Over the past few weeks, rightholder organisations united in the Creativity Works! Coalition have started a massive campaign attempting to neuter one of the core recommendations contained in the report: A request to the European Commission to undertake “a comprehensive revision of the Geo-blocking Regulation by 2025 the latest, with a particular view on an inclusion of audiovisual services in the scope of the Regulation.”

How is it possible that such a seemingly procedural request about the review of a piece of legislation is provoking such a strong reaction from rightholders? A campaign that is headlined by the following statement that features prominently on the campaign website:

Geo-blocking is one of the foundations for Europe’s creative and cultural sectors, providing Europeans with the means to create, produce, showcase, publish, distribute and finance diverse, high-quality and affordable content.

The idea that denying people access to culture is a “foundation for Europe’s creative and cultural sectors” is of course a rather disturbing one, but points right at the heart of the problem that the IMCO report is trying to address.¹ As long as AV rightholders do not even see that denying people access to cultural productions — that they want to pay for! — is nothing but blatant discrimination based on geographical location, requiring a regulatory intervention.

After having gotten a free pass when the original geo-blocking resolution was adopted, the upcoming review must now include an effort to bring AV services within the scope of the regulation to end this unjustified and counterproductive practice.

What the AV sector is doing with this its current campaign is trying to prevent EU lawmakers from reviewing the regulation, while no-one outside of the creative industries is paying attention, because they know very well that their arguments against inclusion do not have much to stand on.

A bit of history

So how did we get here? The 2018 Geo-blocking Regulation was adopted to make an end to unjustified geographical restrictions in the sale of goods and services within the EU. It addressed the problem of so-called “geo-blocking” — the baseless discrimination of customers accessing such services from other member states — with the aim to facilitate access to cross-border offers within the EU’s internal market. The directive contains a number of exceptions to this principle, one of these excludes audio-visual services from its scope. This exception has been the result of intense lobbying by the AV sector, which had argued that the underlying business models allowing the sector to thrive rely on territorial copyright licensing and that in order to make such licensing work in the online environment, online services must be able to block access from unlicensed territories.

In 2020, the European Commission published its first evaluation report covering the first 18 months of implementation of the Regulation. Regarding a possible extension of the scope of the Regulation to audio-visual content, the report highlighted potential benefits for consumers, (the availability of a wider choice of content across borders) but also identified a potential impact that such an extension would have on the overall dynamics of the audio-visual sector. The report did not contain specific suggestions or a concrete timeline to revise the Regulation, instead it identified a need to further assess the situation.

As a follow up of the evaluation report, the Commission launched a stakeholders dialogue on cross-border availability and access to audiovisual content across the EU. COMMUNIA has been part of this stakeholder dialogue (as one of only three organisations representing consumers and the public interest) which had the objective to let stakeholders propose concrete, non legislative, measures to improve the online availability and cross-border access to audiovisual works across the EU. Most, if not all, of the organisations that now campaign against the adoption of the IMCO report also participated in this stakeholder dialogue. Throughout the stakeholder dialogue, these organisations mainly sought to undermine the process by questioning the legitimacy of the process and stating that geo-blocking is essential to their financing models. While the stakeholder dialogue resulted in a number of proposals (including one from us), none of the organisations representing rightholders submitted any proposals aimed at improving cross border access. Instead they asked for more funding and tried to deflect the discussion towards the non-issue of “findability” of legal content (something the current campaign attempts as well).

In other words, the very same organisations that successfully sabotaged the stakeholder dialogue aimed at finding non-legislative solutions for geo-blocking of audio visual content are now lobbying against having EU lawmakers take another look at the issue.

But what is really at stake?

If you have to believe the campaign website set up by the Creativity Works! Coalition, then ending Geo-blocking of AV content would harm “15 million creative sector jobs” and “jeopardise a €640 billion industry.” These numbers are, even by the vastly inflated Brussels lobbying standards, simply absurd as they imply that the entire European Creative and Cultural Industries would be affected by a possible inclusion of AV services in the scope of the Geo-blocking Regulation — something that is obviously not true.²

It is true that territorial licensing arrangements play an important part in the financing arrangements for audiovisual productions (something that we have acknowledged in our submission for the stakeholder dialogue). However this does not mean that in order to preserve the ability to licence it is necessary to geo-block access to AV works from unlicensed territories within the EU.

Most of the claims about economic and cultural damage made by the CW! campaign find their origin in the idea that the IMCO report would require the AV sector to abandon territorial licensing, which is something the IMCO report does not propose. On the contrary, the need to safeguard territorial licensing is mentioned repeatedly throughout the report.

The report also does not call for a shift towards an EU-wide licensing for audiovisual services. However the CW! Campaign repeatedly points to the costs of such EU-wide licenses as the basis for its predictions of further consolidation in the industry that would lead to less cultural diversity.

Another aspect of the report that is under attack by the CW! Coalition is the fact that the report makes a link between increasing demands for cross-border access to AV by consumers and the increased use of VPNs, which allows them to circumvent geo-blocking. Here. the industry would very much prefer the report not to describe existing consumer behaviour that does not align with the picture of reality that they would like to see.³

As a result, one of the core insights of the IMCO report, that as a consequence, the adaptation of existing business models to the changing environment is needed both for consumers and businesses is once again at the risk of being ignored. Rightholders are seeking to get this conclusion removed from the report because the stakeholders on the supply side of the AV sector have again decided that rather than adapting to and working with consumer expectations, they can rely on their considerable lobby power to preserve the status quo that they have gotten comfortable with.

The European Parliament should resist caving in to this ongoing campaign against the IMCO report, and support the report’s call for an evidence-based revision of the Geo-Blocking Regulation in the next mandate. Contrary to what the CW! Campaign wants us to believe, this would neither mean the end of territorial licensing, nor the demise of the European Cultural and Creative Industries and it would also certainly not lead to less cultural diversity. If done well, ending geo-blocking would provide all Europeans with more legal access to a more diverse offering of AV content and a thriving cultural sector that can finally stop claiming that denying people access to culture is in anyone’s interest.

Endnotes

1. It seems that the creators if the campaign are at least marginally aware of this given that a position paper published by the campaign attempts — somewhat cringe worthy — to reframe “geo-blocking” as “geo-enabling”.
2. The numbers used by the campaign come from a 2021 EY study that defines the Cultural and Creative Industries as the combination of the following sectors: Advertising, Architecture, Audiovisual, Books, Music, Newspapers and magazines, Performing arts, Radio, Videogames and Visual arts. A substantial proportion of these has nothing to do with audiovisual content and geo-blocking is relevant only in a very small sub section of these sectors.
3. This is reminiscent of multiple exchanges during the stakeholder dialogue during which mentions of piracy as a rational response to being denied lawful access to a desired cultural good, were met with horrified responses from rightholders demanding that mentions of illegal acts should not be permissible in the context of the stakeholder dialogue.

The post Denying people access to culture is in no-one’s interest – let’s pave the way for a revision of the Geo-blocking Regulation! appeared first on COMMUNIA Association.

In other words, the question that MEPs will have to decide this week, is if we accept the fact that fundamental principles of the Internet get thrown overboard at the request of particular industries who stand to benefit from such a move, even if it is clear that everybody else will be worse off as a result. Over the past weeks it has become clear that people are not happy with this prospect. MEPs have been overwhelmed with angry mails from Internet users, online creators have warned about the end of certain forms of creativity, people have taken to the streets in more than 30 places across Europe and more than 145 civil society organisations once again confirmed their opposition to the proposed measures.

In the light of these massive protests, the music industry which is the driving force behind the Article 13 upload filters is in damage control mode trying to downplay the effects of the measures it is calling for. Their fairly ridiculous attempt to position article 13 as “pro memes and mashups” was quickly debunked on social media and by European copyright scholars. The fact that scholarly opinion on the proposed changes, which largely overlaps with the perception by users, has been completely ignored by the members of the JURI committee is one of the driving forces behind the attempt to stop the JURI negotiation mandate this week.

So who is in favour of the measures approved by JURI and who is against them? Who should European lawmakers listen to when it comes to deciding on changes to the copyright regime that will have far-reaching effects for users, creators and businesses alike?

In favor of the JURI mandate: The position adopted by the Legal Affairs committee is supported by pretty much any organisation representing rightsholders and professional creators that is active in Brussels.

Against the JURI mandate: On the other side of the Debate we find the Civil Liberties and Consumer Protection committee of the European Parliament (both of which had adopted a more reasonable version of Article 13), more than 50 civil liberties organisations, organisations representing technology startups and software developers who all stand to lose from the proposed measures. Equally important are the warning voices coming from academics at Europe’s leading IP research centers, a group of the original architects of the Internet, the United Nation’s special rapporteur on the freedom of expression. Other critical voices come from creators, the Wikipedia community and hundreds of thousands of Internet users who have been contacting their MEPs via saveyourinternet.eu (and other platforms).

Most of these voices have been ignored by the debate in the JURI committee which has shown a particular disregard for independent expertise throughout the process. It is now up to all members of the European Parliament to decide if the Parliament should enter into negotiations with the Member States and the Commission based on the narrow view taken by the members of the JURI committee or on a view that takes these voices into account.

The post European Parliament to vote on copyright reform mandate this week – who’s voice will matter? appeared first on COMMUNIA Association.

Unfortunately, the direction of the discussions in the JURI Committee clearly point toward an EP position that would support mandatory upload filters. In this situation, it is important to remember that for almost a year, the European Parliament has been sitting on an opinion from the Internal Market and Consumer Protection (IMCO) Committee that would limit the negative effects of Article 13. Since then, the text of the IMCO opinion, adopted on the 8th of June 2017 (!), has also been adopted by the Civil Liberties (LIBE) Committee.

Persuant to the European Parliament’s procedural rules, both LIBE and IMCO are associated committees. This means that their versions should form the basis of the discussions in the Legal Affairs Committee. Yet the difference between the current compromise proposed by MEP Voss and the IMCO/LIBE text could not be greater. This becomes evident when comparing the internal logic of the JURI/LIBE version (flowchart below) with a flowchart depicting the internal logic of the JURI version (see here):  

The IMCO/LIBE text is a substantial departure from the flawed logic of the Commission’s proposal. Instead of trying to force all open platforms, regardless of their business models, into collaborating with rightsholders and deploying upload filters, the IMCO/LIBE text tries to differentiate between activities of open platforms that are covered by the liability limitation of Art 14 of the e-Commerce Directive (ECD) and activities of platforms that are not. All further provisions of the IMCO/LIBE version only apply to those activities of open platforms that are not covered by Art 14 ECD. These provisions still contain an obligation to obtain licensing agreements (for services that are not covered by Article 14 ECD this is nothing new) and an obligation to “take appropriate and proportionate measures to ensure the functioning of licensing agreements concluded with rightsholders”.  This is a toned-down version of the filter language in the Commission’s proposal.

In the IMCO/LIBE text this requirement is counterbalanced by requirements on the platforms and rightsholders to “put in place complaints mechanisms that are available to users in case of disputes over the implementation of the licensing agreements” and an explicit requirement that users must be provided with a possibility of “asserting their right of use under an exception or limitation”.

The LIBE/IMCO approach is much more reasonable and would have a smaller impact on the freedom of creative expression in Europe. Stripping away the liability protection that has allowed a wide variety of online platforms to flourish (as proposed by the Commission and now backed by the Council) is guaranteed to cause substantial collateral damage to the digital economy in the EU. Adopting a text based on the IMCO/LIBE language the European Parliament could offer a real alternative that is much more targeted in its application. Instead of burdening a wide range of online services with filtering requirements it would make additional measures for online platforms dependent on a case-by-case assessment of the nature of their activities.

Given that the discussion of the compromise texts proposed by MEP Voss in the JURI Committee seems to be stuck, reverting to the IMCO/LIBE language might offer a way out for MEPs. If, on the other hand, MEP Voss and his backers insist on the approach they have followed so far, the IMCO/LIBE language could be a basis for an alternative compromise backed by MEPs who refuse to give in to the demands of rightsholders and care for the rights of EU internet users and creators.

Let’s hope that MEPs realise that this alternative option exists before it is too late.

The post Here is an alternative version of Article 13 that the European Parliament should support appeared first on COMMUNIA Association.

In the updated policy paper we re-iterate our concerns (a few of them have recently been taken up by a group of Member States in a set of questions to the legal services of the Council), analyse proposals for amending the Commission’s proposal that have been adopted in the European Parliament, and provide a set of recommendations. Our key recommendation remains to delete article 13 from the proposal as it addresses a problem that lacks empirical evidence confirming its existence. Article 13, as drafted by the Commission, would limit the freedom of expression of online users and create legal uncertainty that has the potential to undermine the entire EU online economy. As such it is unworthy of being included in a Directive proposal that is intended to modernize the aging EU copyright framework.

Read the updated position paper below. If you are familiar with the issues at hand and/or the previous version you may want to jump straight to the updated part.

Position paper: EU copyright should protect users’ rights and prevent content filtering

Article 13 of the European Commission’s proposal for a Directive on Copyright in the Digital Single Market attempts to address the alleged disparity in revenues generated by rightsholders and platforms from online uses of protected content (the so called “value gap”). The proposed article attempts to do this by introducing an obligation for “Information society service providers that store and provide to the public access to large amounts of works” to filter user uploads. It would also require these providers to set up licensing agreements with rightsholders.

These proposed measures are highly problematic as they violate fundamental rights of users, contradict the rules established by the E-Commerce Directive, and go against CJEU case law. The measures proposed in the Commission’s proposal stem from an unbalanced vision of copyright as an issue between rightsholders and infringers. The proposal chooses to ignore limitations and exceptions to copyright, fundamental freedoms, and existing users’ practices. In addition, the proposal fails to establish clear rules with regard to how citizens can use protected works in transformative ways—such as remixes and other forms of so-called “user-generated content” (UGC). As a result, a system of this kind would greatly restrict the way Europeans create, share, and communicate online.

The legal uncertainty embedded in the proposal and the omission of protections for users’ rights turn this initiative into an ill-targeted intervention. Furthermore, the lack of proportionality and adequacy of measures proposed pose a dangerous precedent in the European law.

What is proposed in the Directive?

In Article 13 of the Proposal for a Directive on Copyright in the Digital Single Market, the European Commission proposes that information society service providers (ISSP) that store and give access to any copyrighted materials that their users upload must take specific measures to ensure that these materials do not contain other rightsholders’ works. In other words, the ISSPs will need to adopt technology that will effectively recognize and prevent uploads of any content that includes even fragments of videos, music, pictures, and any other type of creation that belongs to someone other than the person sharing it.

The proposal specifies that these content recognition filters will have to be appropriate and proportionate to existing technological advancements, and to the services upon which they will be implemented. The Commission requires transparency in informing rightsholders about the functioning of the filtering mechanism, as well as on the recognition and use of such works.

Finally, the ISSPs would have to provide users with the ability to file complaints, and to use a redress mechanism whenever there is a dispute over how these measures are applied. The ISSPs, however, are not obliged to fulfill any transparency requirements with regard to their users as to the technology used, or how they apply their filters.

The problems with the proposal

1. Effectiveness and proportionality of undertaken measures are highly questionable

The proposal is constructed as if the only way to prevent copyright infringement is to filter user-uploaded content. All content would be subject to the filtering. This would mean that a censorship machine is implemented just in case there is an infringement of copyright. As a result, users’ activity will be constrained before any infringement happens. This approach goes against both fundamental rights and the European law.

Another misconception embedded in the proposal is the approach to how these measures should be overseen. The ISSPs will need to provide “adequate” information on the functioning and deployment of the system to the rightsholders, and also report on recognition and use of protected content.

The proposed requirements for the filtering system do not include any obligation to inform users on how the system functions, or to make rights claims transparent to end users. This leaves users without information necessary to defend themselves in case their use fits one of the exceptions or limitations. It ignores the existing common practice of blocking and/or removing content based on terms of service—as opposed to a specific legal requirement—so the measure may only be partially effective.

2. The upload filters are user-rights blind

Not every unsanctioned use of someone else’s content is an infringement — copyrighted works are regularly used without permission in quotation, parody, for private use, or under another exception or limitation. The filter likely will not recognize these types of uses, and as a result the legal use of protected material will be constrained. This type of a system, combined with an ineffective redress mechanism, will create a chilling effect that will thwart users’ rights online.

From the perspective of European case law, upload filtering goes against existing CJEU rulings, in particular the Sabam v Netlog case. Hosting providers would likely be included in the wide range of online service providers affected by the proposal even though they are explicitly excluded from any broad obligations to filter content in the Sabam ruling. In that case, the CJEU made a point to note that filtering threatens freedom of expression. Filter systems fail to strike a fair balance between copyright and the freedom of providers to conduct business, not to mention the ability of users to secure their personal data.

Within the current technological environment, the content recognition system proposed by the Directive is equal to a “system for filtering information” considered by the CJEU. As such, the Commission’s proposal is in contradiction with the E-Commerce and EU case law.

3. The proposal contradicts the E-Commerce Directive

Recital 38 defines communication to the public as storing and providing access to the public to copyright-protected works or other subject matter uploaded by users. Meanwhile, the E-Commerce Directive notes that where ISSPs provide services that store information provided by a recipient of the service, “Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service”.

It is not clear whether the Commission’s proposal widens the definition of “communication to the public”. More importantly, the proposal introduces liability for hosting services that currently benefit from the safe harbor envisioned in the E-Commerce Directive. The proposal seems to be intended to redraw the boundaries of the safe harbour protections established by the E-Commerce Directive via another Directive and as such is detrimental to the EU rule of law.

4. The proposal fails to define what users can do with protected content

The Commission’s proposal clearly aims at platforms that host so called “user-generated content” (UGC). The emergence of the internet in general—and UGC platforms in particular—have resulted in an explosion of creativity that is fueled by creative expression through the re-use of existing materials.

The European copyright framework does not provide clear and harmonized rules that define how users can re-use protected works when creating remixes and other types of UGC. Introducing filtering requirements to deal with infringing uses on these platforms without first defining what constitutes legitimate uses is harmful to users, and ultimately limits the way internet users in Europe can express themselves online.

Development in the European Parliament

As expected Article 13 has been a focal point of the discussions in the European Parliament. A significant number of amendments have been tabled in all 5 committees that deal with the proposed directive. So far, no clear parliamentary position on the questions raised by Article 13 has emerged.

Before the European Parliament entered the 2017 summer break, IMCO, ITRE and CULT committees adopted positions that propose modifications of the text proposed by the Commission. In the process it has become clear that there is no parliamentary majority for an outright rejection of the flawed approach proposed by the Commission.

Of the three opinions adopted so far, the IMCO committee goes the furthest to address the concerns that we have identified above: it clarifies the relationship with the liability exceptions established by the E-Commerce Directive by restating them. It also removes all references to content recognition technologies (the upload filters) and strengthens safeguards for users.

Even though the IMCO opinion introduces a new mandatory exception for user generated content, it fails to clearly state that the rights the users have under exceptions and limitations must not be negatively affected by measures agreed to between rightsholders and online platforms.

While the IMCO opinion would defuse the biggest problems of the Commission’s proposal, it does so at the expense of proposing legal provisions that make very little sense and are open to all kinds of interpretations that may very well negatively affect user rights in the future.

The changes to the Commission’s plan proposed in the opinions adopted by the CULT and ITRE committees do not contain anything that would meaningfully address the concerns that we have outlined above. Instead they would make the Commission’s proposal even worse.

Recommendations

Article 13 (“Use of protected content by information society service providers storing and giving access to large amounts of works and other subject-matter uploaded by their users”) should be removed from the proposal.

If the EU legislator comes to the conclusion that the existing rules that apply to information society services and the hosting providers should be supplemented by additional legal provisions, there are four important safeguards that must to be taken into account when establishing additional requirements.

First, the EU legislator should safeguard the E-Commerce regime. New legal provisions should clearly separate the entities falling under its scope (and are protected by the E-Commerce Directive exemption) from the ones that fall outside its scope. Legal provisions must not introduce general content monitoring and should be in compliance with CJEU case law. Provisions that try to target infringement of copyright-protected content on hosting services should fulfill the above mentioned criteria and should not prevent users from exercising their rights under exceptions and limitations.

Second, the EU legislator should not mandate the use of specific forms of technology to ensure the functioning of licensing agreements. Legislation needs to be future proof and given the fast pace of technological developments, it should not mandate the use of specific technologies.

Third, the EU legislator should make sure additional requirements placed on online platforms  take users’ rights into account. Any measures employed to settle disputes over the use of copyrighted content by users must respect fundamental rights. Additionally, users should have access to transparent information about the functioning of measures and/or procedures as proposed by the EU legislator to target copyright infringement. This information must be verifiable by the affected users, and users need to have meaningful ways to contest decisions regarding or actions against their uploaded content. Members states should be obliged to ensure access to courts for users whose rights may have been infringed by the measures taken. Finally, users should be represented in any fora which attempts to define best practices for functioning of the agreements and proportionate application of any measures.

Fourth, the EU legislator needs to provide a clear positive definition of the rights available to use existing content. This can be achieved by introducing in the proposed Directive a new, mandatory exception to copyright that allows noncommercial transformative uses of copyrighted works by private individuals, and their dissemination via online platforms. Rightsholders must not be granted any authority to remove or block user uploads that fall within the scope of such an exception, or any other exception.

The post Updated position paper: Article 13 remains a terrible idea and needs to be deleted appeared first on COMMUNIA Association.

Giving preference to new licenses is always a bad idea

The IMCO amended article 4(2) in order to give precedence only to extended collective licensing (ECL) schemes. This shows appreciation of the weak position of educational institutions to negotiate individual licenses, and thus represents a progress in relation to the Commission’s proposal. However, it’s not enough to guarantee that the new exception will not simply be replaced by ECL schemes all over Europe. 

The ECL schemes have been in existence in the Nordic countries for a long time now, and there’s a general understanding that they have to be protected in those countries. We cannot overemphasize the fact that the term “limitation” in article 4(1) encompasses compulsory or statutory licenses. On the other hand, works of authors that opt out from voluntary licenses will fall under the exception anyway. In other words, maintaining article 4(2) is not that relevant.

What policy makers that want to protect the public interest related to education should worry about is that ECL may be exported to countries with no tradition whatsoever of implementing such schemes. These are also countries which currently do not foresee any compensation for most or all of the uses made under their educational exceptions. They might be forced to introduced compensation, based on the proposed law.

We recall that, according to a study commissioned by the EC in 2016, 31,3% of educators pointed out that “I or my school could not afford the price of the license”, when discussing copyright-related restrictions experienced by them. Paying a license to use copyrighted materials that could otherwise be used under an unremunerated exception is a concern for many schools and educators across Europe. The majority of Member States – 17 to be more precise – do not currently foresee remuneration for a significant part of the uses that are made under educational exceptions.

If article 4(2) has to be maintained, a much better approach is the one proposed by Ms. Comodini, which gives precedence over the exception only to existing contractual relations. This way, schools, educators and learners would not be left with no option but to pay a license, namely an ECL.

Opening up the scope of the exception, but not too much

The compromise amendment brings some changes to the list of entities and persons that can benefit from the proposed educational exception. Cultural heritage institutions (which the IMCO proposes to redefine to include galleries, educational establishments and public service broadcasters) are now listed as an example of a venue involved in teaching activities where educational uses under the exception can take place.

Departing from the premises of an educational establishment to such type of venues is a significant improvement in relation to the Commission’s proposal. Nevertheless, keeping the educational uses of copyright works confined to those places that are “involved in teaching activities” is not the best way of reflecting the reality of education nowadays. Can a venue that was rented just for the purposes of holding a conference or a seminar be considered “involved in teaching activities”?

Another problem is that the IMCO only leaves the door open to venues other than educational establishments and cultural heritage institutions with regards to face-to-face uses. Online uses are restricted to education provided by those entities. According to the compromise amendment, only educators and learners that are connected with an educational establishment or that are “registered members of the cultural heritage institution” (what does it mean to be a registered member of a museum, gallery, library?) can make educational uses of protected works through electronic networks. The Committee kept the concept of secure electronic networks that are accessible only by certain people (including now the members of the cultural heritage institutions). This excludes emails, cloud file sharing, and of course the open Internet, which is an important means of having access to education in the 21st century.

Bringing in non-digital uses and research purposes

The compromise amendment on education removes the artificial division introduced by the Commission between ‘digital’ and ‘non-digital’ uses. This division does not exist in the optional educational exception adopted in 2001. In the year of 2017, when educators and learners work constantly in both environments and can no longer perceive those divisions, basing law on such an artificial distinction seems completely unjustified.

Another good feature that the compromise amendment picked up from the MEP Stihler Draft Opinion was the inclusion of scientific research purposes within the scope of the exception. The EU tradition, reflected in the optional educational exception contained in the InfoSoc Directive, is to combine educational and research purposes in the same exception, as they are interconnected. The research community did not understand why the Commission left research aside from its proposal and the IMCO amendment rectifies that fault.

Finally, the Committee proposes to introduce two clauses that deserve our praise. One is a non contractual override provision, which adds an important layer of protection to the exception. The other is a clause to ensure that authors are able to provide royalty-free licenses (e.g. Creative Commons licenses), which is extremely important in countries that have compulsory licensing schemes.

The post IMCO compromise on education could have aimed higher appeared first on COMMUNIA Association.

The upload filter is gone, the e-commerce Directive is intact

In a surprising move, the Committee adopted the EPP proposal to include Article 13 as drafted by LIBE rapporteur Michal Boni into IMCO’s opinion. IMCO rapporteur Catherine Stihler supported these amendments over the compromise she had made with other Parliamentary groups: S&D, ECR, ALDE, GREENS and GUE. Since it was quite clear that the deletion suggested by some Committee Members is not an option for this article, it is seems like one of the best possible outcomes that MEP Boni’s proposal has been picked up by IMCO.

Rapporteur Boni’s take on how platforms should cooperate with rightholders offers a rational distinction between entities falling under the scope of Article 13 and those protected by the e-commerce directive exemptions. It also steers clear of content recognition and technological measures as the go-to solutions for shaping that cooperation regarding MEP Stihler’s compromise amendment.

Red line? What red line?

The big surprise of the IMCO vote is the U-turn it took on the issue of new rights for press publishers (a.k.a “the link tax”). Rapporteur Stihler proposal to delete all of Article 11 had gained some traction in the Committee, which resulted in about a dozen other IMCO Parliamentarians also tabling provisions to remove it. In the vote, however, the amendments to delete were almost entirely rejected. The Commission’s version of Article 11 has been adopted with some tweaks: hyperlinking would not fall under the new right, and the new law would not be applied retroactively.

Despite previously demonstrated support for deletion of Article 11, many of these MEPs did not show up at the Committee session to vote. Their presence could have shifted the outcome. Instead, the absurd idea of paying publishers for the possibility to generate traffic to their content has been validated in the IMCO opinion.

Better online access to cultural heritage and protection of the Public Domain

The outcome of the vote is much better for those parts of the proposal dealing with issues faced by cultural heritage institutions. The opinion proposes to expand the new exception dealing with reproductions carried out by heritage institutions as part of their “public interest mission in preservation, research, culture, education and teaching”. It also adds a provision that requires Member States to recognise that once a work is in the public domain, faithful reproductions—including digitisation—shall not give rise to new copyright or related rights.

The opinion also proposes improvements to the articles dealing with out-of-commerce works. In line with requests from cultural heritage institutions, Article 7 now includes a fall-back exception that can kick in when the original licensing mechanism proposed by the Commission does not provide a workable solution. This will enable access to out-of-commerce works in sectors and Member States that lack representative collective management organisations.

Something for the users…

Users got two more things out of the IMCO vote, the first being a  freedom of panorama exception. This had not been included in MEP Stihler’s draft opinion, it seems like a no-brainer to add it. Clearly fighting against such a commonsense provision wasn’t a battle that the backers of creative industry wanted to wage. It has passed without any limitation as to the type of use (commercial or non-commercial), and indeed is the best case scenario for this exception.

The other good outcome is an exception for User Generated Content, which was adopted along the lines proposed by CULT Rapporteur Marc Joulaud. Digital use of protected content would be possible for the purposes of pastiche, parody, criticism, or entertainment, and is not limited to non-commercial cases. It requires that content be legally available, and that the user provide an indication of the source. Should this exception find its way to the final version of the directive, it would be a really good outcome for the users.

… but not all that they could have

The general harmonisation of exceptions, something that seems like a necessity for the Digital Single Market to work, has not been adopted. A bizarre proposal by MEP Philippe Juvin was adopted that destroys any synergies that could make users’ life much easier. If his proposal is retained, it would mean that any content obtained due to one exception could not be used in the context of another exception:

For example, anything digitised under the right to reproduction could not be used under a TDM exception or used freely as part of  teaching activities. This a very substantial weakening of user rights and the principles of the EU copyright framework.

The educational exception, closely followed by COMMUNIA, has been made partially better, but a few problems persist. The scope of the exception includes both digital and non-digital educational activities performed by educational and also cultural heritage institutions. This is broader than the Commission’s proposal, but sadly does not cover nonprofits and other informal education settings. There are still limits with regard to the places and networks where educational uses can take place. Individual licenses will no longer take precedence over the exception, but extended collective licensing schemes will still be in play. Finally, a layer of protection has been added to exclude freely licensed material from the overall licensing schemes. This half-step forward is not adequate to support European education fit for the 21st century.

The whole is less than the sum of parts

Even though there are some considerable gains coming out of the IMCO vote, they mostly leave a bitter aftertaste. The “Boni’s 13” is more an exercise in the ability to reach political compromise than a serious attempt to fix the broken thinking that gave birth to the whole reform package. As much as it may pave the way for a civilised and efficient debate in the LIBE Committee, it is a depressing win.

The U-turn on the link tax could revive the ancillary copyright zombie. We felt it was slowly dying in the European Parliament, especially after its main proponent has left DG Connect. To be sure, the empty seats at the vote today did not help in keeping it out of the IMCO opinion.

Out of all the gains, those for cultural heritage institutions seem to be best defined. The changes to the copyright exceptions give these institutions instruments to take a greater advantage from the digital sphere. The changes in support of users are good, and will go a long way to making everyone feel reassured that engaging in commonplace creative activities online won’t turn them into copyright criminals. But should the compromise on Articles 11 and 13 be sustained across Committees, these rights will be exercised in an online environment continually governed by big global players. These stakeholders are leaving little room for content decentralisation and cultural diversity. So, after the IMCO vote, instead of opening the champagne, we’re breathing a sigh of relief.

The post Internal Market Committee took a vote on copyright. Why does it feel like a loss? appeared first on COMMUNIA Association.

Press publishers über alles

The first set of “compromise” amendments deals with article 11 and the associated recitals and represents an unprecedented land grab on behalf of press publishers. As part of this “compromise” proposal MEP Arimont wants to extend the term of protection for the new publishers right from 20 years (as proposed by the Commission) to 50 years. In addition he proposes to extend the right to include academic publications (which were explicitly excluded from the commission’s proposal) and also applies it to analogue uses.

This massive extension of the publisher’s rights will still be very unlikely to generate new income streams for publishers, not to mention delivering on  the promise to ensure journalists get an “appropriate share of the remuneration”. Instead, it will cause substantial collateral damage. Libraries and other cultural heritage institutions will suddenly see themselves confronted with a new class of rightsholders who can make claims for publications that have been published many decades ago. As a result libraries will likely need to take archival collections off line and spend additional resources on clearing rights.

The EPP proposals will also introduce massive uncertainties for anyone linking to press publications online. According to the proposed language any hyperlink that contains “the key information which was to be conveyed” would be infringing. The proposed standard is as ridiculous as it is impractical. Unfortunately this does not seem to register with the EPP MEPs responsible for these “compromises” who are clearly willing to throw everyone else under the bus in their attempts to grant press publishers new exclusive rights.

Death to open platforms

The second set of alternative compromise amendments deals with article 13 which has been proposed by the commission to deal with the so called “value gap”. We have previously highlighted the many concerns over user rights, censorship and privatized enforcement and it is shocking to see that MEP’s “compromise” proposes to make all of these issues far worse.

MEP Arimont opens a full frontal attack on all open online platforms that allow users to upload copyright protected content. According to proposed language any platform that allows user uploads and does anything more than simply displaying such content (such as “optimisation for the purpose of the presentation by the service” or “promotion of content by the service”) will be stripped of the liability exemption provided for in Article 14 of e-commerce directive. This means that all open platforms will be liable for any infringements by their users forcing them to obtain wide ranging licenses and implement filtering technologies.

With this proposal Arimont is doing the bidding of GESAC and other representatives of rightsholders. In an open letter published yesterday, GESAC explicitly asked policy makers to exclude all open platforms from the liability regime of the e-commerce directive:

“We […] call on you to clarify that UUC [user uploaded content] platforms like YouTube are involved in reproducing and making our works available under copyright laws  [and to] ensure that the safe harbour non-liability regime does not apply to as it is meant for technical intermediaries only.”

Sucking the life out of the online information ecosystem

It is important to realize that what MEP Arimont is proposing here will have effects far beyond the platforms that rightsholders want to target. Copyrighted content is uploaded to lots of different platforms ranging from open access repositories for academic publications, code repositories like github and many other online discussion platforms. Stripping all of these of the protections offered by the e-commerce directive and requiring them to employ upload filters will be a severe blow for lots of collaboration platforms that have no impact whatsoever on value creation in the music industry.

The common thread in both sets of “compromise” amendments is a complete disregard to the collateral damage caused by the proposed measures. It is understandable that rightsholders advocate for copyright rules that privilege their interests above the interests of other businesses in their value chains. Unfortunately the rights holders do this with an arrogant sense of entitlement that makes them completely blind to the damage they are causing to the wider information ecosystem. As such the proposed “compromises” are bad policy and must be rejected.

We all need to act, now

As MEP Reda points out in her analysis there are just 9 days left to ensure that these “compromises” will not be adopted by the European Parliament’s committee on the Internal market and Consumer Protection (IMCO). The best way to contribute to this objective is by contacting MEPs from your country who sits on the IMCO Committee and tell them you expect them to support MEP Stihler’s compromise amendments on the copyright file.

A phone call takes no more than a few minutes and can prove very effective. Our friends at Bits of Freedom have created a useful tool that allows you to call MEPs for free! The vote in IMCO will take on the 8th of june, so the time to act is now!

The post Worst version of the EU copyright reform proposal yet, thinly veiled as a “compromise” appeared first on COMMUNIA Association.

We are pleased that just as in the draft CULT opinion, IMCO acknowledges the importance of protecting and strengthening user rights. Rapporteur Stihler’s broad scope is especially important, as it would permit a person “to use an existing work or other subject matter in the creation of a new work or other subject-matter, and use new work or other subject matter”. In other words, it doesn’t matter what a user needs the protected content for, he or she may just use it as long as they create something new with it. For reference, CULT’s draft opinion proposed a UGC exception to apply primarily when it serves criticism, illustration, parody, etc.

IMCO’s draft opinion includes a condition that a user may take advantage of the UGC exception when “the use of the new work is done solely for non-commercial purposes”. Interestingly, while debating the issue, IMCO members could have looked at the CULT draft opinion, where the use must be “in accordance with fair practice and in a manner that does not extend beyond the specific purpose for which they are being used” to qualify for the exception.

The reason for considering the CULT approach is that their option could provide more legal clarity, as it’s often difficult to determine what “non-commercial” means. Would posting a meme on Facebook be considered non-commercial, even if the platform screens ads alongside UGC content? If there is a way to remove such obscurity from the practical uses of the exception, IMCO members should embrace that possibility.

In essence, draft IMCO opinion provides a great basis for introduction of the much needed UGC exception, especially if it can embrace a broad, flexible scope. It would be made even stronger if the IMCO shadow rapporteurs used the CULT approach to amend their text so that use under the exception was conditioned on fair practice.

There are other import user-rights issues that the original directive proposal ignored. The Commission decided not to introduce an exception for freedom of panorama in their proposal for a Directive on Copyright in the Digital Single Market. It is also not introduced as an amendment in the draft IMCO opinion (although it was suggested as an amendment in the CULT draft opinion, for at least non-commercial reproduction and use). We continue to ask the European Parliament to introduce a broad, EU-wide freedom of panorama right that applies to both commercial and non-commercial uses of all works permanently located in public spaces. The amendment text should communicate that any contractual provision contrary to the exercise of the rights provided for in the exception will be deemed unenforceable. Supporting a broad commercial right to reproduce and use works in public places would give users the legal clarity and assurance to share their works across borders, and generate economic activity, such as commercial publishing of photography.

It’s clear we’re not the only ones who find strange the addition a panorama exception in the draft CULT opinion, but not in the IMCO draft. With so many user-rights friendly changes offered by Rapporteur Stihler, it’s odd that we didn’t see a similar (or even stronger) amendment in support of freedom of panorama in her opinion. Apparently even Stihler thinks it could be introduced as an amendment, as she noted in a response to MEP Felix Reda on Twitter:

Let’s hope that freedom of panorama won’t be left out because everyone seems to think it is such an easy thing to introduce at any stage. The time to act is now.

The post MEP Stihler highlights user-generated content, but where’s freedom of panorama? appeared first on COMMUNIA Association.

For education, the Scottish MEP has aims that strongly resonate with us, as she noted in her introduction:

Also, in the field of the use of works and other subject matter in teaching activities (Article 4), the Rapporteur believes that the exception should benefit not only all formal educational establishments in primary, secondary, vocational and higher education, but also other organisations such as libraries and other cultural heritage institutions, providing non-formal or informal education. The Rapporteur believes that the best solution is to have a single and mandatory exception for all types of teaching, both digital and non-digital, formal and informal.

These are more-or-less the same points we make in our position paper on the draft directive. In it, we argue that ‘the devil is in the detail’. The analysis of MEP Stihler’s proposed amendments appears to require the same title. While we can do less than fully applaud her aims, there is some serious room for improvement in the actual proposed text. We appreciate amendments that strengthen the exception, but note at the same time that even the best exception will be broken if licensing solutions are favored by the legislator.

Education is not just ‘digital’ or ‘non-digital’

MEP Stihler elegantly re-phrases the title of article 4 in AM35 to ‘Use of works and other subject-matter in teaching activities’ from ‘…digital and cross-border teaching activities’. By doing so she removes the artificial barrier introduced by the Commission between ‘digital’ and ‘non-digital’ uses, which does not exist in the exception contained in the Information Society Directive for teaching and research. We applaud this. For legal clarity, and to reverse the chilling effect now present in educators using in-copyright material to illustrate their teaching, it is important to state what is and is not allowed. Having a barrier between ‘digital’ and ‘non-digital’ only makes sense from the perspective of the  (slow) historic progression of copyright law, not in the (rapidly changing) daily practice of educators.

Still licensing as the solution

Unfortunately MEP Stihler did not suggest to remove the much debated article 4(2) relating to the licensing override to the proposed exception. While she does introduce a welcome review mechanism to the availability of such licenses in three years after the date of entry of the Directive, we cannot emphasise enough that licenses are simply not the solution for education. Many educational institutions will be ill-placed to negotiate license terms or will be forced to accept the terms dictated by the licensor, while others will not even be able to consider purchasing a license, due to the costs involved.

Broadens the scope: but not far enough

We were happy to see that MEP Stihler broadens the scope of the exception to include cultural heritage institutions (CHI), as they take up an important role in education in Europe. However, we do not agree with only broadening the scope to CHI as she proposed in AM39. There are many other persons and institutions, such as NGO and programmes aimed at vocational training, that would very much benefit from being included in the exception, as the Rapporteur herself notes in her amendments for recital 15 and 16 of the proposed directive (AM 4 and 5). We argue that the best way forward in terms of scope of the exception is to put the education purpose forward, not the person or entity performing the education.

Great addition of ‘scientific research’

The Rapporteur also rectifies an oversight from the Commission by including the words ‘scientific research’ within the exception in AM36, as was the phrasing of the Information Society Directive exception. As our friends at LIBER have argued:

Since the activities of teaching and research intertwine inseparably at most universities and research organisations, the natural step is to propose a copyright exception for the purposes of teaching and research.

The much needed non-contractual override

Thankfully MEP Stihler also recognised the great value of the addition of a non contractual override provision in the education exception proposed, as she noted in AM38, in the same language used by the Commission in its proposal for the text and data mining exception in article 3 of the proposed directive. Rapporteur for CULT Marc Joulaud also already noted this in his draft opinion.

In short, while we applaud MEP Stihler’s aims for education and there are several positive proposals in her amendments. But we need to do better for education. For more information about what education needs, we refer to the joint letter on copyright reform for education, as well as the COMMUNIA position paper.

The post MEP Stihler means well for education, but there is serious room for improvement 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.

The post Rapporteur Stihler wants to protect users from content filtering appeared first on COMMUNIA Association.