COMMUNIA Association - text and data mining https://communia-association.org/tag/text-and-data-mining/ Website of the COMMUNIA Association for the Public Domain Wed, 25 Oct 2023 06:53:20 +0000 en-US hourly 1 https://wordpress.org/?v=6.4.2 https://communia-association.org/wp-content/uploads/2016/11/Communia-sign_black-transparent.png COMMUNIA Association - text and data mining https://communia-association.org/tag/text-and-data-mining/ 32 32 Statement on Transparency in the AI Act https://communia-association.org/2023/10/23/statement-on-transparency-in-the-ai-act/ Mon, 23 Oct 2023 18:12:49 +0000 https://communia-association.org/?p=6370 A fifth round of the trilogue negotiations on the Artificial Intelligence (AI) Act is scheduled for October 24, 2023. Together with Creative Commons, and Wikimedia Europe, COMMUNIA, in a statement, calls on the co-legislators to take a holistic approach on AI transparency and agree on proportionate solutions. As discussed in greater detail in our Policy […]

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A fifth round of the trilogue negotiations on the Artificial Intelligence (AI) Act is scheduled for October 24, 2023. Together with Creative Commons, and Wikimedia Europe, COMMUNIA, in a statement, calls on the co-legislators to take a holistic approach on AI transparency and agree on proportionate solutions.

As discussed in greater detail in our Policy Paper #15, COMMUNIA deems it essential that the flexibilities for text-and-data mining enshrined in Articles 3 and 4 of the Copyright in the Digital Single Market Directive are upheld. For this approach to work in practice, we welcome practical initiatives for greater transparency around AI training data to understand whether opt-outs are being respected.

The full statement is provided below:

Statement on Transparency in the AI Act

The undersigned are civil society organizations advocating in the public interest, and representing  knowledge users and creative communities.

We are encouraged that the Spanish Presidency is considering how to tailor its approach to foundation models more carefully, including an emphasis on transparency. We reiterate that copyright is not the only prism through which reporting and transparency requirements should be seen in the AI Act.

General transparency responsibilities for training data

Greater openness and transparency in the development of AI models can serve the public interest and facilitate better sharing by building trust among creators and users. As such, we generally support more transparency around the training data for regulated AI systems, and not only on training data that is protected by copyright.

Copyright balance

We also believe that the existing copyright flexibilities for the use of copyrighted materials as training data must be upheld. The 2019 Directive on Copyright in the Digital Single Market and specifically its provisions on text-and-data mining exceptions for scientific research purposes and for general purposes provide a suitable framework for AI training. They offer legal certainty and strike the right balance between the rights of rightsholders and the freedoms necessary to stimulate scientific research and further creativity and innovation.

Proportionate approach

We support a proportionate, realistic, and practical approach to meeting the transparency obligation, which would put less onerous burdens on smaller players including non-commercial players and SMEs, as well as models developed using FOSS, in order not to stifle innovation in AI development. Too burdensome an obligation on such players may create significant barriers to innovation and drive market concentration, leading the development of AI to only occur within a small number of large, well-resourced commercial operators.

Lack of clarity on copyright transparency obligation

We welcome the proposal to require AI developers to disclose the copyright compliance policies followed during the training of regulated AI systems. We are still concerned with the lack of clarity on the scope and content of the obligation to provide a detailed summary of the training data. AI developers should not be expected to literally list out every item in the training content. We maintain that such level of detail is not practical, nor is it necessary for implementing opt-outs and assessing compliance with the general purpose text-and-data mining exception. We would welcome further clarification by the co-legislators on this obligation. In addition, an independent and accountable entity, such as the foreseen AI Office, should develop processes to implement it.

Signatories

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Using Copyrighted Works for Teaching the Machine – New Policy Paper https://communia-association.org/2023/04/26/using-copyrighted-works-for-teaching-the-machine-new-policy-paper/ Wed, 26 Apr 2023 10:16:56 +0000 https://communia-association.org/?p=6173 The surge of generative artificial intelligence has gone alongside a renewed interest in questions about the relationship between machine learning and copyright law. In our newly published policy paper #15 entitled “Using copyrighted works for teaching the machine” (also available as a PDF file), we are looking at the input side of the equation within the […]

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The surge of generative artificial intelligence has gone alongside a renewed interest in questions about the relationship between machine learning and copyright law. In our newly published policy paper #15 entitled “Using copyrighted works for teaching the machine” (also available as a PDF file), we are looking at the input side of the equation within the EU copyright framework.

We discuss the considerations of the use of copyright-protected works and other protected subject matter as training data for generative AI models, and provide two recommendations for lawmakers. Here, we leave aside questions relating to the output of AI models (e.g. whether the output of generative AI models is copyrightable and in how far such output can be infringing exclusive rights), which we will address in another, yet to be published paper.

This paper is without prejudice to the position of COMMUNIA or individual COMMUNIA members regarding this discussion in other jurisdictions.

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The Italian Implementation of the New EU Text and Data Mining Exceptions https://communia-association.org/2022/12/14/italian-implementation-of-the-new-eu-tdm-exceptions/ Wed, 14 Dec 2022 14:07:55 +0000 https://communia-association.org/?p=6098 The legislative decree implementing the CDSM Directive in Italy was adopted on November 8th, 2021, and published in the Gazzetta Ufficiale on November 27th. It came into force on December 12th, 2021, amending the Italian Copyright Law (April 22nd 1941, n.633 – Legge sul diritto d’autore, referred to below as “LdA”). This blog post analyses […]

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The legislative decree implementing the CDSM Directive in Italy was adopted on November 8th, 2021, and published in the Gazzetta Ufficiale on November 27th. It came into force on December 12th, 2021, amending the Italian Copyright Law (April 22nd 1941, n.633Legge sul diritto d’autore, referred to below as “LdA”).

This blog post analyses the implementation of the copyright exceptions for Text and Data Mining, which is defined in the Italian law as any automated technique designed to analyse large amounts of text, sound, images, data or metadata in digital format to generate information, including patterns, trends, and correlations (Art. 70 ter (2) LdA). As we will see in more detail below, the Italian lawmaker decided to introduce some novelties when implementing Art. 3, while following more closely the text of the Directive when implementing Art. 4.

Text and data mining for scientific purposes

Art. 70 ter (1) LdA permits reproductions made by research organisations and cultural heritage institutions for scientific research purposes, for purposes of extraction of text and data from works or other materials available on networks or databases to which they lawfully have access to, as well as communication to the public of the results of research when expressed in new original works. It seems that the Italian lawmaker committed a lexical fallacy by adding that the purpose of the reproduction is to extract text and data from works and other materials available in networks or databases. This, as well as limiting the type of protected materials to those present on networks or databases, appear to be legislative inventions incompatible with the directive.

Notably, the new Italian exception also allows the communication to the public of the research outcome when such outcomes are expressed through new original works. In other words, the communication of protected materials resulting from computational research processes is permitted, provided that such results are included in an original publication, data collection or other original work.

The right of communication to the public was not contemplated in the original government draft; it was introduced in the last version of the article to accommodate the comments of the Joint Committees of the Senate and the Joint Committees of the Chamber, both highlighting the need to specify that the right of communication to the public concerns only the results of research, where expressed in new original works.

The beneficiaries of the TDM exception for scientific purposes are research organisations and cultural heritage institutions. Research organisations essentially reflect the definition offered by the directive. These are universities, including their libraries, research institutes or any other entity whose primary objective is to conduct scientific research activities or to conduct educational activities that include scientific research, which alternatively:

  • operate on a non-profit basis or whose bylaws provide for the reinvestment of profits in scientific research activities, including in the form of public-private partnerships;
  • or pursue a public interest purpose recognised by a European Union member state (Art. 70 ter, (4)LdA).

If commercial enterprises exercise a decisive influence, such as allowing access on a preferential basis to the results generated by scientific research activities (Art. 70 ter, (5) LdA), an organisation will not be considered a research organisation under this law. Cultural heritage institutions are defined broadly, including libraries, museums, and archives, as long as they are open to the public or accessible to the public, also those belonging to educational institutions, research organisations and public broadcasting bodies, as well as the institutes for the protection of film and sound heritage and the public broadcasting bodies (Art. 70 ter, (3)LdA).

The copies of works or other subject matter created need to be stored with an adequate level of protection and can be kept and used only for scientific research purposes, including the verification of research results (Art. 70 ter, (6)). Rightsholders are authorised to apply measures to ensure the safety and integrity of the networks and databases where the works or other subject materials are hosted (Art. 70 ter, (7) LdA). Such measures shall not go beyond what is necessary to achieve and can also be defined based on agreements between right holder’s associations, cultural heritage institutes and research organisations (Art. 70 ter (8) LdA). Such negotiations have not taken place so far.

The Italian lawmaker did not expressly contemplate any specific and fast procedure for cases where technical protection measures prevent a beneficiary from carrying out the permitted acts under both TDM exceptions. However, the law now recognises to the beneficiaries the right to extract a copy of the material protected by technological  measures in certain cases. Under Art. 70-sexies, LdA, beneficiaries of the TDM exception for scientific purposes (as well as the beneficiaries of the exception for digital and cross-border teaching activities exception) shall have the right to extract a copy of the protected material, when technological measures are applied based on agreements or on administrative procedures or judicial decisions. In order to benefit from this right, the person shall have lawful possession of copies of the protected material (or have had legal access to them), shall respect the conditions and the purposes provided for in the exception, and such extraction shall not conflict with the normal exploitation of the work or the other materials or cause an unjustified prejudice to the rights holders.

While the Italian lawmaker should be praised for introducing such a right, the Italian implementation still missed an opportunity to update the controversial and rarely applied negotiation and mediation procedures set forth in Art. 71 quinquies, (2) LdA (which transposed Art. 6(4) of the Infosoc Directive) to the actual needs of all beneficiaries of copyright exceptions. Furthermore, it should be noted that the law continues to reserve the application of the three-step test only to  the exceptions and limitations related to the use of protected materials available through on-demand services only, including under the new copyright exceptions, contrary to what is mandated by Art. 7(2) of the CDSM Directive.

Regarding contractual override protection, as stated by Art. 7(1) of the CDMS Directive, conflicting agreements with the TDM exception for scientific purposes are void.

Text and data mining for other purposes

The implementation of the exception for text and data mining for purposes beyond scientific research by any individual or organisation follows for the most part the text of Art. 4 of the CDSM Directive. Reproductions and extractions are allowed from works or other subject-matters available online or databases to which users have lawful access for TDM. The exception is subject to the possibility of rightsholders reserving their rights, but there is no clarification on how this reservation should be made. In this regard, the Italian law doesn’t mention the need​​ to express such reserves appropriately, such as through machine-readable standards when contents are made publicly available online.

No additional conditions or precisions are established on the retention and storing of copies of materials made to conduct text and data mining, nor on the measures that rights holders may take to ensure the safety and integrity of the networks and databases where the materials mined are hosted. Reproductions and extractions may be retained only for the time necessary for text and data mining as stated in  Art. 4 of the CDSM Directive.

Conclusion

In conclusion, the Italian legislator should be praised for going beyond what is required by art. 3 of the CDSM Directive. The Italian implementation allows the application of the TDM exception for scientific purposes to the reproduction for the extraction of texts and data or other subject matters (to which the beneficiaries have lawful access) and to the communication to the public of the research outcome when it is expressed through new original work. Therefore, in this respect, the Italian legislator exercised the option allowed by Art. 25 of the CDSM Directive to adopt a broader provision, compatible with the exceptions and limitations provided for in the InfoSoc and Database Directives.

For TDM for other purposes, the lawmaker reproduced the text of Art. 4 of the directive, not adding any extra elements to regulate, as written before, the exercise of the faculty to opt out by rights holders in a suitable and machine-readable by the computers. The Italian implementation also missed an opportunity to introduce provisions to allow the reproduction of material protected by technical measures that prevent beneficiaries from carrying out the permitted acts under the both TDM  exceptions. In sum, a total organic revision of the Italian copyright law would be desirable, which would allow for a better understanding and knowledge by not only the interpreter of the law, but also by rightsholders and users.

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Global Civil Society Coalition Promotes Access to Knowledge https://communia-association.org/2022/10/10/global-civil-society-coalition-promotes-access-to-knowledge/ Mon, 10 Oct 2022 07:00:38 +0000 https://communia-association.org/?p=6013 COMMUNIA is part of a group of civil society organizations from all around the globe that promotes access to, and use of, knowledge, the Access to Knowledge or A2K Coalition. COMMUNIA has been a co-initiator of the A2K Coalition. Today, the A2K Coalition is launching its website with demands for education, research and cultural heritage. […]

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COMMUNIA is part of a group of civil society organizations from all around the globe that promotes access to, and use of, knowledge, the Access to Knowledge or A2K Coalition. COMMUNIA has been a co-initiator of the A2K Coalition.

Today, the A2K Coalition is launching its website with demands for education, research and cultural heritage.

Access to knowledge is not enjoyed equally across the world. Crises, including the COVID-19 pandemic and the climate emergency, highlight the barriers that the current copyright system poses for those who learn, teach, research, create, preserve or seek to enjoy the world’s cultural heritage.

The international copyright system has failed to keep pace with advancing technology and practices, including for digital and cross-border activities. Consequently, we have been unable to seize the possibilities that exist to promote access to, and use of, knowledge to fulfill human rights and achieve more equitable, inclusive and sustainable societies.

The members of the A2K Coalition represent educators, researchers, students, libraries, archives, museums, other knowledge users and creative communities around the globe. Our individual missions are varied but we all share a vision of a fair and balanced copyright system.

In addition to our mission statement and demands, the A2K Coalition website features evidence to substantiate our claims. Three maps track the state of copyright limitations and exceptions for online education, text and data mining, and preservation across most countries in the world. Currently, only the text and data mining map is fully implemented, but the maps for online education and preservation will follow soon. The website is available in English, French and Spanish language versions.

We invite you to explore the A2K website and spread the word about the A2K Coalition.

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Research Librarians: New TDM exception can be undermined by technical blocking from publishers https://communia-association.org/2020/03/10/reserach-librarians-new-tdm-exception-can-undermined-technical-blocking-publishers/ https://communia-association.org/2020/03/10/reserach-librarians-new-tdm-exception-can-undermined-technical-blocking-publishers/#comments Tue, 10 Mar 2020 13:14:18 +0000 https://communia-association.org/?p=4715 Today the Association of European Research Libraries (LIBER) issued a warning that the new Text and Data Mining (TDM) exceptions contained in the DSM directive can easily be undermined by technical blocking from publishers. LIBER has come to this conclusion based on the results of a survey on content blocking, carried out by LIBER’s Copyright […]

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Today the Association of European Research Libraries (LIBER) issued a warning that the new Text and Data Mining (TDM) exceptions contained in the DSM directive can easily be undermined by technical blocking from publishers. LIBER has come to this conclusion based on the results of a survey on content blocking, carried out by LIBER’s Copyright & Legal Matters Working Group and the UK Libraries and Archives Copyright Alliance (LACA). The submissions to the survey so far confirm fears that Technical Protection Measures (TPM) can be abused by rightholders to limit the usefulness of the exceptions contained in the directive. 

Article 3 of the directive allows reproductions in the context of text and data mining for the purposes of scientific research made by research organisations and cultural heritage institutions. While the article allows rightholders to take measures to ensure the security and integrity of the networks, it does not allow them to prevent researchers from exercising their rights under the exception. It also requires rightholders to remove any TPMs that prevent researchers from exercising their rights but does not specify how quickly this has to happen. 

The survey conducted by LIBER shows that in practice it is difficult for researchers to get rightholders to remove TPMs or other access and use restrictions to content that research institutions have licensed. And in cases where such limitations are eventually removed the process is often long and resource intensive. All of this does not only frustrate efforts to text and data mining by individual researchers, but can also have negative consequences for entire institutions. 

The submissions shared with us by libraries and researchers from a mix of countries (some with TDM exceptions already and some without) show that:

  • Researchers are blocked from accessing many types of content. Journal articles were the most common type of content mentioned (44%) but eBooks, websites, databases and newspapers were also cited.
  • Content blocking takes, on average, nearly a month to resolve. Respondents reported that it took between 24 hours and 2-1/2 months to resolve the content blocking issue, with the mean time being 24 days. A fifth of survey respondents said they were only partially able to resolve the issue and 11% said it was never resolved.
  • Sanctions impact whole communities, not just individual researchers. Actions taken by publishers included 1) suspension of campus-wide access to paid for electronic subscriptions 2) threats to cut off access to content unless TDM was stopped 3) technically limiting downloads to one document only 4) a request for additional payments and 5) the introduction of captcha technology to frustrate data mining

The findings reported by LIBER are extremely relevant in the context of the ongoing implementations of the DSM directive in the EU member states. As we have noted in our implementation guide for articles 3 & 4 of the directive Member states should include in their national laws provisions requiring rightholders to remove TPMs and resolve lock-outs within a maximum period of 72 hours once reported.

In order to better make the case why such a requirement must be included in national implementations LIBER is continuing to collect evidence of abusive practices. If you work for an academic research institutions that has ran into similar issues in the past you can still contribute your experience to LIBER: 

If you or your organisation have ever been blocked from accessing a publisher’s servers for reasons you believe are related to data mining, fill out the survey. The survey can be answered anonymously and will remain open indefinitely. You can also send information on this issue to liberlegalworkinggroup@gmail.com”.

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Implementing the new EU exceptions for text and data mining https://communia-association.org/2019/12/03/implementing-new-eu-exceptions-text-data-mining/ Tue, 03 Dec 2019 11:00:24 +0000 https://communia-association.org/?p=4602 Yesterday, we launched our Guidelines for the Implementation of the DSM Directive. This is the first of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the two mandatory exceptions for text and data mining contained in the new Copyright Directive. For a detailed analysis, […]

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Yesterday, we launched our Guidelines for the Implementation of the DSM Directive. This is the first of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the two mandatory exceptions for text and data mining contained in the new Copyright Directive.

For a detailed analysis, please read LIBER and Communia’s guide on Articles 3 and 4, authored by Benjamin White and Maja Bogataj Jančič.

What is at issue in Articles 3 and 4?

Although Big Data, AI and data mining is ubiquitous in the modern world, only a few European countries have limitations and exceptions which allow these activities where clearing rights is required but not appropriate or at all proportionate. These exceptions have been introduced to support innovation in modern data markets within the European Union.

Breaking down Articles 3 and 4

What can be done? Reproduction of copyright works and other subject matter and extraction and/or re-utilization of the whole or of a substantial part of the contents of a work subject to the sui generis database right.

For which purposes? Article 3: Text and data mining for scientific purposes, including most commercial ones // Article 4: Text and data mining for any purpose, including commercial ones

What content can be used? Article 3: Works and other subject matter, including databases but prima facie excluding software // Article 4: Works and other subject matter, including databases and software

Who can make those uses? Article 3: Anyone who has lawful access to content via a cultural heritage institution, educational establishment or a research organisation // Article 4: Anyone who has lawful access to content and who is not prevented from data mining by contract, or if on the open web, by machine readable expressions of terms of use.e.g. robots.txt protocol.

For free or paid? Article 3: For free // Article 4: Unclear

How long can the derived data be stored? Article 3: No limits // Article 4: As long as necessary for the purposes of text and data mining

Are the exceptions protected against contract and technological override? Yes

How to deal with Articles 3 and 4?

Implement Articles 3 and 4. In countries where there is no political willingness to take full advantage of the policy space that is available under the existing EU laws, one should advocate for the best possible implementation of Articles 3 and 4.

That means for Article 3:

  • advocating for a 72 hour response time in law where access is being blocked;
  • rejecting specific requirements around secure storage and third parties holding data.

And that means for Article 4:

  • advocating for a 72 hour response time in law where access is being blocked;
  • rejecting any specific limitations on being able to retain data;
  • rejecting any calls for the exception to be subject to remuneration;
  • requiring that the Robot Exclusion Standard is used to disallow data mining on websites accessible on the open web.

Move beyond Articles 3 and 4. Member States can adopt text and data mining exceptions that are broader in scope than Articles 3 and 4 and yet are compatible with EU law. The ideal scenario would be to improve the legal framework in each country.

That means for Article 3 (in addition to the asks above):

  • ensuring that the mining of software is expressly permitted in national law;
  • requiring remote access in national law when data mining relates to the digitisation of  analogue items
  • advocate for the introduction of a clear exception for sharing the results of data mining.

And that means for Article 4 (in addition to the asks above):

  • requiring remote access in national law when data mining relates to the digitisation of  analogue items;
  • advocating for the introduction of a clear exception for sharing the results of data mining;
  • calling for clear language in contracts when rightsholders wish to reserve rights in materials not available on the open web.

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A “compromise” that fails to deliver – our overall assessment of the directive remains negative https://communia-association.org/2019/02/22/compromise-fails-deliver-overall-assessment-directive-remains-negative/ https://communia-association.org/2019/02/22/compromise-fails-deliver-overall-assessment-directive-remains-negative/#comments Fri, 22 Feb 2019 16:11:14 +0000 http://communia-association.org/?p=4374 On Wednesday the Council formally approved the trilogue compromise text of the DSM directive with only 5 Member States voting against the compromise. In a joint statement the Netherlands, Luxembourg, Finland, Italy and Poland sharply criticised the compromise: We believe that the Directive in its current form is a step back for the Digital Single […]

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On Wednesday the Council formally approved the trilogue compromise text of the DSM directive with only 5 Member States voting against the compromise. In a joint statement the Netherlands, Luxembourg, Finland, Italy and Poland sharply criticised the compromise:

We believe that the Directive in its current form is a step back for the Digital Single Market rather than a step forward.

Most notably we regret that the Directive does not strike the right balance between the protection of right holders and the interests of EU citizens and companies. It therefore risks to hinder innovation rather than promote it and to have a negative impact the competitiveness of the European Digital Single Market.

Furthermore, we feel that the Directive lacks legal clarity, will lead to legal uncertainty for many stakeholders concerned and may encroach upon EU citizens’ rights.

These criticisms are very much in line with our own assessment of the directive and it is unfortunate that the rest of the Member States have chosen to ignore them. After this week’s approval by the Member States it is now up to the European Parliament to prevent the directive (or its most harmful element, Article 13) from being passed into law. There is no date for the final plenary vote yet, but the final showdown is widely expected to take place anytime between mid-March and mid-April.

Internet is should be for the people

In the light of this we have now updated our overall analysis of the directive (which we had first published in January) to reflect the final compromise text. The final trilogue negotiations have resulted in changes to the text related to the Text and Data mining exception, the publishers right, the fair remuneration right and — most notably — Article 13. By and large the changes to the text have been minor and in line with our expectations, and as a result our overall assessment of the directive as a whole remains negative. The finals text will do a lot of harm to internet users and needs to be blocked from becoming law.

Last minute surprise: Harmonisation of users’ rights

There is however one area where the trilogue negotiations have resulted in a last minute turn for the better. In a somewhat unexpected move the negotiators agreed on language in Article 13 that would make two of the existing (but currently optional) exceptions of the InfoSoc directive mandatory. If adopted paragraph 5 of Article 13 would require those member states who currently do not have the quotation and parody exceptions implemented to do so (at least with regards to uses that fall within the scope of Article 13).

The new language will do nothing to achieve its stated goal (namely ensure that users will be able to continue to share memes and other remixes via the platforms that fall under Article 13) but it will be another small step in the direction of a EU copyright system where users have the same rights in all member states. It is somewhat ironic that the harmonisation of existing exceptions that should have have been the main element of the reform package (there cannot be a Digital Single Market unless users have the same rights independent of the Member State they are in) has only slipped into the text at the very last minute and in the shadows of the controversy surrounding the upload filters. This is clearly an improvement of the legal situation of EU internet users and as a result we have changed our assessment of the right to remix issue from -2 to +1.

No amount of wishful thinking can ensure that upload filters respect user rights

Unfortunately this does nothing to improve Article 13. As we have argued again and again, the upload filters that platforms will be forced to implement under Article 13 are incapable of distinguishing between uses of a work that are infringing and those that are legal because they are covered by a copyright exception. Ensuring that these two exceptions are in place in all member states does not change the fact that the filters will not be able to recognise that a use is covered by them. Regardless of how often the legislator writes it into the text of the directive (at this moment both art 13(5) and 13(8) contain a requirement that the “measures” should not result in the blocking of works that are used under an exception) upload filters will severely limit users’ rights. Given this we have maintained our -3 score of the upload filters issue issue.

Our overall assessment remains unchanged: The proposed Directive is bad, and will not make the internet work for people. The final “compromise” text has done nothing to accommodate the concerns we and others have raised for the past 30 months. As long as Article 13 remains part of the package, the only sensible way forward it to make sure that Directive will be rejected by the European Parliament.

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Ahead of last trilogue: on balance the directive is bad for users and creators in Europe https://communia-association.org/2019/01/18/ahead-last-trilogue-balance-directive-bad-users-creators-europe/ https://communia-association.org/2019/01/18/ahead-last-trilogue-balance-directive-bad-users-creators-europe/#comments Fri, 18 Jan 2019 12:23:02 +0000 http://communia-association.org/?p=4335 Today we are launching a new minisite called “Internet is for the people” that provides an overall assessment of the Directive on Copyright in the Digital Single Market. Our assessment takes into consideration all the key parts of the Directive. Our aim, with this project, is to present how the Directive  will either empower or […]

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Today we are launching a new minisite called “Internet is for the people” that provides an overall assessment of the Directive on Copyright in the Digital Single Market. Our assessment takes into consideration all the key parts of the Directive.

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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EU copyright reform grinds into trilogue negotiations https://communia-association.org/2018/10/12/eu-copyright-reform-grinds-trilogue-negotiations/ Fri, 12 Oct 2018 07:55:36 +0000 http://communia-association.org/?p=4229 Last month the notorious EU Parliament vote approved almost all of the worst measures of the proposed Directive on Copyright in the Digital Single Market. It was a significant setback for user rights and the open internet. Recap: 12th September Parliament vote The Parliament voted in favor of Article 13, which even though it didn’t […]

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Last month the notorious EU Parliament vote approved almost all of the worst measures of the proposed Directive on Copyright in the Digital Single Market. It was a significant setback for user rights and the open internet.

Recap: 12th September Parliament vote

The Parliament voted in favor of Article 13, which even though it didn’t mention explicitly, would in practice force online platforms that host significant amounts of user-uploaded works to filter all content for copyrighted materials and prevent the upload of those works unless a license has been agreed to. If the platforms don’t do this, they would be liable for copyright infringements of their users.

They approved Article 11, which gifts a new copyright-like right to press publishers that will allow them to control how we access and reference press publications and news stories online.

The text and data mining provisions of Article 3 pretty much stayed the same, with a mandatory exception carrying through, but only one which can be taken advantage of by not-for-profit research organisations, and only for the more limited scope of scientific research. An optional addendum would permit an expanded exception applicable to all, but only if the rights holders in the underlying works don’t object to it, or arrange their own licensing requirements.

Article 4, the copyright exception for education applying to digital and cross-border teaching activities, while being seriously improved over the Commission version, still contains the fatal flaw that the mandatory exception can be essentially ignored if there is appropriately licensed content made available in a Member State.

To add insult to injury, the Parliament doubled down on their rights giveaway bonanza, approving Article 12a to grant sports events organizers to prohibit anyone from sharing photos or other recordings of sports events. And the new Article 13b requires that image search engines to obtain licenses for even the smallest preview images that they display as search results.

We did note that there were some important wins carried in the vote. For example, there were positive provisions passed to allow cultural heritage institutions to provide better access to-out-of commerce works. Also included was some protection for the public domain in Article 5 which states, “Member States shall ensure that any material resulting from an act of reproduction of material in the public domain shall not be subject to copyright or related rights, provided that such reproduction is a faithful reproduction for purposes of preservation of the original material.”

Next step has begun: trilogue negotiations

After the plenary vote in the Parliament on 12th September, the Directive moves into trilogue negotiations consisting of the Commission, Parliament, and Council of the European Union (the EU Member State governments). The first official meeting of the trilogue was held on 2 October. Even though these are closed door meetings, MEP Felix Reda has promised to share trilogue documents on her website, including the comparison positions of the players and possible compromises being floated during the negotiations.

The trilogue bodies will work to reconcile their versions of the directive text, and a final vote will take place in the European Parliament in early 2019.

The public is facing an uphill battle if it wishes for the copyright reform to improve much in the trilogues. Why? Because Member States have already adopted a position that in many respects is even worse than what was agreed to by the Parliament on 12th September. But a significant amount of time has passed since the Committee of Permanent representatives of the Council adopted its negotiating mandate. So advocates are reaching out to their government representatives in the Council to offer ideas to fix some of the most dangerous aspects of the copyright directive.

Even though the Parliament vote was another blow to realising a progressive copyright reform in the EU, it’s not over till it’s over. It’s up to all of us to continue to organize, advocate, and fight for our positions to improve these copyright rules to benefit creators, users, and the public interest.  

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EU Parliament Vote: An Unprecedented Copyright Giveaway https://communia-association.org/2018/09/12/eu-parliament-vote-unprecedented-copyright-giveaway/ https://communia-association.org/2018/09/12/eu-parliament-vote-unprecedented-copyright-giveaway/#comments Wed, 12 Sep 2018 16:25:04 +0000 http://communia-association.org/?p=4224 There is no way around it, the outcome of today’s vote on the copyright directive in the European Parliament is a big loss for user rights and the open internet. MEPs have decidedly sided with the demands of the creative industries to hand them more control over how we access, use and share copyrighted works. […]

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There is no way around it, the outcome of today’s vote on the copyright directive in the European Parliament is a big loss for user rights and the open internet. MEPs have decidedly sided with the demands of the creative industries to hand them more control over how we access, use and share copyrighted works. Out of the seven issues that we listed this morning the European parliament voted against our position every single time.

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.

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