The overriding concern expressed by the rightsholders in their letter is that some of the more recent changes introduced in the council would turn Article 13 from a magic weapon against a few online platforms into a mechanism that threatens to further empower these very platforms in a way that does not benefit rights holders. In response to this, Creativity Works! (CW!) argues for further strengthening some of the most problematic aspects of Article 13.

We have long argued that Article 13 seems to be designed to benefit the big dominant online platforms, as it will entrench their market position. For smaller companies compliance with the filtering obligations will be difficult and costly while the main targets of Article 13 already have filtering systems in place (such as YouTube’s Content ID), and it is a welcome sign to see rights holders waking up to this reality.

For us it has been clear from the start that Article 13 will not achieve its stated goals. Instead the filtering obligations will cause tremendous harm to the freedom of expression and to open platforms that operate in fields that have nothing to do with the distribution of entertainment products. For this reason we think that the only responsible way to deal with Article 13 is to delete it and start over with a discussion about how we can best ensure that creators can be fairly compensated for their work. (Note that in this discussion most of the members of CW! are likely to be part of the problem rather than the solution as CW! has very little representation from actual creators.)

And while CW! is not joining us in our call to delete Article 13, their letter does illustrate our argument that adjusting general concepts of copyright law in order to address the concerns of specific groups of stakeholders is utterly irresponsible in the light of the big (and often unintended) consequences such an intervention can have.

Case in point: the re-definition of right of communication to the public. We and others critical of Article 13 have long argued that Article 13 would expand the right of communication to the public. Within the Commission’s proposal this aspect of Article 13 was hidden away in a recital, but over the successive drafts it has become more explicit. This seems to have led to the sudden realisation by rights holders that such a re-definition of this important right can also negatively affect them. In their letter they wrote on the last Bulgarian compromise proposal:

It would limit the scope of the right of communication to the public by incompletely applying Court of Justice of the European Union (CJEU) case law and setting into stone in Article 13 only certain criteria developed by the Court. This approach would roll-back the CJEU’s case law, which has repeatedly confirmed that a broad interpretation of the right of communication to the public (CTTP) is necessary to achieve the main objective of the Copyright Directive, which is to establish a high level of protection for authors and rights holders. CW! recalls that the exclusive right of communication to the public, including the making available right, as enshrined in EU law (and further clarified by the Court), has emerged as the bedrock for the financing, licencing and protection of content, as well as its ultimate delivery to consumers in the online environment. The Court has also emphasised, in its recent judgments, that in order to determine whether there has been a CTTP, several complementary criteria must be taken into account, which are not autonomous, but are interdependent. Any proposals that entail a selective application of the Court’s jurisprudence, or that imply a narrowing of the scope of the right of CTTP, would be contrary to the protection required by current EU and international law.

While we do not agree that the current draft would limit the scope of the CTTP right, this passage illustrates the dangers of carelessly fiddling around with core legal concepts that underpin the EU copyright framework. In this context it is important to recall that the mechanism proposed in Article 13 has not been part of the public consultation that preceded the proposal, and that its modifications of core legal concepts have not been properly analysed by the EU’s own impact assessment. In other words, Article 13 is the product of a sloppy, ideologically-driven way of law making and should be sent back to the drawing table for this reason alone.

The rightsholders have been in for a similar surprise with regard to another tiny veiled objective of the Commission’s proposal – the attempt to strip open online platforms of their liability limitations that they enjoy under the e-commerce proposal:

It would not fill a gap for rights holders, but rather create additional privileges for certain big content sharing platforms. Article 13(4) would create a new special limited liability regime for online content sharing service providers (“OCSSP”) who communicate to the public as it would exempt an OCSSP from liability when it has made “best efforts to prevent the availability of specific unauthorised work or other subject matter for which rightsholders have provided it with information.” This provision would be another clear step backwards for rights holders and would favour certain online platforms. Under the current law, these platforms are already required to take measures with respect to specifically identified and notified works – not only to make “best efforts.” If they do not do so, they do not qualify for the liability privilege under Article 14 of the E-Commerce Directive.

Not surprisingly, this is another element of the proposal that has not been properly addressed in the run up to the proposal or in the impact assessment. In this case we can even agree with the assessment put forward in the CW! letter. This proposal is bad and will further entrench the dominant position of the established online platforms. This will be negative for creators but even more so for users who will be confronted with upload filters that censor their speech and creative expression without actually helping other creators of original content.

While it seems unlikely that the rightsholders will abandon the path that they have embarked on and join us to demand the deletion of Article 13, it is not too late yet. The fact that those who have pushed these dangerous ideas forward are now suddenly terrified by the monster that they have created should open the eyes of lawmakers and anyone who is interested in a functional EU copyright framework that rewards creativity and encourages innovation. There is still time to delete Article 13 and start a proper discussion about how Europe can best ensure that creative work is fairly compensated in the online environment. As we have argued before, the outcome of such a discussion may very well be that there are better ways to achieve this objective than carelessly abandoning core principles of a copyright system that needs to serve the interests of many more sectors than just the entertainment industry.

The post Now even the rightsholders agree: Article 13 is dangerous and (and should be deleted) appeared first on COMMUNIA Association.

Our new report “Educational Licences in Europe“, covering the analysis of 10 agreements in Finland, France, and the United Kingdom, shows that educational licences contain terms and conditions disadvantageous to schools:

Licences restrict the scope of protection of the educational exceptions

The agreements foresee various types of conditions to the permitted uses (e.g. technological limitations), which are not imposed by the educational exceptions. Some of the restrictions are introduced by contractual definitions of certain concepts of the law, such as what the terms “commercial” and “illustration for teaching” purposes mean.

Licences grant questionable rights to right holders

All of the agreements grant the right to check compliance with the licence to right holders. They may inspect materials, secured networks and storage platforms, and even enter the schools’ premises at any time, provided they give reasonable notice to schools. Only one agreement prevents right holders from disclosing sensitive information obtained in those inspections, such as data related with the performance of students. None of these agreements prohibits commercial uses of such data.

Licences impose burdensome obligations on schools

The British licences force schools to police teachers, students, and in some cases even third parties, on behalf of right holders, to ensure that an act of infringement ceases, and to prevent any recurrence thereof.

Solutions

The current proposal gives right holders the unilateral power to reshape the terms and conditions of educational uses. Our research shows that this will result in agreements that will act to the detriment of educational institutions. To avoid spreading these disadvantages across Europe, lawmakers should consider adopting the following measures:

1. Prevent license priority, or provide only for limited priority to those contractual arrangements that are already in place.  A legal framework that protects a minimum set of educational uses will stimulate contractual innovation, and eventually lead to licensing offers that are attractive to schools because they cover uses not allowed by law (e.g. uses on the open internet).
2. Render contractual provisions that restrict the scope of protection afforded by a copyright exception or limitation  unenforceable. A school will only be free to refuse a licence containing terms and conditions that are narrower or more restrictive than those offered by the law, if the educational exception is protected from contractual restrictions.
3. Give schools access to affordable mediation and litigation, to challenge with ease the terms of a licence that are thought to be unfair or unreasonable. Lawmakers should put mechanisms in place to ensure that schools can force right holders to eliminate or replace unfair or unreasonable terms contained in the educational licences.
4. Assess the need to submit educational licences to public regulation. If the agreements are constantly challenged or if they invariably contain terms and conditions that are unreasonable or unfair, lawmakers may need to intervene.

• Download the full report Educational Licences in Europe, by Teresa Nobre
• Download the Handout Educational Licences in Europe

The post Our study “Educational Licences in Europe” is out now appeared first on COMMUNIA Association.

In the “Urheberrechts-Wissensgesellschafts-Gesetz” (engl. roughly: Copyright Knowledge-Society Act), the German legislator tries to improve the legal framework for educators and scientists in Germany, as part of a general clean-up of the exceptions section of the Copyright Code. In general, 15% of a protected work can be used for educational and scientific purposes without permission until 2023.

The law, introduced last minute at the end of the legislative period in 2017, was long overdue. It was heavily lobbied, it is limited to five years, and it is already scheduled for review. Still, as Federal Minister of Justice Heiko Maas put it, because it is bundled into a single document, it somewhat clarifies regulation for educators, coming into effect on March 1, 2018.

In Germany, legislation on education and research is fragmented due to the federal constitution. So far, with the exception of the Copyright Code, which is federal law, the state-level executive and legislative bodies have full responsibility for education in their Länder (states). This includes the details on how copyright exceptions and limitations for education are handled in practice, which is regulated very granularly in treaties between the states’ culture ministers on one side and rightsholder representatives on the other. In practice, there were 16 different ways of handling copyright in education and some federal-level treaties that had to be considered.

From March onwards, educational institutions can use up to 15% of any single work (e.g. Book, Film etc.) in order to supply their courses and staff, and use that amount even for third-party presentations, as long as this serves to present the teaching outcome or similar at the institution itself. Single images, “a few” scientific articles from the same academic journal issue, out-of-distribution works and “works of smaller proportions” can be used in their entirety.

Before, the federal law only contained vague legal terms such as “shorter extracts”, “works of smaller proportions”, the meaning of which had to be negotiated into the abovementioned treaties at state level, leading in practice to different extent limitations in each state.

Shortcomings of the new exception

There are, however, shortcomings. The exception only benefits formal education providers – this leaves behind educational programs provided by e.g. museums, libraries and non-profits. Press publications and dedicated educational material are excluded. So, textbooks cannot be reproduced in and by schools. Musical scores may also not be reproduced physically, not even to a small percentage.

Providers of educational resources can copy and share 10% of a single work in an educational material that is intended for non-commercial use (e.g. textbooks). For personal research purposes, scientists can copy up to 75%, but are not allowed to share those copies.

The first draft of the reform furthermore aimed for a more generous copyright regulation in the education sector. In the draft, 25% of a work were to be usable for education. Some rightsholders, mainly textbook publishers, pushed hard against that, claiming that it would endanger 600 publishing companies in their existence, that quality would suffer and expropriation would be imminent. This is also the reason for the unchanged requirement for „reasonable remuneration“ (angemessene Vergütung). The usage itself is estimated based on samples of the institutions’ publications and produced material.

Is TDM legal? it depends…

Text and data mining is allowed for non-commercial research purposes only, meaning that necessary reproductions in the process doesn’t require a license. Resulting corpora, however, must be deleted after the research project has finished, or they have to be transferred to an official archive. Also, the term “non-commercial” being quite unclear and narrowing down the use-cases may be a matter of conflict in the future, especially concerning open licensing, public-private partnerships and citizen science projects.

Libraries, archives, museums and educational institutions are from now on allowed to digitise protected works for preservation purposes. The fact that this had to be explicitly mentioned is a prime example for how strict the general regime of exceptions and limitations to copyright is in the EU.

All in all, the changes coming into force now are a step forward for education in the digital age. But the setup is still far from a great solution. And, due to the pending copyright reform on the European level, there is still uncertainty as to which parts of the national changes included in the Copyright Knowledge-Society Act might need further amendments when the Digital Single Market Directive is adopted, which is why the German copyright law is already scheduled for review.

We would like to see further steps to lower copyright blockades of freedom and exchange in education. So we will keep on pushing for extended education exceptions to enable use and distribution of copyrighted materials for educational purposes as well as wide-spread adoption of Open Educational Resources.

Further information on educational use of protected material can be found here (in German)

The post Is the new education exception in Germany geared towards the 21st century? appeared first on COMMUNIA Association.

The background of the study hinges on the assumption that “illicit use of copyrighted material reduces revenues of rights-holders and thus their incentives to produce content.” (p. 19). As our friends at EDRi are pointing out, this assumption is one of the underlying motivations for the Commission’s deeply flawed crusade against open online platforms. So what does the research show? From the report (our emphasis):

In 2014, on average 51 per cent of the adults and 72 per cent of the minors in the EU have illegally downloaded or streamed any form of creative content […] In general, the results do not show robust statistical evidence of displacement of sales by online copyright infringements.” (p. 7)

This result is not shocking. Many online content providers are finding that users will pay for content when that content can be conveniently accessed at a fair price—hence the significant growth of popular online film and television streaming services like Netflix. But this is not the narrative that the Commission wishes to promulgate, as it doesn’t fit their worldview. Or more accurately, it doesn’t align with the interests of the incumbent content industries, who, as we’ve argued, want nothing more than “to minimize the impact of the fundamental changes brought about by digital technologies and the internet on legacy business models.”

One assumes that the findings from this study would have been a useful input into the Commission’s proposal for the Directive on Copyright in the Digital Single Market. And surely it would have been interesting to creative sector economists, the startup and technology communities, consumer rights organisations, civil society advocates, and the public at large. Instead, the Commission pushed ahead and introduced restrictive copyright reforms that blindly tries to stop something, which according to research commissioned by the Commission itself is not a problem.

This incident makes a few things crystal clear: 1) the Commission has confirmed it has no interest in pursuing evidence-based policymaking, and 2) freedom of information laws are an increasingly vital tool by which to shed light on the shady workings of some public institutions.

The post Commission pushes inconvenient copyright research down the memory hole appeared first on COMMUNIA Association.

These questions clearly show that these Member States have serious doubts about the Commission’s repeated assurances that the proposed censorship filters would not affect users’ fundamental rights, do not change the liability exemption of the e-commerce directive, do not constitute a general monitoring obligation and do not change the definition of what it means to make copyrighted works available online.

All of these questions may sound like technical details but they are not. Instead they are at the heart of the discussion about article 13 of the commission’s proposal. Since the commission presented the proposal, a broad coalition of civil society, technology companies and academics has pointed out the problematic relationship between the commission’s proposal and fundamental rights and the principles established by the e-commerce directive.

Member States have serious doubts about legality of upload filters

The music industry organisations are the driving force behind the attempt to censor user uploads and regain control over the ability of millions of online creators to express themselves online. Together with the Commission they have flat out denied that the proposed in article 13 and recital 38 would change existing EU law. The fact that the six member states have formally asked the legal service of the Council (which is independent of the Commission) shows that they are not buying into this narrative.

This is quite remarkable, not only because it shows a fairly uncommon level of mistrust towards the Commission’s statements, but also in the context of last week’s proposes for compromises. The Estonian compromise proposal presented 2 different versions for a possible compromise on article 13 and neither of them takes into account the serious concerns that the governments of Belgium, the Czech Republic, Finland, Hungary, Ireland and the Netherlands have. When at least six member states are still in the process of understanding how the measures proposed by the Commission relate to important cornerstones of the existing EU law, the willingness of the Estonian presidency to move ahead and propose compromise language is rather troubling from a procedural point of view.

Is the Commission undermining the legal basis for the Digital Single Market?

Now the fact that these questions have been asked, does not mean that the legal service of the Council will confirm that indiscriminate filtering of user uploads would be violating existing EU laws that protect consumers and provide the legal basis for Europe’s online economy ( In order to find out what the legal services think we would likely have to wait for some time (the leaked document with the questions dates from end of July). If previous statements by leading academics are any indication, however, it is quite likely that the reaction  will expose incompatibilities between the Commission’s proposal and existing laws.

While we are waiting for the answers from the Council’s legal service (which will hopefully be leaked as well, since the Council generally operates behind closed doors) It is illustrative to take a close look at the question posed by the six Member states. While dry and  bureaucratic, the leaked document actually does a remarkable job summarizing the complex legal issues at hand.

Does the filtering of user uploads violate the fundamental rights of EU citizens?

The document starts up with a brief summary of the overall position that the European Commission has taken when discussing the proposed article 13 with the Member states:

Article 13 of the Commission proposal for a directive on copyright in the Digital Single Market imposes an obligation on certain platforms to proactively prevent the uploading on their platform by users of content that contains part of protected works or subject matter which right holders wish to block. This can only be achieved through the use of identification and filtering technology.

[…] the Commission states that it will uphold the existing principles of the e-Commerce Directive and will maintain a balanced and predictable liability regime for online platforms since this is crucial for the further development of the digital economy in the EU and for unlocking investments in platform ecosystems. During the discussion of the proposal, the Commission stated that the obligation under Article 13 should be considered as a standalone measure and that the current proposal, including recital 38, does not alter the provisions of Directive 2000/31/EC, nor does it provide a new interpretation of Article 3 of Directive 2001/29/EC (communication to the public).

It then focuses on the question of the relation between the proposal with exceptions and the Charter of Fundamental Rights of the EU. The document outlines the broad scope of the Commission’s proposal:  

The prior identification and filtering before the stage of upload of content on the publically available platform would occur automatically when the identification technology finds a match with a work or protected subject-matter. This process would apply across a wide variety of online services and platforms used by European citizens to upload content to the internet.

In practice this would happen irrespective of the fact that the user can benefit from an exception to copyright. According to the proposal, users would be given a possibility to file complaints in the context of a redress mechanism set-up by the platform, however […] the proposal does not provide for appropriate measures that would enable these users to actually benefit from public interest copyright exceptions. It is important to point out that certain exceptions to copyright, such as e.g. parody or the quotation right are the embodiment in copyright of fundamental rights other than the right to property.

Based on this the six member states to ask the following two questions:

Would the standalone measure/ obligation as currently proposed under Article 13 be compatible with the Charter of Human Rights […] in the light of the jurisprudence of the CJEU that aims to secure a fair balance in the application of competing fundamental rights? Are the proposed measures justified and proportionate?

Does article 13 undermine the legal basis for the EU online economy?

This leads to the second set of questions which looks into the relationship between the proposal with the liability exceptions for online platforms established by article 14 of the e-commerce directive. The member states point out that while the commission’s proposal pretends to summarize the current legal situation the text of recital 38 omits an important factor used in assessing if a service can rely on the liability exemption provided by the e-commerce directive, namely “the actual knowledge of the illegal activity on the platform.”

Actual knowledge is required by the CJEU. In case C-324/09 eBay vs L’Oréal the CJEU (case concerning trademarks) held that “… an active role of such a kind as to give it knowledge of, or control over, the data relating to those offers for sale”. Furthermore, under Recital 42 of the Directive on electronic commerce, the reference to “passive” activities is also clearly subject to determining whether a service has knowledge or control over information.

The member states further note that – contrary to statements made by the Commission that recital 38 is not intended to modify the provisions of the e-commerce directive – the recital “has a horizontal nature and is not limited to copyright.” This leads to the following set of questions:

Is it appropriate to modify the manner in which the Directive on electronic commerce is applied and interpreted in a horizontal manner, in a recital in a Directive on copyright?

Is the description in recital 38 of the current state of play of the jurisprudence of the CJEU regarding the eligibility of ISPs for liability exemptions under Directive 2000/31/EC accurate and complete?

In the event that the description in recital 38 would be incomplete or would create legal uncertainty, would it not be more preferable to replace part of recital 38 with a “without prejudice clause” in respect to the directive on electronic commerce, similar to the clause in recital 1six of directive 2001/29/EC?

The wording of the last question clearly shows that at least the six member states who submitted these questions want to prevent a modification of the rules of the e-commerce directive through the backdoor of the proposed DSM directive. This seems to be based on concerns that this flawed attempt to please the music industry in their campaign against open platforms has the potential to fundamentally alter the ground rules of the European online economy as a whole.  

Upload filters: A general obligation to monitor users?

The next question deals with the prohibition of a general obligation to monitor users of online services contained in article 15 of the e-commerce directive. Currently there is no clear agreement if preventive upload filtering as required by article 13 would constitute such an obligation. The Commission, mainly relying on clever wordsmithing, claims it doesn’t while prominent academics argue that it does.

During the discussions in the Council working group, the European Commission stated that the standalone obligation under Article 13 (prior identification and filtering of unauthorized protected content by certain platforms) does not constitute a general obligation for platforms to monitor the information which they store, nor a general obligation actively to seek facts or circumstances indicating illegal activity. Such a general obligation to monitor is prohibited under Article 15(1) of the Directive on electronic commerce. This leads the member states to ask the following question:

Is Article 15 of the Directive on electronic commerce to be understood that the prohibition for Member States to impose general monitoring obligations does not apply in the situation where Member States’ legislation would oblige certain platforms to apply technology that identifies and filters all the data of each of its users before the upload on the publically available services?

The last set of questions concerns the relationship with the communication to the public right that has been codified in the 2001 InfoSoc directive. The exact scope of this right has been under a lot of discussion by the courts over the past years, and the discussion is far from settled.

As pointed out by the six member states, recital 38 of the proposed directive contains language that could be interpreted to widen the concept of communication to the public.  The result would be that additional types of activities of online platform operators and/or their users become dependent on prior permission from rightsholders:

The use of the notion “providing access to the public to copyright works” creates legal uncertainty. The European Commission has repeatedly stated that the aim of the proposal was not to modify the notion of communication to the public as provided under Article 3 of directive 2001/29/EC, but it does not wish to delete the words that give rise to legal uncertainty.

Is the Commission (not so) secretly trying to broaden the scope of copyright?

This leads to the final question submitted by the six member states:

Under the premise that it was not the intention of the Commission proposal to modify the notion of communication to the public, does the Legal Service consider it is sufficient to “provide access to the public” to a copyrighted work to constitute an act of communication to the public under Directive 2001/29, or does the CJEU require that further conditions be met to establish a communication to the public?

Taken together these question makes it clear that the commission’s proposal for an upload filter is highly problematic from a legal point of view. As we have pointed out before the whole article with corresponding recitals should be deleted from the proposal, not only for reasons of compliance with existing EU law but also because  the concept was introduced in spite of a total lack of empirical evidence for the problem it is supposed to address (the imaginary “value gap”).

In this light the governments of  Belgium, the Czech Republic, Finland, Hungary, Ireland and the Netherlands deserve a lot of praise for this attempt to re-introduce external legal expertise into the discussion about article 13.

The post Member States to Commission: We don’t trust your claims that censorship filters are in line with EU law appeared first on COMMUNIA Association.

Earlier this week the Spanish Association of Publishers of Periodical Publications (AEEPP) published an English version of a study that assesses the impact of the introduction of the ancillary copyright (article 32.2 of the Spanish Copyright Act) in Spain. This article states that a copyright fee must be paid by sites aggregating or otherwise linking to online news to the publishers of such news. These payments (referred to as a Google Tax, after the fact that they seem to be primarily intended to extract revenue from Google) are collected by the CEDRO copyright collection society.

The study comes to a pretty devastating conclusion that clearly shows that granting a new right to press publishers is highly problematic and will not have the desired result of stabilising the business models of struggling publishers:

This analysis concludes that there is neither theoretical nor empirical justification for the introduction of a fee to be paid by news aggregators to publishers for linking their content as part of their aggregation services. Likewise, the arbitrary nature of the fee, which prevents publishers from opting out of receiving the payments, inflicts harm on a large number of outlets, particularly small publications.

Moreover, the introduction of such a fee has a negative impact on competition, not just for the aggregator segment, but also for online publications and, ultimately, for consumers, including readers and advertisers.

[…] On the more distant horizon, the negative impact will be more significant, discouraging the development of innovative content and platforms in the ecosystem of online news consumption in Spain.

In light of these findings, it is clear that the reform followed the interests of a particular group of publishers which, given the decline of their business, sought to obtain an additional source of income from one of the Internet giants, even to the detriment of other publishers, to the development of the online news production and aggregation sectors in Spain and, ultimately, to consumers (including advertisers) and to social welfare.

Infighting between publishers

The last paragraph of the conclusion provides an interesting insight in the divisions among publishers. The AEEPP commissioned study is pointing the finger at “a small group of publishers affiliated with the Association of Publishers of Spanish Newspapers” (AEDE) which represents the big newspaper publishers and accuses them of putting the particular interests of large established newspapers above the interests of the wider publishing sector.

This clearly shows that the new right for publishers which affect all publishers is only supported by a small subsection of the sector. And even among newspaper publishers support seems to be waning as evidenced by a recent editorial in El Pais (the biggest daily newspaper in Spain) which argued that the new right was a mistake and called on European legislators not to follow the failed Spanish example.

Left pocket, right pocket

It seems that the proponents of the link tax have also realised that all of this severely undermines the case for new rights for publishers on the EU level (if there ever has been such a case). Incapable of pointing to evidence that the new rights have had the desired effect (more revenue for publishers and journalists) they have simply started to invent their own evidence…

On Tuesday last week, CEDRO (the collecting society in charge of collecting the link tax) announced that it had finalised its first licensing agreement with the online new aggregator upday.com and presented this  as evidence of the fact that the link tax “seeks a balance between” both publishers and news aggregators.

The problem with this logic? Upday.com is owned by Axel Springer, the German publishing conglomerate that is the driving force behind the introduction of the German ancillary copyright for press publishers. It is clear that as such Axel Springer has a clear incentive to show that ancillary rights for publishers “work”, even if that means engaging in “left pocket, right pocket” transactions that do not generate a single extra euro for struggling publishers and the journalist working for them.

The post Spain: Publishers pay themselves in desperate effort to show that giving them extra rights actually has an effect appeared first on COMMUNIA Association.

Almost no case law was analysed, and uses permitted under licenses, namely extended collective licenses, are not indicated here. Thus, the study does not give a detailed picture of all the countries under analysis.

Materials available for educational uses

This study confirms what we have known for a long time: that not all copyrighted works are treated equally in the context of education. Some educational exceptions exclude the use of certain types of works (textbooks and academic books in France and Germany, dramatic works and cinematographic works in Denmark and Finland and musical scores in France and Spain). Other laws contain restrictions in relation to the extent or degree to which a work can be used for educational purposes, thus creating obstacles to the use of entire works, namely short works (e.g. individual articles, short videos and short poems) and images (e.g. artworks, photographs and other visual works).

The Commission’s proposal covers all types of works and allows them to be used to the necessary extent. However, Member States can decide that licenses take precedence, generally or in relation to some types of works. This means that, unless the proposal is amended, materials available for educational use will continue to be subject to different rules and licenses in some Member States.

Traditional vs Modern Educational Practices

While the proposal of the Commission only focuses on digitally supported education, the problems and legal uncertainty that the education community faces go beyond the digital and online environments. For instance, extent restrictions in France, Luxembourg, Portugal and Spain, and the exclusion of certain types of works from the scope of the exception in Denmark, Finland, France and Spain prevent the performance in class of an entire piece of music and/or a dramatic work and/or the screening of an entire film.

Treating educational activities differently based on the rights or technologies involved adds complexity to an already complex legal framework. For example, in Italy and in the Netherlands performances made in the context of education are excluded from the scope of protection of the public performance right. This means that a teacher can screen a film from a DVD without having to worry about copyright. However, if the same teacher wants to show a film from the Youtube, she probably cannot do it, because a different right – the public communication right – is triggered.

Even in the context of digital uses, the Commission proposal falls short of the expectations. For instance, when it comes to sharing resources through online platforms, several of the countries curtail the potential beneficiaries of these types of uses, but only Spain and the United Kingdom expressly require such use to be made through a closed/secure electronic network, accessible only by students and teachers from a given educational establishment, as foreseen in the Commission’s proposal. Moreover, most of the countries under analysis allow sharing educational materials via email, the cloud, etc.

Non-Formal Education

The majority of the countries under analysis does not discriminate against the person or entity running the educational activity, focusing solely on the educational purpose of the use. However, a significant number of these countries only allows educational uses if they are made by schools or other formal educational establishments. These are Germany, Italy, Poland, Portugal, Romania, Spain and the United Kingdom. In these countries, museums, libraries and other providers of non-commercial education must therefore ask for permission before making certain uses of protected materials in their educational programes.

Conclusion

The landscape of educational exceptions in Europe is fragmented due to four main obstacles: act of use, type of user, type of work and extension of work.

While the European Commission does not restrict the types of works or other subject matter that can be used under the proposed exception for digital and cross-border teaching activities or the extent to which those works can be used, the proposed exception only covers certain acts of use and limits the type of users that can benefit from the exception. Indeed, its proposal focuses solely on digitally supported education for the benefit of a closed list of persons providing or receiving education in educational establishments.

These scenarios show that, unless the Commission’s proposal is substantially amended, several European countries will be stuck with narrow copyright exceptions that will continue to curtail educational practices at various levels.

Further reference

• Download the study
• Download the infographics

The study is part of our RIGHT COPYRIGHT campaign. If you have not done so, we encourage you to go to the campaign website and sign the petition to ask for a better copyright reform for education.

The post Copyright and Education in Europe: 15 everyday cases in 15 countries appeared first on COMMUNIA Association.

Strong voice of El Pais

El País, the largest and internationally most renowned Spanish daily newspaper, has published an op-ed strongly criticizing the idea of introducing the ancillary copyright for press publishers:

But anybody who thinks that those rights can be turned into a fortress from which to impose obligatory and inalienable fees is mistaken. This is a model that has been shown to fail in Germany, in 2013, and in Spain in 2014. Then, efforts to impose an obligatory fee on Google for the use of links to news stories provoked a major fall in web traffic for the Axel Springer group and the closure of Google News in Spain.

What is crucial, El Pais understands the value of digital technologies for press publishers, while many others, especially big German publishers, threat internet as a threat for their business model.

Thanks to the new digital technologies, we are able to reach millions of people we would never have been able to using the old, traditional print methods, while at the same time offering our readers more and better stories in real time and in more attractive formats.

The business of selling only print newspapers is over and will not be back. What publishers should do is to  is adjust their business models to benefit from opportunities created by internet, and not asking for more (copy)rights without providing any evidence that more right actually help them (instead of just hurting others).  El Pais voice, coming from a country with first-hand experience of the ancillary copyright, is invaluable in this ongoing debate.

El Pais is  not the only one who claims that the best scenario for article 11 is to delete it. The same idea was raised by various groups including other press publishers,   European Research Centres and European Copyright Society. Many MEPs also oppose the idea.

Cooperation v. confrontation

What is underlined in the El Pais op-ed is that a way forward shall be based on cooperation between the media and technology companies, rather than on confrontation. Not all publishers share the same future-oriented approach. Recently Christian Van Thillo, CEO of the Belgian publishing house De Persgroep, has published an op-ed in POLITICO titled ‘Using copyright laws to protect free speech’. He has built her pro-ancillary copyright narrative on ill-funded grounds:

Our websites have become platforms for news, comment and debate. But on average 47 percent — and sometimes as high as 67 percent — of readers who find our content on other platforms stay on the landing page and do not click through to publishers’ websites. As a result, a small number of very large companies, and a large number of smaller companies (often gilded with the term “startups”), are getting raw materials for free, which they then reuse and sell with no benefit to those who produced them. This does not happen in other industries.  

Such conclusion was driven from Eurobarometer survey where participants were asked “When you access the news via news aggregators, online social media or search engines, what do you most often do?” The participants were offered three options, but could only choose one:

1. Browse and read the main news of the day, without clicking on links to access the whole articles. (47%)
2. Click on available links to read the whole articles on their original webpage. (45%)
3. You never access the news via news aggregators or online social media. (6%)

The question referred to the “most often” behaviours, not the only one of certain participant and multiple answers were prohibited, therefore it is challenging to claim that the survey presents accurately users’ practice regarding news access. Moreover, these numbers also show that news aggregators are beneficial for publishers since a vast majority of participants use them to access news.

We hope that the final decision on the ancillary copyright will be based on market facts and evidence, instead of emotions against “commercial theft and the wholesale scrapping, copying and monetization of our [publishers’] content” as Christian Van Thillo describes aggregators providing better and more targeted mechanisms to search content that publishers were ever able to create.

The post Spain’s El Pais newspaper comes out strongly against ancillary copyright madness appeared first on COMMUNIA Association.

Chances are we will not have full clarity on the evidence that substantiated the proposed directive on copyright in the digital single market. After European Digital Rights filed a request to access the correspondence between Commissioners, cabinets and services on the proposal for a copyright Directive in October 2016, the recent response was that there is 1 (ONE!) email that meets the criteria. It would seem that the Commission have a strong oral tradition and excellent collective memory if this is really the only recorded evidence to attest to the quality of the process.

To make things worse, the email cannot be revealed because “the disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure”. We believe that the public interest in knowing how absurdities such as new rights for publishers or the upload filter found its way to the proposal is indeed overriding the secrecy of the only email that has ever been exchanged on the topic. Obviously EDRi has filed a confirmatory application to review the handling of the request that is yet to be considered by the EC.

To learn more about the legality of the most problematic parts of the proposal, Centrum Cyfrowe, COMMUNIA member, filed a FOIA to access the European Commission’s legal service opinion(s) on the drafts of the proposal on February 13, 2017. With the two processes, the Commission has a chance to make the right choice and spill the beans on their intel and sources. If the European Commission decides otherwise, we will be left wondering if the proposal is a result of some intense industry lobbying, or perhaps of unpreparedness of DG Connect to properly address challenges of the 21st century.

Refusal will give a bad name to the EC legal services that could have let out a really bad piece of lawmaking that contradicts existing regulation as well as the EU case law. Moreover, the Commission will prove again that it is one of the least transparent European institutions while keeping its finger on the trigger of change that will shape our digital lives for many years to come.

The post European Commission doesn’t want to say how the directive was conceived appeared first on COMMUNIA Association.

Join us to discuss key aspects of the current EU copyright reform including the freedom to use copyrighted works (exceptions and limitations) as well as some of the failures of the existing legal framework (copyfails). After the event we invite you to lunch in Jan 3q Brasserie.

Copyright Reform: Unlocking copyright for users? – agenda

11:15 – 11:20      Introduction
Anna Mazgal, Communia

11:20 – 11:25     Welcome
MEP Therese Comodini Cachia (EPP)

11:25 – 11:35      How to understand the L&E practice better?
Launch of copyrightexceptions.eu – Maarten Zeinstra, Kennisland

11:35 – 11:45     What doesn’t work?
The #copyfails and ways out of the copy mess – Diego Naranjo, EDRi

11:45 – 11:55     What works?
Presentation of the Best Case Studies – Teresa Nobre, Communia

11:55 – 13:00    Questions and discussion
facilitated by Anna Mazgal, Communia

13:00 – 13:05   Commentary
MEP Carlos Zorrinho (PASD)

13:05 – 13:15   Closing remarks
MEP Therese Comodini Cachia (EPP)

13:15 – 14:00   Lunch
Brasserie Jan 3q

RSVP by Monday August 29 to rsvp@communia-association.org

If you do not yet have an European Parliament pass, we kindly ask you to include the following information in your RSVP (without a visitor pass and your passport you will not be able to enter the building):

First name and family name
Date of birth
Nationality
Type of ID
Number of ID

The post EVENT Copyright reform: Unlocking copyright for users? appeared first on COMMUNIA Association.