Our aim, with this project, is to present how the Directive  will either empower or hurt users and creators in the digital age. The rules that regulate creativity and sharing must be fair and take into account contemporary online activities and digital practices. Essentially, the internet needs to be for the people, and key legislation needs to be based on this principle.

In order to do this, we analysed nine different issues that are included (or have not been included) in the proposal for the Directive: Upload Filters, the Press Publishers Right, Text and Data mining, access to Cultural Heritage, Education, the protection of the Public Domain, a Right to Remix, Freedom of Panorama and Fair Remuneration for Authors and Performers. Each issue was then scored, allowing us to provide an overall score of the Directive based on an understanding of all elements of the proposal.

Too often, the Directive is reduced just to a few controversial issues: content filtering or a new right for publishers. These are clearly crucial issues, but it is important to understand that the Directive includes other rules that can also have massive effects on Europe’s research and science, education, cultural, or AI industry–just to name a few.

We decided to analyse the Directive through a particular lens: of the potential to either empower or hurt users and creators in the digital age. We are critical of views that the Directive simply attempts to regulate business relationships between two sectors, and that therefore the policy debate should be left to them. The Directive will have tremendous impact on all European citizens, who depend in all aspects of their lives on communication systems and digital tools that copyright law regulates.

The internet needs to be for the people. This means that core policies, like copyright law, need to be “for the people” by design. As our analysis shows, the final proposal for the Directive will likely be a legislative mixed bag. A range of positive developments concerning exceptions and limitations – rules that grant people the freedoms to use content for personal needs or public interest goals – are offered alongside other regulatory proposals that will have extremely adverse effects across all spheres of European society.

On Monday policy makers will have one more chance to fix some of the shortcomings of the proposed directive. Based on the current state of affairs it seems extremely unlikely that this will fundamentally alter the our negative overall assessment of the directive: Seen as a whole, the proposed Directive is bad, and will not make the internet work for European citizens.

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Taken together the positions adopted by the European Parliament this morning amount to an unprecedented expansion of exclusive rights for a  small subset of already-powerful interests:

• Under Article 13, rightsholders would get more control over how copyrighted works can be shared on online platforms. It will allow them to force platforms to filter content in ways that will negatively impact users rights.
• Under Article 11 press publishers would get an entirely new right that will allow them to control how we access and reference press publications.
• Under Article 3 rightsholders would get the right to prevent anyone other than scientific researchers from using computers to analyse information contained in legally accessible works.
• Under the new Article 12a sports events organizers would become copyright holders allowing them to prohibit anyone from sharing photos or other recordings of sports events.
• Finally under the new Article 13b image search engines would need to obtain licenses for even the smallest preview images that they display as search results.

There are a few bright spots in the report adopted today, such as a slightly beefed up education exception and better mechanisms allowing cultural heritage institutions to provide access to out of commerce works, but on balance the result of today’s vote amounts to a substantial weakening of the public domain.

In having chosen the side of the content industries MEPs have turned their back on the potential of an open internet to foster research, access to information and as a driver of creative innovation. This happens against the backdrop of serious concerns from academics that these new rights may be ineffective and will possibly even entrench the dominant position of the dominant platforms providers.

With today’s adoption of the report the path is now clear for negotiations (the so called “trilogue“) between the Parliament, the Council and the Commission (see this helpful infographic for an overview of the remaining steps). Given that on most issues the positions of the three legislators are very similar, this process, which will be guided by the Austrian Presidency, will likely be relatively swift. Once these trilogue negotiations are complete, the resulting text will once more be voted in the European Parliament. This vote, which will likely take place at the end of this year or early next year will be the last possibility to prevent (or at least limit) the effects of today’s land grab by rightsholders. Stay tuned for a more extensive analysis over the next few days.

The post EU Parliament Vote: An Unprecedented Copyright Giveaway appeared first on COMMUNIA Association.

On the table are a wide range of proposals to amend three of the most controversial parts of the proposed directive, as well as a number of attempts to address omissions in the original text. However, large parts of the JURI text, such as the exceptions dealing with education and access to cultural heritage, have been left untouched and will not be affected by Wednesday’s vote.

EU lawmakers will have the opportunity to agree on some meaningful improvements to the proposed directive which would then become part of the Parliament’s position for the upcoming trilogue negotiation with the European Commission and the Member States. An improved Parliament position is badly needed since the European Commission’s original plan was terribly disappointing and the Member States have adopted a position that is even worse on crucial parts of the proposed directive. In order to keep open the possibility that the EU copyright reform process will result in real improvements to the EU copyright system MEPs must:

• Text and data mining: Vote for an expanded version of the exception for text and data mining in Article which would allow anyone to text and data mine all legally accessible copyright protected works. This would be guaranteed by a set of amendments tabled by a cross-party coalition called the Digital Agenda Intergroup. Not adopting their amendments would mean that Europe will shut itself off from an essential tool for scientific, societal and economic progress.
• Press publishers right: Delete the unnecessary and counterproductive Article 11, but it deletion is not possible, limit the most negative effects by refusing to grant press publishers additional rights that will hinder access to knowledge. This would be guaranteed by sets of amendments proposed by the Digital Agenda Intergroup and by the Greens/EFA political group.
• Upload filters: Ensure that the attempts to address an imaginary value gap driven by the music industry by introducing mandatory upload filters do not damage the open nature of the internet and limit the freedom of (creative) expression online. In addition to deletion of Article 13 the damage can be limited by adopting amendments proposed by the Internal Market and Consumer Protection committee or the Digital Agenda Intergroup.
• User-generated content: Vote in favor of the new amendments that clarify that users may engage with copyrighted works through remixes, memes and other types of user-generated content (UGC). Support for UGC was indicated in the JURI recitals, but left out of the article text. There are amendments tabled the Digital Agenda Intergroup as well as several MEPs including Cavada, Reda, Adinolfi, and Maštálka.
• Freedom of Panorama: Vote in favor of new amendments that clarify the ability for European citizens to take and share photography of artworks and architecture in public spaces (freedom of panorama). There are amendments tabled by the Digital Agenda Intergroup as well as MEPs Maštálka and Reda.
• New rights for sports broadcasters and image search: Vote against the additional copyright protection gifted to sports events organisers snuck into the JURI report, as well as the addition of a licensing requirement for image search engines. Neither of these amendments were debated nor received a sufficient level of scrutiny by the Parliament, and both would result in substantial expansions of the scope of copyright that must be opposed given the absence of any evidence supporting such measures.
• Support for the public domain: Vote in favor of the amendments that add a positive definition of the public domain to the EU copyright framework. Copyright law takes a big part of its legitimacy from the fact that it creates temporary exclusive rights and this fundamental principle deserves explicit recognition in EU law. MEPs should support the amendments introduced by MEP Adinolfi.

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This amounts to a massive power grab by rightsholders who will enjoy much more control over how we use the Internet to communicate, share, create and inform ourselves. It is a big step away from an open Internet towards an Internet that functions as a distribution channel for mainstream culture. It is a huge loss for European cultural diversity and the freedom of expression online.

It is telling that the MEPs in the JURI committee have also voted against all attempts to give users more rights. Proposals to introduce EU wide freedom of panorama and to allow the use of protected works in User Generated Content (both of which would merely bring the law in line with reality) were voted down. The MEPs adopted a number of small improvements for users in the fields of education, access to cultural heritage and with regards to Text and Data Mining but most of these come with significant drawbacks.

The education exception contains a license priority clause that allows rightsholders to turn off the exception and dictate problematic licensing terms to educational users, which creates a dangerous precedent for users’ rights and goes against the CJEU ruling on this issue.

The Text and Data Mining (TDM) exception is limited to scientific research purposes only. The expansion that would open TDM to everyone for every purpose (which is crucial for the development of technologies such as artificial intelligence in the EU) is merely optional and will not apply across the EU as a whole.

Taken as a whole, the JURI committee’s vote shows an utter disregard for the rights of citizens in the digital environment. It is telling that both the Civil Liberties and the Consumer Protection committees have prepared much more balanced reports that have been completely ignored by the members of the Legal Affairs committee. This shows that lawmakers still treat the rights and interests of citizens and creators as spare change in the the fight between big content and big tech.

Today’s round has clearly gone to ‘big content’ in spite of warnings from pretty much anyone other than the rightsholders that this outcome will have disastrous consequences for the open Internet and our freedom of speech. Citizens’ freedom of expression should not be the function of an arrangement between rightsholders and big technology companies. It is a right that needs to be defended on its own merits and it is extremely worrisome that EU lawmakers have effectively decided to give big technology companies – that are based outside of the EU –  the responsibility to decide how European citizens can express themselves online.

We will continue to fight for the rights of users and creators and to oppose the censorship machine. The first step will be to convince enough MEPs that a decision to sell out citizens rights to big content and big tech merits a decision by the whole European Parliament:

The post Legal affairs committee sells out user rights to big content & big tech. appeared first on COMMUNIA Association.

#1 Save the Internet

For more than a year the discussion in the European Parliament has narrowed down on a number of key topics. The most attention has gone to those areas where the ideas introduced by the European Commission have the potential to break the open Internet and limit freedom of expression and  the free access to information. Both Articles 11 and 13 remain hotly contested to this very moment and it is important that you continue to tell the members of the JURI committee to Save Your Internet by voting against the compromise proposals proposed by the Rapporteur, Axel Voss, and support the alternative compromises proposed by the Greens instead.

#2 Expand user rights and protect the Public Domain

On a more positive note there are a number of issues where the JURI MEPs can make a positive difference. The Commission’s proposal was a huge disappointment with regard to empowering users and protecting the Public Domain but members of Parliament have worked hard to put proposals up for vote that would correct this. During tomorrow’s vote the JURI MEPs should vote for the alternative compromise amendments that would introduce Europe-wide exceptions allowing anyone to take and share pictures of artworks located in public spaces (the so-called freedom of panorama) and to use pre-existing works in remixes and other forms of “user generated content”. In addition, MEPs should vote in favor of the compromise amendments on articles 7-9 that strengthen the proposed mechanism that would allow cultural heritage institutions to make available out of commerce works. Lastly, the compromise amendment for article 5 contains a recognition of the principle that reproductions of works in the public domain should stay in the public domain.

#3 Fix the most glaring flaws of the Commission proposal

Finally, there are a number of issues where the Commission’s proposal was severely lacking and where the members of Parliament have not managed to put forward a response that fixes these flaws. As proposed by the European Commission, both the exception for Text and data Mining and the exception for education were at best mixed blessings and, unfortunately, the Parliament has not found a way to fully address their shortcomings.

The proposed optional exception for TDM that applies only if the right has not been reserved does not constitute more than a band-aid on the gaping wound caused by the Commission’s proposal for an limited exception (that, in effect, prevents anyone except researchers from engaging in Text and data mining). Given that there are no more substantial solutions on the table we still encourage MEPs to vote for the compromise amendments on articles 3 and 3a even though we are convinced that the only sensible option is to embrace “the right to read is the right to mine” approach.  

With regards to the education exception, the European Parliament’s compromise amendment fails to address the core shortcoming of the Commission’s proposal. The new mandatory exception should improve the very fragmented existing legal framework in the EU and benefit learners and educators alike. Unfortunately, the compromise amendment up for vote tomorrow leaves intact the licensing override that will negate the purpose of having a mandatory exception. We will continue to advocate for limiting reliance on licensing as a method to ensure access to educational materials. It has become clear from our own research that licenses do not benefit education. They impose burdensome obligations on schools and include unfair or even abusive terms.

Time is running out to tell the MEPs in JURI to act. Tell them to back stronger exceptions, safeguard the public domain and save the Internet via saveyourinternet.eu or changecopyright.org now!

The post Three things the European Parliament needs to do to #fixcopyright tomorrow appeared first on COMMUNIA Association.

1. The publishers right must die!

Form the start the idea of granting press publishers a neighbouring right (an extra layer of copyright) in their publications has been one of the most controversial parts of the Commission’s proposal. The idea, based on laws that have failed in both Germany and Spain, is so deeply flawed that there is almost no one from the academic community who is willing to argue in favor (there are of course lots of academics who oppose it). Even worse, in the course of 2017 it has become clear that both the European Parliament and the European Commission have tried to lock away self-commissioned studies that clearly show that the new right not only would be ineffective at directing views (thus, funds) back to publishers, it would also harm media pluralism and access to information.

In spite of the overwhelming amount of evidence speaking against it, and even though its original sponsor (Commissioner Oettinger) is no longer in charge of the dossier, the idea of granting press publishers more rights in order to economically strengthen them refuses to die. It is time that MEPs and the Member states realize that adopting laws based on wishful thinking is the opposite of evidence based policy making, and refuse to create additional rights for publishers. This should be easy as there is an alternative proposal that would strengthen the legal position of press publishers without threatening the freedom to link.

2. Real legal certainty for Text and Data mining!

One of the core problems of copyright systems without a flexible exception (like fair use) is that everything not specifically permitted in the text of the copyright law will be deemed an infringement. This has resulted in an unclear legal status regarding Text and Data mining (letting computers read and interpret texts and other data). Since most forms of text and data mining require the making of copies, rights holders argue that text and data mining needs to be licensed, even if the entity engaging in TDM has legal access to the text and/or data to be mined.

The proposed DSM directive contains a new mandatory exception that would allow research organisations to carry out text and data mining for the purpose of scientific research. While this sounds like a good thing (the directive is allowing something), upon closer inspection it turns out to be quite limiting. Under the proposed rules Text and Data mining by anyone other than research organisations (including journalists, citizens, non profit organisations or companies) or for any purpose other than scientific research (research, data-journalism, product development), would be illegal unless it has been licensed. This means that in its current form the Commission’s proposal will make Europe a very unwelcoming place for anyone working in the field of machine learning, artificial intelligence or any other data driven from of technology. Only an exception that allows TDM by anyone for any purpose can ensure that Europe remains a place where data-driven innovation can flourish.

3. No censorship filters for online platforms!

Article 13 is the biggest mess of the Commission’s proposal. It has been hugely controversial from the start, with its proponents arguing that without European culture will wither away, while its opponents (including us) convinced that it will change the very nature of how we can express ourselves online. The article itself is such a garbled mess that no one quite understands how it is supposed to work and whom it will affect (which has prompted a number of member states to ask the Council’s legal service to explain it to them). By the end of 2018 there are a number of versions floating around, including variants that explicitly try to redefine core concepts of copyright (what is a communication to the public) and undermine the liability exception that online platforms have under the e-commerce directive.

While it is unclear in which direction the discussions will go it is clear that article 13 represents a ticking time bomb that has the potential to do a lot of damage to the freedom of expression online, while causing substantial collateral damage in areas far away from the music industry, such as open access publishing and software development. It is time to realize that article 13 as it was proposed is so badly drafted that the only responsible thing to do is to delete it. In place of this we need to have a comprehensive discussion about the role and obligations of online platforms. That should get us to better solutions than automated upload filters that have the very real potential to limit our freedom of expression.

4. Copyright rules for education that work!

In 2016, we were very happy to see the educational exception among elements of copyright that the Commission planned to modernise. We remained this way until the moment we saw the Commission’s proposal – in which a harmonized exception for educational uses is marred by a licensing override. As a result, we expect splintering of rules instead of harmonization, and additional costs caused by new licensing schemes, that will replace the exception.

Throughout 2017, the initial proposal has remained largely intact. And even the exception remains narrow in scope – limited to formal educational institutions and unfit for fulfilling Europe’s vision of lifelong learning. We have some hope that the scope might be extended in the Parliament’s final proposal. Otherwise, the forecast for educational users is bleak, as the licensing override remains in place.

Part of the issue is lack of interest among educational stakeholders, most of whom don’t understand copyright, or don’t want to be involved in a political process. The situation is very different than with regard to cultural heritage or TDM, where stakeholders are vocal about their rights. For over a year, we’ve been building a coalition in support of good copyright for education, and are lucky to have the support of several strong educational groups. We also see growing interest in this issue among Ministries of Education. Hopefully together we can still convince lawmakers to create right copyright for educators.

5. Get Europe’s cultural heritage online now!

Europe’s cultural heritage institutions (CHIs) are one of the pillars of our identity. For the past two decades libraries, museums and archives have been struggling to make use of the opportunities of the digital revolution. Instead of being able to share their collections and engage with their audiences online, most institutions are forced to spend enormous ressources on clearing rights for works that have been long forgotten by their authors and other rights holders. This has resulted in a 20th century black hole in which most of the collections from this timeframe remain inaccessible.

The proposed DSM directive recognises this problem but fails to provide a comprehensive solution. Allowing CHIs to make out of commerce works from their collections available online via extended collective licensing will solve the problem in some areas (sectors and countries with well established collective management organisations), but will not help in others (sectors or countries where no or only weak collective management organisations exist). It also makes collective management organisations the arbiters of which collections can be published and which cannot, without incentivising them to help getting more of Europe’s cultural heritage available online.

The Commission’s proposal can be turned into a real solution by adding a fall back exception that kicks in in situations where the licensing mechanism proposed by the Commission does not work. By unlocking more of the out of commerce works held by cultural heritage institutions, everyone wins: creators will have new opportunities for rediscovery and commercialisation of their works, and European citizens will enjoy a much wider access to their own culture, in all of its diversity.  

6. No new unwaivable remuneration rights!

The Commission’s original proposal limited its interventions with regard to the remuneration of authors and performers to a transparency obligation (regarding the exploitation of their works by publishers and other intermediaries) and a contract adjustment mechanism (a so called “bestseller clause” that would allow authors to renegotiate contracts for works that proved to be unexpectedly popular). As part of the discussions in the European Parliament, MEPs have added a clause that would give creators an unwaivable right to remuneration for the exploitation of their works.

This measure, intended to strengthen the bargaining position of creators, is hugely problematic. By making such rights unwaivable it would limit the ability of creators to freely share their works (under Creative Commons licenses or otherwise) and it locks creators into business models that rely on intermediaries. As with any new layer of rights (see point 1 above) the cure risks being worse than the disease. Legislators should tread very carefully here to prevent unintended negative consequences such as undermining open access publishing models and limiting creators in how they can share their works.

7. Include some real pan European user rights!

For a directive that that refers to an idealized “Digital Single Market” in its title, the proposed DSM directive does surprisingly little for harmonizing those parts of the copyright framework  that directly affects Europe’s citizens. The proposed exceptions for educational use and access to cultural heritage will have some benefits for users, but everyday activities like taking photos of protected works in public spaces (the so-called “freedom of panorama”) or the use of copyright protected works in memes, remixes and other forms of so-called “User Generated Content” are ignored by the Directive.

As a result of thiseveryday activities that are perfectly legal in one member state will remain illegal in others and much of our everyday online creative expression will remain in a legal grey zone. Members of the European Parliament have come forward with proposals that would create more legal clarity in this area and lawmakers need to realize that without creating more legal clarity for end users they will undermine the remaining public support for our copyright system among users and many creators alike.

The post Seven ways to save the EU copyright reform effort in 2018 appeared first on COMMUNIA Association.

Given Ms. Comodini’s deep understanding of the interplay between law, society, and technology, and the shrewd manner in which she solved several legal Gordian Knots in her draft, it comes as a disappointment that we fail to see some forward-looking changes that would really make the European copyright framework fit for the Digital Single Market.

Freedom of Panorama

Some two years ago the European Parliament had its first heated discussion on the question of Freedom of Panorama. A lot has happened since then, including introduction of a new copyright exception in support of Freedom of Panorama in both France (limited) and Belgium (full).

The European Commission ran a consultation on Freedom of Panorama and, according to the synopsis of the public feedback, consumers, institutional users, service providers, professional photographers and architects expressed that the introduction of a mandatory exception would have a positive impact on their activities. In its communication on promoting a fair and efficient European copyright-based economy in the Digital Single Market, the European Commission “confirms the relevance of this exception” and “strongly recommends that all Member States implement this exception”.

Last but not least, Marc Joulaud, the French conservative Rapporteur for the Culture Committee (CULT) from the EPP Group, proposed in his draft opinion to introduce a mandatory Freedom of Panorama exception in the EU. Although the wording wouldn’t really solve many everyday problems, it must be regarded as a first compromise offer and willingness by the EPP to improve user rights online.  

Given all these massive shifts in the Council and the European Parliament toward a Freedom of Panorama exception, the rapporteur and her shadows must engage with this issue and work toward finding a way to include it.

User-Generated Content

Similarly, another user rights aspect is gaining enormous momentum. Both Ms. Stihler (S&D, IMCO) and Mr. Joulaud (EPP, CULT) have already proposed a user-generated content exception in their respective draft opinions. Rapporteur Stihler’s broad scope is especially important, as it would permit a person “to use an existing work or other subject matter in the creation of a new work or other subject-matter, and use new work or other subject matter”. In other words, it doesn’t matter what a user needs the protected content for, he or she may use it as long as they create something new with it. On the other hand, CULT’s draft opinion proposed a UGC exception to apply without prejudice to commercial/non-commercial uses, a positive move because the distinction between what is commercial vs. non-commercial is very often impossible to make online. But, there is no doubt user-generated content has become an important issue in the copyright reform debate.

Legalising the everyday practice of using parts of works to create content is necessary in order to establish a copyright framework than can be both protected and respected. It is also common sense. Such uses of extracts or quotations typically do not cause significant economic harm to the rightholders concerned. On the other hand, they significantly help user-generated projects improve access to high-quality educational materials and our cultural heritage.

The proposal to include the idea of user rights in this Directive is laudable, and potentially a giant step forward for Europe. We are finally getting to a place where we can openly discuss the right balance between authors’ and users’ rights. However, given that users’ rights in the cases of Freedom of Panorama and User-Generated Content are simultaneously authors’ rights, it is a big letdown to find them ignored in the current JURI draft opinion.

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Unlike her colleagues from CULT and IMCO Comodini has limited her report to fixing flaws in the provisions proposed by the Commission. While such fixes are important, this means that her draft report constitutes a missed opportunity to introduce more forward-looking provisions that would strengthen the position of users such as much-needed exceptions providing legal certainty for user generated content and ensuring freedom of panorama in all of the EU.

Below we provide a brief overview of the changes to the Commission’s proposal that Ms. Comodini proposes in her draft report. We will follow-up over the next few days with more in- depth analysis of individual issues.

R.I.P ancillary right for press publishers

Her most straightforward intervention is to delete the Commission’s proposal for a new neighboring rights for press publishers. In line with what we and many others had proposed she instead proposes to solve the enforcement problems of press publishers by improving their ability to act against infringing uses of works published by them:

Member States shall provide publishers of press publications with a presumption of representation of authors of literary works contained in those publications and the legal capacity to sue in their own name when defending the rights of such authors for the digital use of their press publications. (AM 52)

In her justification for this change she not only points out that a new neighbouring right is unnecessary, but states that it would be actually harmful:

However, using digital technology to facilitate the finding of news and press is not necessarily disproportionately harmful to the financial interests of press publishers, and in some cases these linking or referencing systems (such as hyperlinks) facilitate users’ access to online news portals. (page 52)

Ms. Comodini’s rejection of the Commission’s proposal should be one more nail in the coffin of Günther Oettingers ill-advised crusade to abuse copyright legislation to provide publishers with a competitive advantage.

Fine tuning the new exceptions

The draft JURI report also contains sensible improvements to most of the new exceptions proposed in the Commission’s directive proposal:

Ms. Comodini seems to have listened to research organisations, libraries and others (like ourselves) who have argued that the proposed Text and Data mining exception is much too limited. Where the Commission’s original proposal limited the beneficiaries to research organisations, and only for purposes of scientific research, Comodini’s proposed amendments  would expand the TDM exception to apply to anyone for any purpose.

In addition, she proposes amendments that mandate publishers to 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 to those publishers. Finally she also wants to direct Member States to set up facilities to securely store research data sets  to ensure accessibility and verifiability of research made possible through TDM.

The draft report also contains proposals to modify the Commission’s proposal for an exception for the use of works and other subject-matter in digital and cross-border teaching activities. Here Comodini tries carefully to adapt the education exception to the needs of the educational sector, but misses the opportunity to get rid of the licensing override to the exception in the Commission proposal. Most worryingly she also adds an accreditation requirement that does not serve to extend the scope of the exception beyond formal educational institutions, and to all educational uses.

While Comodini leaves the proposed exception for the preservation of cultural heritage unchanged (a move that will undoubtedly disappoint the cultural heritage institutions that had argued for a number of additional activities to be covered under this exception) she proposes substantial changes to the articles dealing with access to out-of-commerce works. In line with the arguments brought forward by cultural heritage institutions she adds an exception to the extended collective licensing mechanism proposed by the Commission. In doing so she creates a solution that would also work in member states that lack a well-developed collective management sector.

A mixed bag for users’ rights

Although we continue to believe that deletion is the best approach to dealing with the deeply flawed proposal to force online platforms to filter and censor all materials uploaded by their users (Art 13), the amendments proposed by Comodini in the draft report go a long way toward neutralizing the most problematic aspects of the Commission’s proposal. She rightly recognizes that technological measures that focus only on the enforcements of rights  are incompatible with the fundamental balance inherent to copyright law:

Agreements concluded between service providers and rightholders can be implemented using technology, but this must respect the copyright acquis in its entirety: both rights under
copyright and exceptions and limitations to copyright. (page 52)

In order to protect users’ rights Comodini proposes to remove the obligation to filter uploads, and requires member states to ensure that users whose content has been removed are able to effectively communicate with rightholders instead of relying on the vague redress mechanisms of the platforms. Her proposed amendments provide that any agreements between service providers and the rightsholders need to ensure that users can enjoy the use of exceptions, and that any measures undertaken need to be based on accurate claims of ownership.

Given that Comodini rightfully introduces the concept of user rights into the proposed directive, it is even more disappointing that she is not introducing exceptions that would establish clear European rules for the use of protected works in user generated content and ensure a Europe-wide freedom of panorama. Without exceptions addressing these issues the Copyright in the Digital Single Market directive will remain an unfinished piece of legislation that fails to address some of the most pressing legal concerns facing internet users in the EU.

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We are pleased that just as in the draft CULT opinion, IMCO acknowledges the importance of protecting and strengthening user rights. Rapporteur Stihler’s broad scope is especially important, as it would permit a person “to use an existing work or other subject matter in the creation of a new work or other subject-matter, and use new work or other subject matter”. In other words, it doesn’t matter what a user needs the protected content for, he or she may just use it as long as they create something new with it. For reference, CULT’s draft opinion proposed a UGC exception to apply primarily when it serves criticism, illustration, parody, etc.

IMCO’s draft opinion includes a condition that a user may take advantage of the UGC exception when “the use of the new work is done solely for non-commercial purposes”. Interestingly, while debating the issue, IMCO members could have looked at the CULT draft opinion, where the use must be “in accordance with fair practice and in a manner that does not extend beyond the specific purpose for which they are being used” to qualify for the exception.

The reason for considering the CULT approach is that their option could provide more legal clarity, as it’s often difficult to determine what “non-commercial” means. Would posting a meme on Facebook be considered non-commercial, even if the platform screens ads alongside UGC content? If there is a way to remove such obscurity from the practical uses of the exception, IMCO members should embrace that possibility.

In essence, draft IMCO opinion provides a great basis for introduction of the much needed UGC exception, especially if it can embrace a broad, flexible scope. It would be made even stronger if the IMCO shadow rapporteurs used the CULT approach to amend their text so that use under the exception was conditioned on fair practice.

There are other import user-rights issues that the original directive proposal ignored. The Commission decided not to introduce an exception for freedom of panorama in their proposal for a Directive on Copyright in the Digital Single Market. It is also not introduced as an amendment in the draft IMCO opinion (although it was suggested as an amendment in the CULT draft opinion, for at least non-commercial reproduction and use). We continue to ask the European Parliament to introduce a broad, EU-wide freedom of panorama right that applies to both commercial and non-commercial uses of all works permanently located in public spaces. The amendment text should communicate that any contractual provision contrary to the exercise of the rights provided for in the exception will be deemed unenforceable. 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.

It’s clear we’re not the only ones who find strange the addition a panorama exception in the draft CULT opinion, but not in the IMCO draft. With so many user-rights friendly changes offered by Rapporteur Stihler, it’s odd that we didn’t see a similar (or even stronger) amendment in support of freedom of panorama in her opinion. Apparently even Stihler thinks it could be introduced as an amendment, as she noted in a response to MEP Felix Reda on Twitter:

Let’s hope that freedom of panorama won’t be left out because everyone seems to think it is such an easy thing to introduce at any stage. The time to act is now.

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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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