The Mozfest community includes people with a wide variety of expertise and backgrounds. Not everybody might know the ins and outs of copyright (reform), but once you start talking about the challenges of copyright, most can quickly relate it to their own work and experiences.

Copyright Reform

The discussion on the role of copyright in our day to day life was kicked of on our way to Ravensbourne College where Mozfest was held. We’ve met a Mozillian who was also trying to make his way to the venue which was not that easy due to a problem with the tube. He was working on protecting freedom of expression. He had heard about a new provision proposed in the European Union that could impact this on a large scale. He was talking about the by now infamous article 13 that proposes upload filters to be installed on online platforms and how it would indeed limit the way users can freely express themselves. Parodies in the form of youtube videos would not be recognized by these upload filters, so his concerns were very valid. Although article 13 has received the majority of the attention in the news coverage on the copyright reform, other topics raised in the Directive were as interesting to participants depending on their background.

The new exceptions proposed in the Directive allow, among others, educators to digital use copyright protected content and research organisations to conduct text and data mining. When explaining these exceptions, a teacher working in a university based in London wondered, after learning about it, how that relates to her work. She was surprised that an education exception already existed in her country, because she experiences many restrictions when sharing articles in class. Many other Mozillians were really concerned about the future of Wikipedia and other knowledge-sharing projects, taking into account the new press publishers right.

What we need to create a healthy internet

Apart from the provisions in the Directive on copyright in the digital single market itself, we talked about what we think should have been proposed in the Directive. The Directive still does not include a freedom of panorama provisions nor a user-generated content exception. A street photographer expressed his surprise over the fact that one can not take pictures of public buildings in all EU countries. Freedom of panorama, the right that permits using photographs and video footage depicting buildings, sculptures and other art works which are permanently located in a public place, is not implemented in all European Member States. He understood that people could deny having their picture taken, which he tried to take into account as much as possible, but the idea that buildings cannot be photographed in some countries by default seemed very odd to him.

Mozfest is the perfect place to discuss the internet health. All elements of the internet, from ethical AI to data privacy, are discussed on the 7 floors, each of them devoted to one topic. Although it might not always be explicit how copyright fits in this picture, when discussing the topic, it becomes crystal clear that copyright affects us all and balanced copyright is vital for a healthy internet. We have all become creators and at the same time we all make use of the exceptions or limitations. The ongoing copyright reform that tries (but seems to be doomed to fail in this regard) to make copyright more suitable for the 21st century is something that concerns all of us, especially advocates for a healthy internet. Mozfest is one of the best places to talk about the internet and connecting it to real people and everyday challenges.

The post The daily impact of Copyright appeared first on COMMUNIA Association.

However, while the special impact of OER is clear, often little attention is given to the issue of educational exceptions to copyright. Copyright frameworks that lack such exceptions can be an unjust obstacle for educators, and in particular can adversely affect the creation and use of OERs. Last year, we participated in the 2nd World OER Congress with the aim to raise awareness about educational exceptions as complementary means for achieving the goals of Open Education. The Ljubljana OER Action Plan, adopted by UNESCO members at the Congress, then, did not include actions related to copyright reform. Fortunately, this has now changed.

Confusing copyright rules hold teachers back

Before the Summer, Communia participated in the regional consultations and submitted recommendations to the draft of the Recommendation concerning Open Educational Resources. This was done in cooperation with the European Association of History Educators (EUROCLIO) and the Lifelong Learning Platform.

Copyright reform that is favourable to educators is crucial to support the creation of high-quality OERs by teachers and educators, including in the non-formal sector teaching staff. An educational exception secures the same user rights for educators and learners as open licensing. From the perspective of OER policy making they should therefore be seen as complementary measures.

We furthermore need today educational exceptions that allow the public online sharing of content. Such exceptions would enable creators and users to build on a much larger amount of content that they can use in OERs. This will create the opportunity to make high quality content, since good educational exceptions can be complementary to the use of openly licensed content. Unless, it is made explicit that copyrighted sources can be used within OERs, creators and publishers of OER will be reluctant or refuse to use OERs that contain copyright materials, which will undoubtedly hamper the quality of education that students will receive when he or she is taught with OER.

Copyright reform necessary for quality OERs

The UNESCO recommendations shared before the summer rightly called for a free flow of ideas by word and image, and in order to achieve this, it is needed to give the creators and publishers of OER the legal certainty that they can do this. It is important to do this on an international level, because OERs travel across borders.

Currently, one of the main obstacle with creating good quality OER is copyright. Educators increasingly become creators and develop and compile their own materials. In case they use these materials with their own students they can often use the copyright exception for educational use, but if they want to share these resources with others – which is in the very nature of OER – copyright becomes a barrier.

Educators who do share the resources that they created either take the risk of including copyrighted materials in the OER that they share, or decide to only use copyright cleared materials. In the first case, the creators of OER take a legal risk. In the second case, the creators of OER are not necessarily using the materials that would lead to the best learning.

Therefore we recommended to:

• Build awareness on educational exceptions and limitations to copyright, whose understanding is crucial to determine what rules apply to (sharing) online OER materials, especially because of their cross border use;
• create a coherent approach to ensure that national and international legal provisions concerning copyright complement and support, rather than restrict, the production of high-quality OERs
• ensure that copyright exceptions for educational use are in place as supportive measures for the use, creation,publication and sharing of free to use educational resources by teachers and educators of all types, including in the non-formal sector, and that facilitate the cross-border exchange of such resources.

First draft of the Recommendation concerning Open Educational Resources

The first draft of the Recommendation concerning OER has finally, recognized the importance of exceptions and limitations for OERs. While this is just a small step towards the understanding that we need to include policies on copyright when thinking about OER, it is an important step towards the right direction.

In this first draft the following paragraph was added:

12. [..] Member States are encouraged to:

(f) raise awareness concerning copyright exceptions and limitations for education and research purposes in order to facilitate the integration of a wide range of works in OER, recognizing that the fulfillment of educational purposes requires engagement with existing copyrighted works.

What is next?

It is now up to Member States to forward to the Secretariat of UNESCO their comments and observations by 4 January 2019. The comments will be take into account before the opening of the 40th session of the General Conference. It is important to let your country know that it is important to not only focus on open licensing, but also on creating exceptions and limitations that work for research and (open) education.

The post UNESCO recognizes the importance of Exceptions and Limitations appeared first on COMMUNIA Association.

The Summit is for us first of all an opportunity to plan collaboration with other activists for the coming year. This year, the Summit program has a strong focus on copyright reform and we are excited to build together the Creative Commons Copyright Reform Platform. We will also contribute to discussion about global copyright reform, copyright and education, copyright and cultural heritage and users’ rights.

You can track all our sessions in the Summit’s Sched system. And follow us on Twitter for live updates from the event.

Copyright reform

One of most pressing issues in the European Union for us is the copyright reform and the progress around the DSM proposal. However, copyright reform does not only take place in the EU. Therefore we have dedicated multiple sessions to exchange information on the different challenges, activities and victories.

The World Intellectual Property Organization Standing Committee on Copyright and Related Rights is considering a possible treaty on exceptions and limitations for education and research. Members of the Copyright Reform Platform are invited to meet as a legislative drafting committee and ‘mark up’ a draft proposal during the ‘WIPO Workshop: Education Treaty Mark-Up’ (14th of April, Saturday, 09.00-10.00).

During the ‘Copyright Reform Platform Session’ (15th of april, Sunday, 16.00) we will examine what is going on around the world and whether we need to organise ourselves globally when it comes to copyright reform. We will dive in the same topic during the session ‘Advocacy campaign – sharing experiences, failures and victories’ (13th of April, Friday, 14.45) especially focussed on advocacy campaign and how to make talking about regulations and legal changes appealing.

Copyright and Education

Communia has been heavily involved in improving copyright for education through our project “Copyright reform for education” – Fixing copyright for teachers and students that aims at reforming the copyright system in the European Union, in order to provide better support for educational freedoms. As part of this project we have conducted research on educational licenses, worked on making a vocal education community and conducted ongoing advocacy activities.

During the CCSummit we will lead two session on copyright and education. Friday we will start the day with the session ‘Fixing copyright to meet the needs of educators – global state of play’ (13th of April, Friday, 09.30) in which we will discuss legislative process concerning copyright and education around the world.

The following day shine a light on different successes across the globe such as the 2nd OER Congress and the Open Gov Project action plans. What did we learn from these wins and how can we leverage these accomplishments in your country? Find out in the session ‘Leveraging Global Open Education Achievements + Next Steps’ on the 14th of April, Saturday at 14.45.

Cultural Heritage and Copyright

The COMMUNIA association is built on the eponymous Thematic Network, funded by the European Commission from 2007 to 2011, which issued the Public Domain Manifesto and gathered over 50 members from academia and civil society researching and promoting the digital public domain in Europe and worldwide. Up to the present day we work on improving copyright for the cultural heritage sector.

During the CC Summit we will discuss how Rights Statements relates to the CC licenses, how it serves the need of aggregation platforms like the DPLA and Europeana and how CC licenses and statements work together to allow cultural heritage institutions to describe copyright status in the session ‘Why do GLAMs need their own Rights Statements? Aren’t Creative Commons licenses enough?’ (13th of April, Friday, 09.30).

On Saturday we will discuss practical solutions for the misuse of Creative Commons licenses by Cultural Heritage Institutions(CHIs) in the session ‘What good are CC licenses if they are applied incorrectly?’ (14th of April, Saturday, 16.00).

User’s rights

Contractual restrictions, including contractual definitions that purport to restrict the extent of concepts of the law, are a threat to users rights. Only a small number of countries have provisions to make contractual terms that prevent or restrict copyright exceptions unenforceable. In ‘(Re)defining users rights through licenses’ (15th of April, Sunday, 9.00) we will present examples of such terms contained in educational licenses in Europe.

Open licenses create the opportunity for creators to communicate how they want their work to be used. Despite standard open licenses created by CC and Open Knowledge International (via the Open Definition), many organizations develop their own ‘open’ licenses. This poses challenges for users, because they can’t be sure that these are truly open, preventing us from moving towards a legally compatible data commons. The ‘State of open licenses – forging a path ahead in the open licensing jungle’ (15th of April, Sunday, 13.30) workshop is to discuss open licensing and how we can make progress so that the promise of being able to combine and share freely can be accomplished.

The Big Picture

The Open Movement has strong partners sharing the same objectives such as Wikimedia, Creative Commons, and Mozilla. As Communia, we work closely with all of them and aim to shape a network of collaboration between big and small organizations in the movement. We’ll be discussing the future of the Open Movement at ‘The Big Open: How do we make the open internet revolution irresistible?’ (14th of April, Saturday, 16.00 – 17.30).

Finally, one of the last sessions at the Summit will be a debate on “Creative Commons and the Value Gap” (15th of April, Sunday, 16.00 – 17.30), which will look at sharing, user rights and compensation schemes. It is a discussion that we initiated during our 1st Communia Salon in March in Brussels.

Do you want to join us in Toronto? Registration is now open for the Creative Commons 2018 Global Summit. You can register here.

The post Communia at the CC Summit18 appeared first on COMMUNIA Association.

The future of education determines the future of society. In the letter we explain the changes needed to facilitate the use of copyrighted works in support of education. We listed four main problems with the Commission’s proposal:

#1: A limited exception instead of a mandatory one

The European Commission proposed a mandatory exception, which can be overridden by licenses. As a consequence educational exception will still be different in each Member State. Moreover, educators will need a help from a lawyer to understand what they are allowed to do.

#2 Remuneration should not be mandatory

Currently most Member States have exceptions for educational purposes that are completely or largely unremunerated. Mandatory payments will change the situation of those educators (or their institutions), which will have to start paying for materials they are now using for free.

#3: Excluding experts

The European Commission’s proposal does not include all important providers of education as only formal educational establishments are covered by the exception. We note that the European lifelong-learning model underlines the value of informal and non-formal education conducted in the workplace. All these are are excluded from the education exception.

#4: Closed-door policy

The European Commission’s proposal limits digital uses to secure institutional networks and to the premises of an educational establishment. As a consequence educators will not develop and conduct educational activities in other facilities such as libraries and museums, and they will not be able to use modern means of communication, such as emails and the cloud.

You can still endorse the letter by sending an email to education@communia-associations.org. You can read the full letter below or download the PDF.

Dear MEP,

We, educators, teachers, students, vocational trainers, researchers, scientists, librarians, archivists and museum professionals, provide education on a daily basis. We teach, we learn, we create and exchange information for the benefit of European society. We want a copyright framework that enables us to provide modern, innovative education. Education fit for the Europe of the 21st century. Copyright needs to be reshaped in order to facilitate modern education which spans the lives of learners, and takes place in a variety of formal and informal settings, online as well as offline.

We strongly support the European Commission’s decision to update the framework of educational exceptions and introduce a new, mandatory exception. Unfortunately, the current proposal for a Directive on Copyright in the Digital Single Market (DSM proposal) does not meet the needs of educators and educational institutions.  On the contrary, it will function as a straitjacket that introduces a fragmented legal landscape and legal uncertainty. It might also mean significant, additional costs for some member states.

Instead of supporting a broad lifelong-learning sector that includes in particular adult education and workforce training – the reform will apply only a narrow range of formal establishments. Instead of supporting innovative use of digital communication to extend the mission of educational institutions, it will serve as a barrier to online education. And instead of facilitating use of a broad range of resources available to educators and learners today, it will support an outdated model that limits education to one-size-fits-all, mass-produced textbooks.

We would like to bring your attention to the following problems with the Commission’s proposal:

#1:  A limited exception instead of a mandatory one

Educators should not need to be lawyers to understand what they can and cannot do. We believe in transparency. Educators would benefit from an education exception on which educators can rely across the European Union. Unfortunately, the European Commission’s proposal will maintain the fragmented legal copyright framework when it comes to education as long as licenses can overrule the exception. The consequence of the proposal is that legal uncertainty will be maintained.

#2 Remuneration should not be mandatory

Some members of the European Parliament propose mandatory remuneration for educational uses. Currently, 17 member states have exceptions for educational purposes that are completely or largely unremunerated. In these countries educators can use copyrighted works for educational purposes for free. Payments should therefore remain optional and any changes to this model should be subject to consultation with Ministries of Education of all member states.

#3: Excluding experts

Learners benefit from receiving education from the best in the field. This is why education provided by educators, librarians, museum professionals and non-formal education providers who relate to the topic of study are incredibly valuable. For instance, 24 million adults take part in non-formal training activities in libraries every year within the European Union. Unfortunately, the European Commission’s proposal does not include all important providers of education as only formal educational establishments are covered by the exception. We note that the European lifelong-learning model underlines the value of informal and non-formal education conducted in the workplace. All these are are excluded from the education exception.

#4: Closed-door policy

In today’s Europe, educational activities are legitimately provided in many locations and through various means of communication. The consequence of the European Commission’s proposal to limit digital uses to secure institutional networks and to the premises of an educational establishment is that educators will not develop and conduct educational activities in other facilities such as libraries and museums, and they will not be able to use modern means of communication, such as emails and the cloud. All to the detriment of learners.

The future of education determines the future of society

We strongly urge  you to avoid the above-mentioned pitfalls by granting a mandatory exception for non-commercial educational purposes  that cannot be sidelined by licenses and that cannot be overridden by contract. We need an exception that includes all relevant providers of education and an exception that permits the diversity of educational uses – both digital and analogue – of copyrighted content.

We would like to stress that this is not just a concern to us, educational stakeholders, but to all citizens and society at large. Access to good education is a prerequisite for a thriving knowledge-based economy, and part of European culture. Providing access turns learners into-co-creators of education, information and culture. The education exception is an investment needed to enable the advancement of science and innovation. It is an important condition not only to enable the advancement of science and innovation, but for the development of Europe and its societies.

We count on your good sense in policy and decision-making as you work to reform the copyright system in the European Union. We therefore urge all  to  help support access to inclusive, fair education for all in the European Union.

Sincerely,

• Communia Association for the Public Domain 
• European University Association
• Lifelong Learning Platform – European Civil Society for Education
• European Digital Learning Network
• SPARC Europe
• Open Education Working Group, Open Knowledge International
• Public Libraries 2020 (PL2020)
• The European Bureau of Library, Information and Documentation Associations (EBLIDA)
• The International Federation of Library Associations and Institutions (IFLA)
• The Libraries and Archives Copyright Alliance (LACA)
• Electronic Information for Libraries (EIFL)
• Europeana
• AGH University of Science and Technology
• The European Association of Distance Teaching Universities (EADTU)
• Associazione Italiana Biblioteche (AIB-WEB)
• The Association of History and Civics Teachers in the Netherlands (VGN)
• European Association of History Teachers (EUROCLIO)
• The Slovak Chamber of Teachers (SCT)
• Intellectual Property Institute
• Centrum Cyfrowe
• Kennisland
• ARTEdiem
• Platon Schools
• Alliance for Open Education
• EDUin
• Wikimedia Czech Republic
• The Academy of Waldorf Pedagogy
• Association of Teachers of English of the Czech Republic (AUACR/ATECR)
• The Media and Learning Association
• Neth-ER – Netherlands house for Education and Research
• Association for Technology and Internet (ApTI)
• The Center for Public Innovation
• EBIB
• The Foundation for a Free Information Infrastructure (FFII)
• Union of Informaticians in Education (JSI)
• Mediawise Society Association in Bucharest
• Centrum pro studium vysokého školství (cscš)
• SOU Nové Strašecí
• The Ecumenical Academy, Prague
• AARTKOM s.r.o. Art of Communication
• Zakladni Skola Chomutov
• Creative Commons Slovakia
• Fundacja Szkola z Klasa
• Malopolski Instytut Kultury
• Commonwealth Centre for Connected Learning
• KlasCement.net
• Creative Commons
• Creative Commons Polska
• Superbelfrzy
• Polish History Museum
• Warsztat Innowacji Społecznych
• EduKABE Fundacja Kreatywnych Rozwiązań
• Commons Network
• Elisabeth N. Fotiade, Media Literacy Educator and Chair of Mediawise Society
• Milan M. Horak, priest and teacher, President of the Ecumenical Academy, Prague, Member of the Czech Christian Academy, Member of the Academy of Waldorf Pedagogy, Czech Republic
• Jonathan Mason, Brighton and Sussex Medical School, United Kingdom
• Mario Pena – SafeCreative, Spain
• Allan Mulondo, reference librarian, Luxembourg

The post Educators ask for a better copyright appeared first on COMMUNIA Association.

At Mozfest, COMMUNIA organised two session on copyright issues. We wanted to explain the role it plays online, but also to reimagine copyright that could support, and not hinder, new forms of creativity.

The Copyright Battle

During our first session, called ‘The Copyright Battle’, we wanted to share some insights we gained after our research on ‘Teachers and Modern Educational Practices’. For this research we interviewed K-12 educators across the European Union that used innovative online or technological means when providing educations. Based on the interviews, we identified four personas that we presented at Mozfest. The Creator, someone who creates and shares her own resources with a good knowledge of copyright, the Rebel, an educator who believes that educational goals are more important than the protection of copyright, the Guardian, one who insists that copyright law is respected by students and other teachers, and the Unsuspecting user, one who uses different resources without understanding their copyright status.

Participants of the session could do a simple quiz in which they could find out which persona matches their attitude on copyright (you can take this quiz yourself, online). At Mozfest, most of the respondents were creators. This led to a discussion on the role copyright plays in all of our lives. Many thought that the proposed Directive for a Digital Single Market has the potential to negatively impact their lives. Additionally, they thought that the current copyright framework was too difficult to understand. As one of the participants said during our session: “it would be better if the rules would be aligned with common sense, so that following the rules becomes logical.” We ended with a tug-of-war where the creators competed against the guardians. The creators won. Hopefully this is a good prognosis for the future of copyright.

Strength in numbers

In a later session that COMMUNIA led together with Wikimedia, we discussed “the Big Open” – a vision of closer cooperation of open movements towards our shared goals. This is an important theme for us, as at COMMUNIA we try to make aware other activist communities about the importance of copyright reform (see for example our project on copyright and education). And we see ourselves as an organization implementing the “Big Open” model, by bringing together in our association different organizations that can work together on copyright reform.

Mozfest was a wonderful platform where we met other advocates for a better copyright. It also allowed us to place our copyright reform struggles in a broader context of other activist challenges and policy battles. Additionally it was a great place to meet so many of the people, creators, IT specialists for whom we advocate. We are inspired to continue the Mozfest momentum and we will definitely keep fighting for a healthy internet.

The post Fighting (for) copyright at Mozfest appeared first on COMMUNIA Association.

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

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

In our opinion the European Commission should:

• repeal the sui generis database right;
• harmonize the limitations and exceptions provided in the Database Directive with the Infosoc Directive and make them mandatory;
• if it is not possible to fully revoke the sui generis right, the Commission should amend the Database Directive to introduce a system whereby producers of databases must register to receive protection under the sui generis right;
• set a maximum term so that there cannot be perpetual extensions of database protection.

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

The European Commission’s proposal for the Copyright Directive lacks a user-generated content exception. This is worrisome, because it does introduce an article that could possibly lead to filtering content generated by users even though much of that content does not harm rightsholders. The recent IMCO vote where an exception for user-generated content (UGC) was adopted is a positive step forward in getting a UGC exception in the final Copyright Directive. However, we can’t let our guard down yet. JURI, the most important committee, will vote on its amendments later this year and it yet has to prove it will follow the precedence set by IMCO.

Opposition to the UGC exception

JURI led by Comodini did not incorporate a UGC expectations in its draft opinion. It hereby deviates from the other draft opinions such as those from the IMCO and CULT committee. Therefore a UGC exception can only be included via the proposed amendments by the MEPs. There are several committee members who have proposed amendments for the JURI committee either along the lines of the one proposed by Marc Joulaud, the Rapporteur for the CULT committee, or the one by Catherine Stihler, the Rapporteur for the IMCO committee.

Even though this is encouraging, there is a specific reason for concern. One of the proposed amendments for the JURE committee concerning a UGC exception stands out, because it negates the positive effects of a possible UGC exception. Yes, you read that right. It’s done in a clever, but harmful way.

Amendment 658 from MEPs Jean-Marie Cavada, Robert Rochefort and António Marinho e Pinto reads as follows:

Article 5a
Use of extracts from pre-existing works and other subject-matter in content uploaded or made available by users

(1) Member States shall provide for an exception to the rights provided for in
Articles 2 and 3 of Directive 2001/29/EC, point (a) of Article 5 and Article 7(1) of Directive 96/9/EC, and point (a) of Article 4(1) of Directive 2009/24/EC in order to allow for the use of extracts from preexisting works and other subject-matter in content uploaded or made available by users, other than in the course of their work, for purposes such as criticism, review, illustration, caricature, parody or pastiche, provided that the extracts:
relate to works or other subject-matter that have been lawfully made available to the public;
are accompanied by the indication of the source, including the author’s name, unless this turns out to be impossible; and
are used in accordance with fair practice and in a manner that does not extend beyond the specific purpose for which they are being used.

(2) Any contractual provision contrary to the exception provided for in this Article shall be unenforceable.
(3) This exception shall be without prejudice to the provisions of Article 13 of this Directive.

An exception that is not an exception

The amendment starts of well as if it were a normal UGC exception. Then comes the third paragraph that states that works that would fall under this exception would not be protected if article 13, the article that introduces the upload filter, applies to this work. This is extremely problematic. Article 13 as stated in the proposal of the Commission would apply to all online platforms where large amounts of user-generated content can be found. The far majority of user-generated content can be found on these online platforms. Thus, a UGC exception that does not protect user-generated content on these platforms is really not a UGC exception at all.

The rights of copyright holders should always be balanced against the rights of society

We need exceptions like the UGC exception because they give reasonable room for other valid societal interests. Digital cultural expressions that occur on a daily basis should be embraced. These expressions can be used for many different purposes such as criticism, review, illustration, caricature, parody or pastiche, or entertainment. These purposes might not have a clear commercial revenue, but they do benefit society in a fundamental way. They give insights into our habits and ideas or simply make us laugh. We need a UGC exception that can secure user rights online. This might be self-evident, but we do not need a UGC exception that does not protect user-generated content where it needs protection.

The post Keeping an eye on the fine print: the UGC exception and the JURI committee appeared first on COMMUNIA Association.

Why we need your help

The European Commission has presented a new European copyright law (Draft Directive) to the European Parliament which very much impacts education. Unfortunately, the current proposal is very disappointing and does not facilitate education. Educators have embraced the modern possibilities, and so should copyright. Therefore, COMMUNIA has developed a campaign website rightcopyright.eu to collect petitions of educators throughout Europe to let the European Parliamentarians know we need a better copyright for education. The European parliament will vote on the proposal later this year, and can change, accept or reject it. We will present the outcomes of the petition in the European Parliament, clearly showing them the voice of the European citizens eager for a good-quality education, and a copyright that matches.

Copyright is the exclusive right of a creator to determine how, where and when his work is published or distributed. Copyright affects education. It determines the extent to which a teacher may use, share or remix any material made by someone else. In some cases, there is a special exception to copyright for education. Unfortunately, there are still many things teachers do but that are not allowed. All the European countries have implemented the current EU laws on copyright in a different way, which makes it very difficult for teachers to know what they can and cannot share internationally.

What you can do to help

Please visit the campaign website rightcopyright.eu and if you support a better copyright for education, sign the petition. We would love it if you shared the campaign with your colleagues, friends and family via mail, social media or face to face. You can find sample tweets, posts and images on the campaign website.

If you would like to know more about the campaign, or have questions, please contact Lisette Kalshoven at lk@kl.nl.

Rightcopyright.eu is part of the project Copyright for Education, funded by the Open Society Foundation.

The post Launched: rightcopyright.eu campaign for better education appeared first on COMMUNIA Association.

The filter must go

It is commendable that in her opinion MEP Stihler explicitly says that any attempt to address the value gap cannot be enforced if it has a negative impact on fundamental rights and internet freedoms of consumers. This is something the potential beneficiaries of the proposed article seem to ignore.

Explaining why the upload filter must be removed, MEP Stihler states that filter machines are not capable nor suitable to take into account user rights such as exceptions and limitations. This is something all the opponents of the upload filter, including COMMUNIA, have pointed out before. Therefore in her amendments she rightfully removes all references to the ‘effective’ recognition technologies, which would make the Directive text more technology neutral and future-proof.

Keeping the E-commerce intact

MEP Stihler’s amendments would change the copyright directive so that it does not contradict the E-Commerce directive by changing the liability obligations. This is necessary, because the proposal of the Commision is contrary to the E-commerce directive.

Regarding Article 13 (and corresponding recitals 37, 38 and 39) the Rapporteur believes that the current working is incompatible with the limited liability regime provided for in Directive 2000/31/EC (Electronic Commerce Directive), a piece of legislation that has proven to be enormously beneficial for the internal market in the digital sphere.

The E-commerce directive explicitly states that a general obligation to monitor all information of a website is not allowed. Such a general obligation would be necessary if the Commission’s proposal were to be implemented.

All this makes Stihler’s proposal much better than that of MEP Marc Jolaud, the rapporteur for the Culture and Education Committee of the European Parliament.

Users’ rights protected, sort of

Although MEP Stihler understands the importance of users’ rights, she does not give them the rightful place they deserve. She emphasises that agreements between rights holders and online platforms should take users’ fundamental rights such as the freedom of expression into account, and she acknowledges that users should be a part of the stakeholders dialogue. However, it is not evident from the Rapporteur’s amendments if the agreements would take exceptions and limitations into account. This is unacceptable, because these are some of the most important rights for users that safeguard the balance of the copyright system.

Widening the scope of article 13, but without more clarity

MEP Stihler also proposes to change the scope of the article. The original article applies to ‘Information society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users’. Stihler replaces ‘access to large amount of’ with ‘to copyright protected’, but this change does not provide improved clarity or legal certainty.

It was already implicit in the article that agreements or measures would be concerned with copyright protected works—as there are no rightsholders of works that are out of copyright. Actually, this change widens the scope of the article. It would extend it to service providers that provide access to small numbers of works. This means that more service providers could fall under the scope of this article.

Good intentions do not make for good solutions

Stihler should be applauded for her consideration of users, since her amendments neutralise the most dangerous part of the article 13—the upload filter. Even though this is good news, it also reveals the obvious: there is no good reason for the article to exist.

This view is supported by  scientists from the leading European research centres on intellectual property and innovation law who assess in their Open Letter that amending article 13 in a way that it would be satisfactory might be impossible. The article hardly changes anything to the current state of affairs and will be very difficult to successfully enforce. The best solution for article 13 is to delete it altogether.

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Adding a vague definition of ‘digital content platforms’

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

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

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

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

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

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

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

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

A failed attempt to embrace user rights

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

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

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

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

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