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.

Communia Association is one of the signatories of this letter. We are urging other organisations, especially those active in the fields of Open Access and Open Science, to express their support by signing this letter. Additional signatures will be collected until 1st October – you can sign the letter using this form.

Ancillary copyright extended

Ancillary copyright for publishers, a new right to collect payments and to control the use of headlines and snippets of news articles, has been one of the most controversial parts of the Proposed Directive on Copyright in the Digital Single Market. Both the rapporteur in the JURI Committee and the Estonian EU Presidency currently support this flawed proposal . They do so despite heavy criticism – not just from civil society, academia and libraries, or digital economy companies, but even from some of the Member States.

Press and academic publishers have completely different business models, based on different value creation chains. While press openly publishes content on the Web, academic publishers sell the works of academics at a hefty price, and with a heavy markup. Angelika Niebler, Herbert Reul and Christian Ehler, ITRE members who proposed the amendment that extended the right to academic publishers, have provided no rationale for granting this new right also to academic publishers. They also failed to explain why they are supporting a regulation that will create burdensome and harmful restrictions on access to scientific research and data, as well as on the fundamental rights of freedom of information.

A threat to Open Access

A new right to control and monetise use of snippets of academic articles would significantly limit the sharing of open access publications and data which currently are freely available for use and reuse in further scientific advances. For example, researchers, students and other users of scientific and scholarly journal articles could be forced to ask permission or pay fees to the publisher for including short quotations from a research paper in other scientific publications. The proposed ancillary right further conflicts with the Berne Convention’s Article 10(1), which provides a mandatory exception for quotation, as well as posing risks to freedom of speech.

Support our joint open letter for Open Access and Open Science

Signatories of the letter urge the Legal Affairs Committee to remove Articles 11 and 13 from the draft Directive. Furthermore, the Committee should ensure that Articles 3 to 9 support new forms of research and education and not work against them. Furthermore, we hope that the European Commission, the European Parliament and Member States will chose to uphold Europe’s commitment to Open Science and Open Access.

Please sign the open letter.

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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.

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TDM for all

This week the Committee on Industry, Research and Energy (ITRE) released its draft opinion on the Commission’s plan. Rapporteur Zdzisław Krasnodębski’s suggested changes focus on the proposed exception for text and data mining. ITRE’s amendments—similar to those offered by IMCO—would support an expansive TDM exception that could be leveraged by entities beyond research organisations, and for purposes beyond scientific research.

ITRE’s amended article text:

Member States shall provide for an exception to the rights provided for in Article 2 of Directive 2001/29/EC, Articles 5(a) and 7(1) of Directive 96/9/EC and Article 11(1) of this Directive for reproductions and extractions made by public entities, private entities and individuals in order to carry out text and data mining of works or other subject-matter to which they have lawful access.

We’ve advocated for this type of permissive approach; the TDM exception should benefit not only traditional research labs, but also other institutions, individuals, and companies that wish to engage in mining for any purpose. Broadening the exception can improve scientific discovery, enable novel journalistic practices, and promote innovation opportunities across Europe.

User protections against rightsholder meddling

ITRE’s draft opinion is similar to—but not as strong as—IMCO’s with regard to safeguarding against potential interference from rightsholders. One feature of the Commission’s original proposal is that rightholders should be allowed to apply measures to limit text and data mining if there is a risk to the “integrity” or “security” of the materials. ITRE’s amended text removes “integrity”—thus allowing rightsholders to apply controls only if TDM activities pose a security risk to their systems.

The ITRE draft opinion goes a bit further, stating that any measures adopted by rightsholders to ensure the security of their systems “should not prevent or exclude the ability to develop text and data mining tools different from those offered by the right holder as long as the security of the networks and databases is protected.” This is a welcome addition. And ITRE members that provide feedback on the draft could look to the important suggestion offered by Rapporteur Stihler that forbids the addition of technical protections that would prevent activities under the text and data mining exception.

No need for compensation

Finally, the ITRE draft opinion provides additional support to the notion that rightsholders need not be compensated for uses under the TDM exception. While the Commission’s proposal states that there is no need for compensation because the nature and scope of the exception would lead to only minimal harm, the ITRE amendment states that compensation is not needed at all because “there would be no unreasonable prejudice to the interests of rightholders … [and] use under the text and data mining exception would also not conflict with the normal exploitation of the works in a way that calls for separate compensation.”

All in all, the ITRE draft opinion suggests positive amendments that can help Europe fully realize the potential for text and data mining. We hope that the imminent JURI draft opinion will be equally (or more) supportive in furthering a progressive copyright reform for TDM by ensuring that the exception is available to everyone for any purpose.

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