche’. Contractual provisions could not override the exception, an important safeguard. We applaud Joulaud for introducing this amendment, and we hope to see it in the final Directive.

Even though Joulaud’s opinion attempts to address some of the shortcomings in the Commission’s proposal, we still end up with a mixed message with regard to whether his proposed solutions truly support user rights. We embrace the introduction of the the UGC exception, but the amendments concerning Article 13 do not provide clarity or policy recommendations to uphold user rights and freedoms.

Check out our other posts about CULT’s draft opinion here:
On education
On press publishers’ right
On text and data mining

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But perhaps the area of the draft CULT opinion that is most detrimental to users and the Digital Single Market is in the suggested amendments to the text and data mining (TDM) exception. The Commission’s original proposal was nothing to write home about. Instead of championing a progressive policy to boost scientific discovery and innovation in the EU by introducing a TDM exception that would apply to anyone for any purpose, the Commission decided to limit the scope of the exception to only not-for profit research organisations, and only for purposes of scientific research.  

The draft CULT opinion goes even further in restricting the ability to engage in TDM in the European Union.

First, the draft opinion wishes to clarify the definition of scientific research:

the term ‘scientific research’ used in this Directive is to be understood as referring both to the natural sciences and the human sciences.

While this might initially be seen as an improvement because it opens the scope of what is considered to be covered under the exception, it’s still too constraining. Text and data mining should be available to anyone for any purpose.

Second, the draft opinion suggests that scientists should delete data they use to conduct TDM:

To prevent unjustified dissemination of the content necessary for text and data mining, research organisations should destroy the content reproduced for the purpose of text and data mining once the all the acts necessary for the research have been performed.

There are many questions related to this blunt requirement. For example, if scientific experimentation requires access to the underlying data to ensure that results can be replicated ad verified, what is the point of destroying the materials from which such results can be checked? Also, why would such a mechanism be necessary when existing law already provides remedies related to infringement that will incentives researchers to handle texts with care?

Third, the draft opinion clarifies a possible mechanism for rightsholders to further restrict TDM:

rightholders should be allowed to apply measures, such as identification confirmation, where there is risk that the security and integrity of the system or databases where the works or other subject-matter are hosted might be jeopardised.

Again, we’ve consistently argued that TDM activities should be available to anyone for any purpose. Adding more restrictions will set up yet another hurdle to scientific discovery and innovation.

Finally, the draft opinion holds that rightsholders should be remunerated for TDM activities:

Rightholders should be compensated for uses under the text and data mining exception introduced by this Directive given the mandatory nature of the exception and the consequent investments that will be required by rightholders to make technically possible and facilitate the wide use of text and data mining techniques under the scope of the exception, which cause sufficient harm to justify such compensation.

There is zero evidence presented as to why remuneration should be granted to the rights holders. TDM assumes that the user already has legal access to the underlying works, and the Commission’s Impact Assessment goes so far as to say, “the lawful access condition foreseen for the use of the exception would ensure that the preferred option does not affect the right holders’ subscription market.” This provision should be seen as nothing more than another way that rights holders are trying to extract fees by taxing a novel research technique that does not implicate copyright by attempting to introduce a made-up right to remuneration.

The amendments to the text and data mining exception are, on the whole, detrimental to scientific research and innovation in the EU. We continue to believe that a broad TDM exception that would apply to anyone for any purpose is the right approach to enable and improve scientific discovery and business opportunities in Europe.

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It is worth noting that the issue of exceptions (in particular for education) has not received as much attention as the link tax (art 11) or the content filter (art 13) in the whole debate on the proposed directive. Yet it is crucial from the viewpoint of a Committee that deals with education, and Joulaud rightly sees it as one of four key issues.

Joulaud, in the justification to the opinion, and in an opinion piece published by the Parliament Magazine, declares support for a balanced approach:

If the protection of intellectual property is a fundamental right, it should not be a disproportionate obstacle to the use of works for public interest.

He adds:

[…] for instance by threatening existing and perfectly viable ecosystems, like commercial licenses for data mining or educational licensing schemes.

This is reasonable as a general statement, but we’ll see that it leads Joulaud to propose amendments that are hardly balanced.

Joulaud states openly: “The Rapporteur supports the new mandatory exceptions and limitations provided in this Directive”. But is that really the case? The proposal for the Copyright Directive on one hand proposes a new mandatory educational exception for digital uses. On the other hand, the proposal adds to it an override mechanism that is triggered by the availability of licensing options. We knew from the start that a mandatory exception will be next to impossible, as Nordic Member States have historically relied on extended rights licensing solutions, which they do not want to give up. But the question remains: do other Member States need to jump onto the licensing bandwagon?

The original proposal creates a mechanism in which this question would no longer depend on the results of a public debate between stakeholders. All that would be needed to “switch off” the exception is for a member state to be convinced by a publisher that promote licenses as the solution for everything, and the Member States implement this mechanism.

Yet Joulaud goes even further and requires Member States to

actively assist in ensuring the availability of the licences authorising at least the acts described in paragraph 1, for example by acquiring collective licences on behalf of the educational establishments established on its territory or by facilitating dialogue between rightholders and educational establishments with a view to establishing specific licences.

It is hard to see how this is an expression of support for (mandatory) exceptions. With active assistance of Member States, rightholders will establish licensing options, that according to Article 4 of the proposal will immediately trump educational exceptions. Joulaud describes this as “providing legal clarity for educational establishments”.

Remuneration is not traditionally provided

Furthermore, Joulaud proposes to make remuneration obligatory, arguing that this is “traditionally provided for under the existing copyright rules”. We would like to remind that today the issue of remuneration is left for Member States to decide, and according to the EC study from 2016 called Assessment of the impact of the European copyright framework on digitally supported education and training practices:

Almost half of the countries analysed have no compensation mechanisms foreseen for teaching uses at all. (pg. 93).

If we add up those Member States that have no compensation scheme in place for all teaching uses and those that do not offer any compensation for a significant part of teaching uses, the number raises to 17 member states. (see Table 15: Compensation mechanisms for use of copyrighted works under exceptions and limitations, pg. 94 of the aforementioned EC study). It is therefore far from reality to say that remuneration is ‘traditionally provided”. Joulaud appears to be generally in favour of remunerated exceptions, as he proposes a similar rule for the new Text and Data Mining exception.

There’s one thing to be liked in the proposal: a new paragraph on the unenforceability of contractual provisions contrary to the exception. Yet, in the ecosystem envisioned by Joulaud, in practice there will not be any exceptions to defend, if the publishers do their job and Member States implement the licensing mechanism.

We are very much disappointed that this unbalanced opinion is presented in the Committee that is best suited to understand both the needs of educators and rightsholders. The strengthening of the licensing solution (despite declarations of a balanced position) brings us back to the failed “Licenses for Europe” model, and away from the goals set by the Commission in its Communication on Modern Copyright.

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