A brief history of ancillary copyright in Europe

For a long time, COMMUNIA has been critical of attempts to introduce additional rights for (press) publishers (see here for a collection of previous posts). The adoption of these ancillary rights would permit publishers to monetize the use of small snippets of text by news aggregators, search engines, and possibly others who collect and share links to publishers’ articles (hence the term: link tax). It first showed up in Germany and subsequently found its way into Spanish copyright law. It is well documented that in both cases the introduction of these new rights has failed to achieve the objectives of their proponents.

These failures have not prevented publishers from trying to get such a right created on a European scale. While the idea was not present in the Commission’s Digital Single Market strategy, Commissioner Oettinger made no secret of his sympathy for the idea, and made it clear that it could surface at any moment.

During the parliamentary discussion of the Reda report, attempts to include a new right for publishers were voted down by a parliamentary majority. In spite of this clear rejection of the idea by the European Parliament, the Commission included thinly-veiled language pointing toward the introduction of new rights in last December’s communication on a modernisation of the EU copyright framework:

The objective will be to ensure that the players that contribute to generating such value have the ability to fully ascertain their rights, thus contributing to a fair allocation of this value and to the adequate remuneration of copyright-protected content for online uses.

By launching the ongoing consultation, the Commission made it clear that it wants to fill this value gap by granting additional rights to publishers throughout the EU. This is a huge win for the publishers who have spent considerable effort lobbying behind the scenes to get here. Their close involvement in this process is clearly demonstrated by the fact that they managed to launch a dedicated campaign website mere hours after the Commission opened the consultation. While the Commission’s own consultation is relatively vague on the details of a possible neighbouring right for publishers, publishinersrights.eu is so confident in their ability to infulence the Commision that they explain what the Commission will propose after having concluded its consultation (empahsis ours):

A publisher’s right, as proposed by the European Commission in consultation with all stakeholders, is a right that will aim to protect the copyright of a press publication as an entity in itself, as opposed to the copyright of an individual article. This right will apply to the reproduction, the communication to the public and the distribution of the publication.

When it comes to the question of why publishers need additional protections (which are already protected by copyright) the publishers are less forthcoming, implying that they deserve a neighbouring right because broadcasters and film and music producers also get neighbouring rights protection.

The case against additional publishers’ rights

COMMUNIA and others concerned about the public domain and access to culture think that granting any additional rights are problematic. The problem with copyright is not too few rights, but too many rights that are too broad and last too long. It’s a truism that the scope of copyright law today bears no relation to the economic lifespan of the vast majority of cultural works. The adoption of ancillary copyright for press publishers is problematic for the following reasons:

• Rights clearance becomes even more burdensome if additional rights need to be cleared before a work can be used. This problem is widely acknowledged and negatively affects all types of users, including cultural heritage institutions, researchers, start-ups and end users. Creating additional rights that need to be cleared will make it even more difficult for all of these groups (even if it is less of a concern for large, established players who can afford the costs that come with rights clearance).
• The experience with neighbouring rights for publishers in Spain and Germany shows the intention of publishers to use such new rights to restrict or monetize the ability of others to illustrate links to published content with short snippets—even as short as 8 words (and most headlines are longer than that). This effectively makes linking to published content conditional on permission by the rights holders (or payment of a licensing fee, which is why such rights are called a “link tax”) and limits how people can express themselves online.
• While there is a strong lobby from many publishers for introducing such a right, not all publishers are in favor. Some professional publishers recognize that taxing the links that bring readers to their sites is counterproductive to their businesses. In addition, bloggers, open access publishers, and other authors who seek the widest possible dissemination of their content would not be well-served by an ancillary copyright. Introducing a new right will negatively affect their business models, as we’ve seen in Spain, where the publisher’s  right is not waivable.

It should be clear that creating an additional copyright for publishers is the wrong way of addressing the problems faced by publishers in the digital environment. Creating a new right for publishers only makes sense if publishers can use it to restrict or monetize activities that are not restricted by copyright and as a result such a step has the potential to create massive collateral damage to access to information, freedom of expression, and business innovation. If the ineffective but never repealed EU database right is any indication a new right for publishers is likely to be irreversible, even if the desired positive effects do not materialize. Rights once granted are very difficult to revoke and intervening with such a blunt tool into a dynamic environment like the internet would be very foolish.

It is unfortunate that the Commission has made additional rights for publishers part of its agenda to modernize copyright. But the ongoing public consultation provides an opportunity to voice our concerns and opposition. You can respond directly to the consultation on the Commission’s site, or through an easy tool on youcan.fixcopyright.eu. Let the Commission know that a modernization of the EU copyright framework cannot include additional rights for publishers.

In the following posts we’ll address how additional rights for publishers will negatively affect creators, end-users, and cultural and educational institutions.

The post Ancillary Copyright, Publishers’ Right, Link Tax: a bad idea under any name appeared first on COMMUNIA Association.

Less than three weeks after the European Commission launched a consultation that appears to be designed to create additional copyrights for publishers, Hachette CEO Arnoud Nourry warned his international publishing colleagues that Google is a bigger threat to publishers than Amazon and greatly benefit from what he called “the European Commission’s senseless attack on copyright”. According to a summary of his talk provided by the Bookseller, he then went on to declare that:

… vast exceptions to copyright law for libraries, for education, for fair use” could provide an opening for Google to rebrand itself as a library, opening up its repositories of scanned content for free and profiting from advertising income [and] questioned why the EC was targeting publishers: “It is as if the Commission had made it a priority to weaken the only European cultural industry that has achieved worldwide leadership. Need I remind you that nine of the 12 largest publishing companies in the world are European?”’

To anyone following the relatively tame course the Commission has charted out for reviewing the EU copyright rules, this looks like a relatively ill-informed overreaction by a publisher who seems to be offended that European legislators dare to even think about modernizing EU copyright without asking the publishing industry for permission first. The obsessive focus on Google as an evil outsider intent to destroy culture-as-we-know-it highlights the unease the traditional publishing sector still feels when it comes to all things digital.

Surely every economic sector is entitled to its own approach to dealing with a changing environment, and it evident that publishers have an important stake in a review of the existing copyright rules. But it is questionable whether their entrenched market position calls for blindly striking out at everyone who is not a publisher (Google, the Commission, libraries). Watching this happen would be somewhat entertaining if Monsieur Nourry had not chosen to criticize a sector that is arguably most in need of updated copyright rules: libraries (and by extension the entire cultural heritage sector).

Arguing that libraries are proxies for the commercial interests of Google and other companies shows a complete lack of respect of the role and function of libraries and other public cultural heritage institutions in providing crucial access to information and cultural resources. A coalition of European library associations condemned Nourry’s comments, stating, “libraries are specifically designated worldwide as institutions necessary for serving the global public interest for a non-commercial purpose…[w]e go about our work for no direct or indirect economic gain.”

Cultural heritage institutions deserve better copyright rules

In Europe, publicly-funded libraries, museums, and archives are independent institutions, and have a proud tradition of operating without pursuing any direct or indirect economic gain. They exist to protect and promote the interests of their users – citizens, creators, students – and not to conspire with commercial entities for financial gain.

European cultural heritage institutions support a balanced copyright system where everyone has access to information and creativity, and creators are fairly rewarded. Unfortunately this balance no longer exists: The EU copyright rules that have traditionally provided exceptions to copyright tailored to allow cultural heritage institutions to pursue their public interest missions are stuck in the semi-digital mindset in place since the turn of the millennium. They don’t allow institutions to digitize their collections on a large scale, they make it nearly impossible to make works that are under copyright—but which have been effectively abandoned by their rightholders—available online, and they do not provide adequate protections against restrictive contracts and licenses that threaten to upend the privileges enjoyed by libraries and other institutions.

This sorry state of the copyright framework is preventing cultural heritage institutions from providing access to their collections in a way that internet users expect. No one (not even the publishers) benefits from the fact that cultural heritage institutions face enormous problems in making their collections available online because large parts of these collections are still in copyright but have been abandoned by their rightholders, who are not around to grant the required permission to make them available. This inability for GLAM institutions to make their collections available in the way that the public expects will threaten their very existence. Why should the public continue to pay for cultural heritage institutions if they are only granted online access to a small percentage of the shared commons of cultural works?

Publishers need libraries (and vice versa)

By attacking the limited and reasonable reforms that cultural heritage institutions are asking for, Monsieur Nourry is contributing to a sad dismantling of the long tradition of publicly funded European cultural heritage institutions. If publishers really want to prevent an information monoculture, where access to information is controlled by a small number of online platforms, then they should work with the cultural heritage institutions to strengthen their ability to operate in the digital environment.

A healthy and vibrant cultural heritage sector is an important asset for creators (and by extension their publishers). Authors rely on libraries, museums, and archives as places of inspiration, research, and raising awareness for their work. It is a shame that the publishing industry, blinded by its unwillingness to accept the digital reality, seems to have have lost the ability to see this.

The post Contrary to what publishers think, Libraries serve the Public appeared first on COMMUNIA Association.

However, while the final version of the report did not suggest restricting freedom of panorama, it did not include a specific provision to protect it, either. Instead, member countries would still be free in whether and how to implement such a limitation into their respective national copyright laws. In a way, this outcome is a typical example of the widespread copyright extremism in Europe, which blocks even the most sensible and moderate copyright reform proposals.

The overall spectrum of opinions in current copyright debates ranges from abolitionism, that is, proposals to discard copyright altogether, to copyright extremism on the other side. Copyright abolitionism is a position sparsely mentioned in regulatory conversations. While authors Joost Smiers and Marieke van Schindel, for instance, have managed to create some buzz around their book “No Copyright”, the attention was only short-lived and the discussion left no real lasting mark on the conversation overall. And abolitionist positions brought forward by libertarian researchers such as Michele Boldrin, David K. Levine and their colleagues have only played a very marginal role in scientific discourse, as well.

However, we observe that rhetoric around ratcheting up extreme copyright protections plays a major role in the mainstream of regulatory conversations around copyright, while rarely recognized and called out as extremism. Rather, even the most far reaching positions are considered perfectly legitimate when brought forward in committee hearings, policy papers or campaigns. In a way, current copyright discourse is heavily skewed towards the side of copyright extremism, which makes any moderate and balanced reform of copyright laws difficult, if not impossible. Taking a closer look at the relentless rhetoric of copyright extremism might therefore help to identify and address this problem.

(1) More copyright protection is always better

Copyright extremism supports any extension of copyright protection, calling for the extension of terms to more than 100 years or introducing additional rights such as the German ancillary copyright for press publishers. Following this logic, copyright extremists believe that copyright protection could never be “too strong”. Therefore, any attempts at reducing current protection levels is considered to be wrong, and a fundamental attack on copyright itself.

However, such a stance ignores that not only too little protection might lead to a “Tragedy of the Commons” (with suboptimal provision and utilization of creative works), but also that too much protection might lead to the same result – something Michael Heller has termed “Tragedy of the Anticommons” (see also his book “The Gridlock Economy”). With increasing length and scope of copyright protection, the process of clearing rights becomes ever more difficult and costly, thus prohibiting the creation of new works and businesses that depend on access to previous works. In a way, copyright protection follows the old saying in life: you can have too much of a good thing.

An example of anti-commons problems are music mashups, which creatively re-combine pieces of different songs to create new compositions. Mashups are increasingly popular in social networks – David Wessel aka “Mashup Germany” has 250,000 fans on Facebook – but they are not played on the radio and cannot be purchased as downloads due to rights-clearing issues. Sharing a mashup online (even without a profit motive) might lead to a swift copyright takedown notice or an account being blocked on platforms such as Soundcloud. In effect, a vibrant and creative music genre is being marginalized because of an overly-restrictive copyright regime.

The relation between copyright protection level and positive effects on provision and usage of creative works follows an inverted U-shape, as illustrated in the figure below. You can see the extreme positions represented at either end of the U-curve, where supporters instead advocate for abolishing or maximizing copyright protection, respectively.

(2) No need for copyright reform due to Internet and digital technologies

When reading through the comments from conventional rightsholders to the questions on the EU Commission’s public consultation on copyright, one might think that we are already living in the best possible copyright environment. Aside from stronger enforcement provisions aimed at fighting online piracy, many respondents didn’t see any need for copyright reform; clearing rights individually for each use or via a collecting society is deemed to be sufficient.

Such an assessment of existing copyright law puzzles anyone that runs into copyright barriers all across the web in the course of even the most mundane activities such as uploading smartphone videos – not to mention those engaging in new creative practices such as remix, mashups or memes. Just a few years ago, copyright had been a niche topic mainly concerning professional artists and creative industries. Today, everyday online practices of average users regularly intersect with copyright law.

Also, the current regime of optional limitations and exceptions to copyright law – with country-specific implementations throughout the EU – is one of the major obstacles in achieving a digital single market (see also a recent call by leading copyright scholars for a unification of EU copyright.)

In addition, technological advances affect the balance between stakeholder groups. While libraries can lend printed books without restrictions, there is no corresponding right for them to lend e-books; instead, librarians struggle with copy-protection measures (Digital Rights Management, DRM) and restrictive contract agreements with publishers, which may even prevent uses covered by existing copyright exceptions. The current legal situation prevents society from realizing the massive potential for increasing access to digital works. Instead, our legal regime is making the use of digital works often more difficult than printed works – even when it comes to online usage (see, for instance, a recent decision by the EU court of justice on the right of libraries to digitize and make available printed books).

(3) Criticizing restrictive copyright regimes only helps Google, Facebook, etc.

The two rhetorical strategies discussed so far constitute the kind of positioning represented in the right hand corner of the figure above. The third strategy is different from the first two, since it is only reactive, trying to disavow criticism of an overly restrictive copyright regime. The key argument is that any reduction in protection levels only boosts the profits of incumbent platform providers such as Google, Facebook or Amazon at the expense of the creator’s income. However, such an outcome is neither universal nor inevitable.

In fact, the often-criticized large platform providers can perfectly live within the current state of copyright law. They have the resources and the market position to clear rights and to bear the costs of regulatory uncertainties. With its Content ID algorithm, Google’s video service YouTube even manages to make a profit out of an impenetrable thicket of rights, while at the same time increasing market entry barriers for competitors. To a certain degree, an overly complex and restrictive copyright regime strengthens the position of large platforms, with non-superstar artists such as Zoe Keating paying the price. Less permission culture–that is rights clearing between individual parties–and more collective licensing (such as in the case of traditional radio or web radio) would increase diversity of and competition between service providers.

The consequences of individual copyright reform proposals such as new limitations to copyright (e.g. a remix exception) or a unified EU copyright on income distribution among creatives and intermediaries cannot be known a priori; rather, consequences strongly depend on design and implementation of any such reform proposal (e.g. via lump sum payments in exchange for new exceptions). This is compounded since the distributive effects of both technological and regulatory changes are mediated by contracts with publishers (see, for example, the recently leaked contract details between Sony Music and Spotify, which revealed provisions at the expense of artists).

Conclusion

More than ten years after the EU passed its EU copyright directive, we can observe a growing consensus that copyright laws need to change to account for the potential of the internet and new digital technologies. The Commissioner for Digital Economy and Society Günther Oettinger tweeted “We are in the midst of digital revolution. We need a copyright reform”, and the EU Parliament adopted MEP Reda’s report outlining potential changes to the copyright directive. However, when it comes to actual reform proposals, as was outlined by Paul Keller in his assessment of the Reda report, politicians “fail to demand real copyright reform”. Many proposed changes to copyright regulation are considered inadequate to address the massive upcoming challenges presented by pervasive digital technologies and the ease of sharing on the web.

To a certain degree, this is due to the fact that copyright extremism is not recognized as such and treated accordingly. Imagine how much farther we would be if we collectively acknowledged three simple truths central to the debate on copyright reform: (1) copyright protection levels can sometimes be too low (resulting in suboptimal utilization of creative works) and sometimes be too high (resulting in near-perpetual copyright terms, permission culture, and expansion of rights into new areas); (2) the internet and new digital technologies require changes in current copyright regulation for it to become balanced with respect to stakeholder interests; and (3) weaker copyright protection and stronger (and harmonized) limitations to copyright are rarely in the interests of large platform providers, with distributive effects depending on design and implementation of reform proposals.

As soon as these simple truths can constitute a shared starting point in ongoing copyright debates, the question will no longer be whether we need copyright reform but rather which reform we want. This would still leave enough room for controversy, but hopefully prompt a more fruitful and constructive conversation.

The post The Rhetoric of Copyright Extremism appeared first on COMMUNIA Association.

Loren states that the term, which was first introduced in 1999, overlooks the core of the problem:

These works are being held hostage by a set of rules that result in an inadvertent lock-up of the expression these works contain. (p.22)

In the context of hostage works, the incentive for creation functioned as intended: the work was created. But the incentive for distribution has actually backfired. Instead of a risk of underinvestment in distribution we have a manifestation of such underinvestment. Copyright protection is obstructing distribution, not enabling or facilitating it. This is a type of waste: copyright law is “inhibiting access . . . without any countervailing benefit.” In addressing the hostage work problem, we should be focused on a solution that reduces the waste by removing the barriers to non-owner distribution. (p.23)

Focussing on the hostage status of these works helps with devising a system that can deal with the manifest market failure that hostage works represent. While Pallas Loren’s paper discusses possible solutions against the backdrop of US copyright law, her arguments are surprisingly powerful in understanding the current discussion on the European Union level. As we have pointed out before, the current legislative discussion is likely to make the hostage works problem even worse. This is partly to blame on the framing of the problem as an ‘orphan works’ problem that results in a focus on re-uniting these works with their ‘parent-authors’ and protecting them against inappropriate exploitation.

In the second half of her paper, which proposes a solution to the problem, Loren suggests focusing on the role of access facilitators such as libraries, museums and archives (whom, in an somewhat questionable extension of the hostage works metaphor, she refers to as ‘special forces’) and their role in setting hostage works free:

The access facilitators are those entities that are interested in distributing copies of the orphan works themselves but fear the infringement liability for doing so. Libraries, archives, museums and other similarly focused entities see providing access to these works as helping to advance their core mission of spreading knowledge in their fields. (p.23)

[These] access facilitators really are the “special forces” that are freeing the hostages. This role will typically be played by libraries, museums, nonprofit educational institutions, archives, and public broadcasting entities, although my proposal is in no way limited to these entities. In addition to the public that will be obtaining access to a work previously held hostage by the rules of copyright, an important beneficiary of the actions of these special forces will be the derivative work creators who should be able to rely on the identification of works as hostage works and, particularly as time passes without a copyright owner surfacing, be willing to use such works. (p.25)

Loren argues that what is needed is a set of defined rules for access providers that engage in freeing hostage works that need to be coupled with reasonable incentives for the access providers to undertake this effort on behalf of the public at large:

Freedom for hostage works comes in the form of reliable information concerning the copyright status and the copyright owner of the work. Through the sharing of reliable information, the hostage works will be freed for exposure to interested audiences and potential users of such works. Existing databases can assist with the search for such information, but someone must invest resources in researching those databases, connecting the discovered information to a particular work, and disseminating the information discovered. Thus, creating incentives to produce and publicize this type of high quality information should be a prime focus of any approach to solving the “hostage work” problem. (p.26)

This approach sounds a lot like the approach proposed by the Europeana Commission in it’s original proposal for a directive on certain permitted uses of orphan works. As we have pointed out before the proposed directive has become watered down quite a bit especially where it comes to the incentives that encourage access providers to undertake this work. The initial proposal contained provisions that would have offered some form of immunity from legal and monetary liability to access providers that would follow a diligent search according to criteria defined by the directive. This closely mirrors the solution proposed by Loren:

I propose an immunity from monetary liability for entities that act as responsible “special forces” and free hostage works so long as the entity satisfies two criteria. First, the entity must not be negligent in designating a work as a hostage work or in its approach to correcting status information and removing digital access to a work inaccurately (albeit non-negligently) identified as a hostage. […] Second, in order to gain special forces immunity from monetary liability the entity should be required to provide an open access copy of the work with embedded hostage freeing information related to that work.(p.27)

This last part of her argument is really interesting and goes beyond what has been proposed so far. The open access requirement for freed hostage works not only prevents freed hostages from being monopolized by another entity, it also underlines the public service nature of the act of freeing such works:

The requirement of providing open access to the work is a way to ensure the public benefit in return for granting a reduction in liability. In a quid pro quo arrangement that is a familiar way to think about the exclusive rights granted by intellectual property protections, I suggest that the public benefit is best accomplished by a requirement to provide a open access copy of the work with attached information concerning the copyright and copyright owner status.(p.27)

The argument brought forward by Loren of linking open access versions together with the information gathered in the process of trying to identify the rights holders is not only essential to solving the hostage works problem, it also points to a new role for cultural heritage institutions in the digital environment:

The information that is gathered and disclosed by the special forces in connection with the open access copy must not be subject to claims of exclusivity. For example, that data should be released under express conditions of no assertion of ownership in that information. This type of metadata must be freely and widely available for re-use. One way to satisfy this important responsibility would be to employ the Creative Commons Zero Universal Public Domain Dedication, a legal tool developed to make data available without restrictions on re-use.

Requiring public disclosure of the hostage freeing information permits inspection by others, and may, in fact, lead to the identification of the copyright owner. If that occurs, that copyright owner should then be able to have the provenance information corrected and, if the owner desires, have that work removed from the open access repository. (p.35)

The required infrastructure for this is of course already in place. Over the last couple of years the European Commission has invested millions of Euros into Europeana, a platform that can provide access to open access copies of liberated hostage works as well as the related hostage freeing information.

The only piece of the puzzle outlined by Pallas Loren that is currently missing is the political will to enact legislation that is focussed on liberating the vast amounts of works held by publicly funded memory institutions that are currently held hostage by copyright. Unfortunately the current legislative proposals seem to be caught up in the ‘orphan works’ logic and primarily focus on re-uniting these works with their parent-authors. Pallas Loren’s paper is a powerful and well-argued reminder why this ‘solution’ will benefit no-one and how a real solution could look like.

The post Time to change perspective: Hostages, not Orphans appeared first on COMMUNIA Association.