… ensuring that the EU copyright regulatory framework stays fit for purpose in the digital environment to support creation and innovation, tap the full potential of the Single Market, foster growth and investment in our economy and promote cultural diversity.

With regards to the contents of the consultation, a first reading reveals a mixed bag of questions, with a surprising amount of them actually touching on issues that are closely related to our own policy recommendations. The consultation comes in the form of a 37 page document with a grand total of 80 questions that cover everything from the functioning of the single market for copyrighted works, linking and browsing, copyright term duration, registration of copyrighted works and exceptions and limitations for cultural heritage institutions, education, research, persons with disabilities and “user generated content”. In addition, there are questions about private copying and levies, the fair remuneration of authors and performers, respect for rights, and even the possibility of a single EU copyright title. Finally there is an open question for everything else that stakeholders might want to tell the Commission.

The deadline for providing answers to all of these questions is the 5th of February, which if one takes into account the upcoming holiday period is rather short.Below we highlight a number of questions from the consultation. In addition to this we will prepare a more thorough analysis and make our own response to the consultation public at a later date.

Rights and the functioning of the Single Market

The first set of questions deals with ‘Rights and the functioning of the Single Market’. According to the Commission…

…the main issue at stake here is, therefore, whether further measures (legislative or non-legislative, including market-led solutions) need to be taken at EU level in the medium term to increase the cross-border availability of content services in the Single Market, while ensuring an adequate level of protection for right holders.

The questions related to this section ask for examples of problems in this area and then invite stakeholders to provide their views on how these problems should be addressed (usually split between ‘legislative solutions’ and ‘other solutions’). This structure repeats itself throughout the consultation.

Specifically, the commission is interested in perspectives on the issue of territoriality of rights clearance (i.e., should the current situation where service providers need to obtain permission for all member states where they want to offer their service be changed, for example by introducing a country of origin rule where rights only need to be cleared for the member state where the service providers is based?).

In addition, this section also contains two questions on linking and browsing that show a worrisome lack of understanding how the internet works:

Should the provision of a hyperlink leading to a work or other subject matter protected under copyright, either in general or under specific circumstances, be subject to the authorisation of the rightholder?

Should the viewing of a web-page where this implies the temporary reproduction of a work or other subject matter protected under copyright on the screen and in the cache memory of the user’s computer, either in general or under specific circumstances, be subject to the authorisation of the rightholder?

While it should be obvious to anyone who has ever used the internet that requiring authorisation of the right-holders for any of these acts would fundamentally break the internet, it is important to realize that both questions are currently being debated in European courts. In this context it is important that these questions are answered with a resounding no, so that it leaves European policy makers no other option than to propose legislation that would clarify that both browsing and linking do not require permission from rightsholders (or anyone else).

The remainder of this section contains questions that explore the length of copyright protection (Are the current terms of copyright protection still appropriate in the digital environment?) and the registration of works (Would the creation of a registration system at EU level help in the identification and licensing of works and other subject matter?). Communia has longstanding policy recommendations on both of these issues, and we would hope that in answering the consultation others will look at these recommendations.

Recommendation #1: The term of copyright protection should be reduced. The excessive length of copyright protection combined with an absence of formalities is highly detrimental to the accessibility of our shared knowledge and culture. The term of copyright protection should be reduced.

Recommendation #8: In order to prevent unnecessary and unwanted protection of works of authorship, full copyright protection should only be granted to works that have been registered by their authors. Non registered works should only get moral rights protection.

Limitations and exceptions in the Single Market

The second part of the consultation focuses on ‘Limitations and exceptions in the Single Market’. Communia believes that adjusting the exceptions and limitations to copyright that are enshrined in the 2001 Copyright Directive to the requirements of the digital environment must be at the heart of any change of the European copyright rules. Again, we have a related policy recommendation that provides a good basis for addressing issues related to exceptions and limitations:

Recommendation #3: Harmonize Exceptions and Limitations of the Copyright Directive among the Member States and open up the exhaustive list so that the user prerogatives can be adapted to the ongoing technological transformations.

It is good to see that the consultation contains questions related to all aspects of this recommendation (harmonisation, need for new exceptions and limitations, and need for more flexibility).

The rest of the section on limitations and exceptions touches on specific types of uses/users benefiting from exceptions and limitations. In the first four cases (access to content in libraries and archives, teaching, research, and users with disabilities) the Commission wants to know if the relevant exceptions and limitations continue to achieve the objectives envisaged or whether they need to be updated to cover use in digital networks. The consultation also identifies 2 types of use (Text and data mining and so-called ‘User-generated content’) that might benefit from new exceptions.

Again some of the Communia policy recommendations are relevant here and can provide guidance when answering the questions related to education and memory institutions:

Recommendation #10: Memory Institutions must be enabled to fulfill their traditional function in the online environment. In order to be able to provide access to knowledge and culture they must benefit from compulsory and harmonized exceptions and limitations that allow them to make their collections available online for non commercial purposes.

Recommendation #12: Access to copyright protected works for education and research purposes must be facilitated by strengthening existing exceptions and limitations and broadening them to cover uses outside of formal educational institutions. All publicly funded research output and educational resources must be made available as open access materials.

Other Questions

Among the remaining questions, those in the sections on ‘A single EU Copyright Title’ and ‘Respect for Rights’ are the most noteworthy.

It is refreshing to see the Commission devote a section on the idea of a single European copyright title. The idea of having a unified EU Copyright Title that would totally harmonise the area of copyright law in the EU and replace national laws has been part of academic discussion about copyright in Europe for quite some time (see here for a recent proposal).

On the other hand, ‘Respect for Rights’ is a thinly veiled euphemism for enforcement of rights. Contrary to what the consultation suggests, respect is not created by enforcement but by establishing rules that are perceived as fair and balanced by as many stakeholders as possible. With this in mind the most effective way to improve ‘respect for rights’ would be to take user concerns seriously when addressing the other issues identified throughout the entire consultation.

Instead, the Commission has added a question that is explicitly aimed at inviting answers promoting stronger liability of intermediaries for copyright infringement by third parties:

In particular, is the current legal framework clear enough to allow for sufficient involvement of intermediaries (such as Internet service providers, advertising brokers, payment service providers, domain name registrars, etc.) in inhibiting online copyright infringements with a commercial purpose? If not, what measures would be useful to foster the cooperation of intermediaries?

This is the exact same proposal that was rejected by a broad coalition that brought down the SOPA/PIPA legislative proposals in the US earlier this year. It was also one of the most contentious issues in ACTA, which ultimately was rejected by the European Union. It is sad to see the Commission promoting this approach in the context of this otherwise reasonable consultation.

Next steps

It is somewhat unclear what will happen to the outcomes of the public consultation. Given that next year is an election year it is rather unrealistic that they will feed directly into a legislative proposal for a new or updated EU copyright directive. At best, we hope that the current Commission will provide the next one with a clear and precise roadmap for copyright reform – which we hope will be in line with our recommendations.

But regardless of the likelihood of immediate outcomes, it is important that stakeholders who are in favor of meaningful copyright reform make themselves heard by providing their perspectives. Communia will work with a broad coalition of other organisations on ensuring broad feedback from across all affected sectors. As part of this we expect to publish a more detailed answering guide at the beginning of next year.

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A letter of withdrawal has been sent to the Commissioners involved in Licenses for Europe explaining the reason that these stakeholders can no longer participate in the dialogue and the wish to instigate a broader dialogue around creating the conditions to realise the full potential of text and data mining for innovation in Europe:

We welcomed the orientation debate by the Commission in December 2012 and the subsequent commitment to adapt the copyright framework to the digital age. We believe that any meaningful engagement on the legal framework within which data driven innovation exists must, as a point of centrality, addressthe issue of limitations and exceptions. Having placed licensing as the central pillar of the discussion, the Licences for Europe Working Group has not made this focused evaluation possible.

Instead, the dialogue on limitations and exceptions is only taking place through the refracted lens of licensing. This incorrectly presupposes that additional relicensing of already licensed content(i.e. double licensing) – and by implication also licensing of the open internet – is the solution to the rapid adoption of TDM technology.

This approach also undermines the considerable work that has been done in Europe to increase the amount of Open Access content available and encourage its exploitation. We are concerned, therefore, that our participation in a discussion that focuses primarily on proprietary licenses could be used to imply that our sectors accept the notion of double licensing of as a solution. It is not. We firmly believe that the right to read is the rightto mine.

Furthermore, we would point to the urgent need to be competitive with the United States and the high‐tech economies in Japan and South Korea, where legal barriers to TDM are far lower precisely because of the existence of copyright limitations and exceptions there.

Background

Licences for Europe was announced in the Communication on Content in the Digital Single Market (18 December 2012) and is a joint initiative led by Commissioners Michel Barnier (Internal Market and Services), Neelie Kroes (Digital Agenda) and Androulla Vassiliou (Education, Culture, Multilingualism and Youth) to ‘deliver rapid progress in bringing content online through practical industry-led solutions’. Licences for Europe aims to engage stakeholders in four areas:

1. Cross-border access and the portability of services;
2. User-generated content and licensing;
3. Audiovisual sector and cultural heritage;
4. Text and Data Mining (TDM).

COMMUNIA participated in the first three sessions of the the working group on text and data mining. We and the other organisations who have decided to withdraw from the proces remain committed to working with the Commission on the removal of legal and other barriers to TDM. However, we believe that any meaningful engagement on the legal framework within which data-driven innovation exists must address the issue of limitations and exceptions and as a consequence a review of the 2001 EU copyright directive which is in urgent need of modernisation.

Our withdrawal follows much communication with the Commission on the issue, including a letter of concern sent on the 26th of February and signed by over 60 organisations including COMMUNIA. The Commission response to this letter is available on the LIBER website. More information about the issues surrounding text and data mining in the context of the Licenses for Europe stakeholder dialogue can be found in this background document.

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Unfortunately the first meeting of this working group which took place on the 4th of February in Brussels did not live up to the expectations raised by the Commission’s earlier announcement. It quickly became evident that the stakeholder dialogue is based on a flawed assumption (‘more licensing will bring copyright in line with the requirements of the digital economy’) and that the process was designed to prevent a serious discussion about how to unlock the potential of scientific text and data mining.

Given this the participating organisations representing academia, researcher community and civil society (including Communia), have decided to make these concerns public in the form of an open letter to the Commissioners Barnier, Geoghegan-Quinn, Kroes and Vassiliou (re-published at the end of this post). The letter which was published today raises a number of concerns that need to be addressed before the stakeholder dialogue on text and data mining can continue.

Chief among these concerns is the belief that in order to have an open discussion about the reform, possible solutions cannot be limited to licensing. From our perspective text and data mining cannot be solved by re-licensing texts to libraries, researchers or the public. What Europe needs is clarity that text and data mining works that are lawfully available does not require permission by rights holders. A stakeholder dialogue that simply declares this position off limits can hardly be called a dialogue at all. In the case of Public Domain content, there is a risk that a focus upon licensing will lead to unlawful re-licensing of content that is out of copyright.

In addition the whole process needs to become more transparent and needs to include all stakeholders (including academics and the Commissions own Research and Innovation Directorate General, which is currently being limited to attend as an observer).

The open letter has been published in the hope of getting the Commission to change the terms under which the stakeholder dialogue is being conducted. Should this not be the case, Communia and the other organisations that have signed the letter are very likely to step away from the dialogue. As the list of supporting signatories shows this is supported by a growing number of academics who are rightfully concerned about the prospects for conducting data driven research in Europe.

Dear Commissioners Barnier, Geoghegan-Quinn, Kroes and Vassiliou,

“Licences for Europe – A Stakeholder Dialogue” Working Group 4: Text and Data Mining

We write to express our serious and deep-felt concerns in regards to Working Group 4 on text and data mining (TDM). Despite the title, it appears the research and technology communities have been presented not with a stakeholder dialogue, but a process with an already predetermined outcome –namely that additional licensing is the only solution to the problems being faced by those wishing to undertake TDM of content to which they already have lawful access. Such an outcome places European researchers and technology companies at a serious disadvantage compared to those located in the United States and Asia.

The potential of TDM technology is enormous. If encouraged, we believe TDM will within a small number of years be an everyday tool used for the discovery of knowledge, and will create significant benefits for industry, citizens and governments.McKinsey Global Institute reported in 2011[1]that effective use of ‘big data’ in the US healthcare sector could be worth more than US$300 billion a year, two-thirds of which would be in the form of a reduction in national health care expenditure of about 8%. In Europe, the same report estimated that government expenditure could be reduced by €100 billion a year. TDM has already enabled new medical discoveries through linking existing drugs with new medical applications, and uncovering previously unsuspected linkages between proteins, genes, pathways and diseases[2]. A JISC study on TDM found it could reduce “human reading time”by 80%, and could increase efficiencies in managing both small and big data by 50%[3]. However at present, European researchers and technology companies are mining the web at legal and financial risk, unlike their competitors based in the US, Japan, Israel, Taiwan and South Korea who enjoy a legal limitation and exception for such activities.

Given the life-changing potential of this technology, it is very important that the EU institutions, member state governments, researchers, citizens, publishers and the technology sector are able to discuss freely how Europe can derive the best and most extensive results from TDM technologies. We believe that all parties must agree on a shared priority, with no other preconditions – namely howto create a research environment in Europe with as few barriers as possible, in order to maximise the ability of European research to improve wealth creation and quality of life. Regrettably, the meeting on TDM on 4th February 2013 had not been designed with such a priority in mind. Instead it was made clear that additional relicensing was the only solution under consideration,with all other options deemed to be out of scope.We are of the opinion that this will only raise barriers to the adoption of this technology and make computer-based research in many instances impossible.

We believe that without assurance from the Commission that the following points will be reflected in the proceedings of Working Group 4, there is a strong likelihood that representatives of the European research and technology sectors will not be able to participate in any future meetings:

All evidence, opinions and solutions to facilitate the widest adoption of TDM are given equal weighting, and no solution is ruled to be out of scope from the outset;
All the proceedings and discussions are documented and are made publicly available;
DG Research and Innovation becomes an equal partner in Working Group 4, alongside DGs Connect, Education and Culture, and MARKT – reflecting the importance of the needs of research and the strong overlap with Horizon 2020.

The annex to this letter sets out five important areas (international competitiveness, the value of research to the EU economy, conflict with Horizon 2020, the open web, and the extension of copyright law to cover data and facts) which were raised at the meeting but were effectively dismissed as out of scope. We believe these issues are central to any evidence-based policy formation in this area and must, as outlined above be discussed and documented.
We would be grateful for your response to the issues raised in this letter at the earliest opportunity and have asked susan.reilly@kb.nl(Ligue des Bibliothèques Européennes de Recherche) to act as a coordinator on behalf of the signatories outlined below.

Yours sincerely,

Participants:

Sara Kelly, Executive Director, The Coalition for a Digital Economy
Jonathan Gray, Director of Policy and Ideas, The Open Knowledge Foundation
John McNaught, National Centre for Text Mining, University of Manchester
Aleks Tarkowski, Communia
Klaus-Peter Böttger, President, European Bureau of Library Information and Documentation Associations (EBLIDA)
Paul Ayris, President, The Association of European Research Libraries (LIBER)
Brian Hole, CEO, Ubiquity Press Ltd.
David Hammerstein, Trans-Atlantic Consumer Dialogue

The arguments set out in this letter are also supported by the following individuals and organisations:

Prof Dr Kurt Deketelaere, Secretary General, League of European Research Universities (LERU)
Dr Karl Dittrich, Chair, Association of Universities in the Netherlands (VSNU)
Nicola Dandrige, CEO, Universities UK (UUK)
Prof Kirsten Drotner, Chair, Scientific Committee for the Humanities, Science Europe
Prof Richard Frackowiak, Head Department of Clinical Neurosciences University of Lausanne / Chair, Medicine Sub-Committee of Science Europe
Prof Dr Thomas Risse, Chair of the Academic Committee on Social Sciences, Science Europe
Dirk Inzé, Chair of the Scientific Committee for Life, Environmental and Geo Sciences, Science Europe
Dr. Ir. Véronique Halloin, Secretary General, Fonds de la RechercheScientifique (FNRS)
Prof Emilio Lora-Tamayo, President, National Spanish Research Council (CSIC)
Professor Rick Rylance, Chair, Research Councils UK (RCUK)
Lisbeth Söderqvist, Associated Professor, Swedish Research Council
Dr Rolf Zettl, Managing Director, Helmholtz Association of German Research Centres
Dr Wim Liebrand, Director, SURF
Prof Martyn Harrow, CEO, Joint Information Systems Committee (JISC)
Prof József Pálinkás, President of the Hungarian Academy of Sciences
AndrasKornai, Computer and Automation Research Institute, Hungarian Academy of Sciences
Professor Sally Wyatt, eHumanities Group, Royal Netherlands Academy of Arts & Sciences
Dr Wilhelm Krull, Secretary General, Volkswagen Foundation
Prof Dr Jos Engelen, President of The Netherlands Organisation for Scientific Research (NWO)
Dr Petr Škyřík, National Cluster of Information Education, Czech Republic (NAKLIV)
Sir John Sulston, Institute for Science, Ethics and Innovation (iSEI)
Dr Simon Chaplin, Wellcome Trust
Dr Tim Hubbard, Wellcome Trust Sanger Institute
Dr Rolf Apweiler, Associate Director, European Bioinformatics Institute (EMBL-EBI)
Alicia López Medina ,Confederation of Open Access Repositories
Alma Swan, Director of Advocacy Programmes, SPARC Europe
Dr Victor Henning, Co-founder & CEO, Mendeley
Dr Harald Müller, Library Director, Max Planck Institute for Comparative Public Law and International Law
Associate Professor Dr. Lucie Guibault, Institute for Information Law (IViR), University of Amsterdam
Prof Dr Mireille van Eechoud, Institute for Information Law (IViR), University of Amsterdam
Dr Stef van Gompel, Institute for Information Law (IViR), University of Amsterdam
Prof Charlotte Waelde, Chair in Intellectual Property Law, University of Exeter
Prof Lilian Edwards, E-Governance,University of Strathclyde
Prof Dr Rainer Kuhlen, Chair, European Network for Copyright in support of Education and Science
Teresa Hackett, Electronic Information for Libraries
David C Prosser PhD, Executive Director, Research Libraries UK
John Dolan, Chair of Council, Chartered Institute of Library & Information Professionals
Tim Padfield, Chair, Libraries and Archives Copyright Alliance
KimmoTuominen, President, Finnish Research Library Association
Kristiina Kontiainen, Finnish Library Association
Ap de Vries, CEO, Netherlands Public Library Association
Bas Savenije, President, FOBID Netherlands Library Forum
Andrew Green, CEO, LlyfrgellGenedlaetholCymru / National Library of Wales
Joy Palmer, Library and Archival Services, Mimas, University of Manchester
Ann Rossiter, Executive Director, Society of College, National and University Libraries
Michel G Wesseling, President, NVB: The Dutch Association of Information Professionals
Natalia Manola, University of Athens, Greece on behalf of OpenAIRE
Dr. Evi Sachini, Head, Strategic Planning & Development Department, National Documnetation Centre Greece (EKT)
Kevin Ashley, Director, Digital Curation Centre (DCC)

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