But here we are now years later in the thick of the trilogue negotiations, and the EU legislator is finally trying to figure out what to do about Article 11. Similar to Article 13 and content filter, we expect that the final compromise text of the directive will include some version of the press publishers right.

The waivable press publishers right

Our long-held view remains: Article 11 should be removed from the copyright directive. The provision is patently harmful to journalism, access to information, and the digital single market. The option to make the press publishers right waivable is simply one way to slightly improve the press publishers right if deletion is impossible. If the negotiators can’t be convinced by the mountains of research, empirical evidence observed in prior trials, and near universal public opposition to this unnecessary right, then the legislator must do everything it can to mitigate the negative effects that would be faced by news publishers and news seekers in the EU.

One of the worst aspects of Article 11 is that it applies whether publishers want it or not. As written by Creative Commons recently, the press publishers right “would undermine the intention of authors who wish to share without additional strings attached, such as creators who want to share works under open licenses […] forcing publishers who use CC to accept additional unwaivable rights to receive payment violates the letter and spirit of Creative Commons licensing and denies publishers the freedom to conduct business and share content as they wish.”

The new press publishers right and commons

CC wrote that if including some version of Article 11 is unavoidable, it should include protections for works under open licenses, or in the public domain. For instance, the Council text included a provision that said, “When a work or other subject-matter is incorporated in a press publication on the basis of a non-exclusive licence, the rights […] may not be invoked to prohibit the use by other authorised users [or] works or other subject-matter whose protection has expired.”

The concerns of publishers

Small and medium-sized publisher are worried about the effects the unwaivable press publishers right will have on their operations too. In October the European Innovative Media Publishers sent a letter to the trilogue negotiators outlining how they will be harmed if Article 11 is adopted. They’ve also launched a petition that calls for the deletion of Article 11, or at least the introduction of mechanisms that would “reduce some of the collateral damage to small and medium-sized publishers.” The signatories believe that having their press publications incorporated into news aggregators and other online search tools obviously helps drive traffic to their content, without the need for requiring other payments from aggregators or news agencies. From their petition:

The introduction of a neighbouring right in Germany and Spain make it harder for us to grow online, reach new audiences and develop new markets. They create new barriers for entry for publishers to develop online. In Spain, we are even deprived of control over our own content, and obliged to charge via a collecting society, whether we like it or not. […]

We adamantly believe that any publisher’s right must give publishers the choice to consent to the sharing of their content online. Aggregators, search engines and other online services drive valuable traffic to publishers’ websites, particularly smaller or local ones; and this traffic referral creates huge opportunities to generate revenue through advertising.

Thus, one way to reduce the collateral damage of Article 11 is to make the press publishers right waivable. Even Google, which has basically threatened to shutter Google News throughout Europe if Article 11 passes, is now advocating for the ability of publishers to waive the press publishers right should it make its way into the compromise version of the directive. Google says, “the copyright directive should give all publishers the right to control their own business models and destiny by giving them the choice to waive the need for a commercial license for their content.”

The post A Waivable Press Publishers Right Would Be Less of a Disaster appeared first on COMMUNIA Association.

But we shouldn’t have been surprised when MEP Axel Voss came out with an even worse plan for the press publishers right. This week MEP Voss released his proposal for a compromise on Article 11, and the changes he is proposing are even more radical and more broken than anything we’ve seen thus far.

Expanding the scope to cover facts

First, Voss proposes to expand the scope of beneficiaries of Article 11 from to cover not only press publishers, but also news agencies (who aggressively lobbied for being included in the scope of Article 11 late last year). But in doing so, he introduces the risk of inappropriately granting copyright – like protection to facts and compilations of basic information. This is a dangerous extension of the scope of exclusive rights that would endanger the right of access to information. It is especially appalling since even the founders of the “modern” European copyright system wisely choose to make sure that news of the day and facts cannot be exclusively claimed: The 1986 Berne convention explicitly states that copyright shall “not apply to news of the day or to miscellaneous facts having the character of mere items of press information”.

Mandatory remuneration

Perhaps the most extreme change is that press publishers and news agencies would be granted (or saddled with?) an “inalienable right to obtain an fair and proportionate remuneration for such uses.” What does this mean? It means that publishers would be required to demand payment from news aggregators and other users.

There are several problems with this approach. First, it’ll just prompt aggregators to only include content from publishers with whom it’s financially viable to work with. Small publishers or journalism startups would not be worth it for the aggregators to worry about, so they just wouldn’t enter into agreements with them at all. This doesn’t bode well for improving access to information, for ensuring diversity of the press, or in the prospect of boosting young businesses via online channels.

Second, the inalienable right directly conflicts with publishers who wish to share freely and openly use Creative Commons licenses. An unwaivable right to compensation would interfere with the operation of open licensing by reserving a special and separate economic right above and beyond the intention of some publishers. For example, the Spanish news site eldiario.es releases all of their content online for free under the Creative Commons Attribution-ShareAlike license. By doing so, they are granting to the public a worldwide, royalty-free license to use the work under certain terms. Forcing publishers who use CC to accept additional inalienable rights to be remunerated violates the letter and spirit of Creative Commons licensing and severely limits them in their freedom to do business.

Links aren’t taxed…unless they are

Voss’ text includes a provision that the press publishers right “shall not extend to acts of hyperlinking which do not constitute acts of communication to the public,” and includes in the recitals an extended note of the recent CJEU judgments on the issue. But there’s a big disconnect in simply adding the text above, and understanding the situation on the ground. As MEP Felix Reda explains,

“Links today almost always automatically include short parts of the article, such as the headline (either because it is part of the web address itself, or because the link is shown with an automatically-generated preview). Because the proposed right would protect even headlines, these links would necessarily be communicating protected content to the public. Therefore, the exception will not apply to them.”

This is not a workable compromise, delete Article 11

It is no real surprise that MEP Voss pays no attention to the one reasonable idea of how to fix the mess of Article 11. By now it is clear that MEP Voss has his very own definition of the term “compromise”. With regards to Article 11 this is especially unfortunate since this is one of the few contentious issues where a real compromise between the proponents and opponents of the new right has been identified: The approach presented earlier by MEP Voss’ predecessor MEP Comodini (and also contemplated in the Estonian presidency) that would rely on a presumption that publishers are the rights holders, thus making it easier for these entities “to conclude licences and to seek application of the measures, procedures and remedies.”

In the absence of such a compromise Article 11 should be deleted. It will restrict access to information, doesn’t contribute to supporting quality journalism, and will do nothing to grow the digital single market. Many (likely most) publishers and news producers don’t want it. And research commissioned by the European Parliament itself says it won’t work. Voss’ “compromise” is a perverse, empty bargain.

The post MEP Voss doubles down on worst elements of Article 11 appeared first on COMMUNIA Association.

We are especially interested in the assessment of Article 11—the provision that would create new rights in press publications that would allow to press publishers to control digital uses of even the smallest snippets of their content. COMMUNIA has long advocated that the press publishers right should be removed from the proposed directive. Not only is the mechanism ill-suited to address the challenges in supporting quality journalism, it would have the effect of decreasing competition and innovation in the delivery of news, limit access to information, and create widespread negative repercussions for related stakeholders.

The European Commission, which came up with this idea, has offered no data about how a new right would increase revenues to sustain a free and pluralist press.

On the other hand previous Academic research as well as statements from the media companies themselves confirm that Article 11 won’t accomplish  its aims, and is a danger to access to news online. The independent analysis commissioned by JURI conforms this once again, which should finally put the nail in the coffin on the press publishers’ right. The report concludes:

There are real concerns surrounding the rather uncertain effects of the right, and many of the problems facing press publishers can be resolved by a much less controversial intervention. We therefore approve the proposal made in the draft JURI Opinion, namely that the press publishers’ right be abandoned and replaced with a presumption that press publishers are entitled to copyright/use rights in the contents of their publications. (p. 8)

The authors of the research take a look at instances where a press publishers’ right has already been implemented, such as Germany and Spain. They conduct interviews with stakeholders on the ground to analyse the implications and effects of the ancillary rights there.

Their research confirms that even if a press publishers right were able to generate revenue to support quality journalism (which there is no evidence to support), it would create other negative consequences to access to information and competition in the digital single market. It would add another right into the already complex thicket of IP rights regime in Europe, including the problematic sui generis database rights. These additional transaction costs borne by users and potential market entrants will inhibit the delivery of quality news, and inhibit innovation and investment in new technologies and services.

But essentially there is an easier and more effective way to promote the aims of quality journalism and the ability of press publishers to sustain their efforts without a new right. The report suggests that there should be a presumption that press publishers retain ownership of the content they share. This framing, which draws from Directive 2004/48/EC on the enforcement of intellectual property rights, already provides a robust legal framework for the protection of content without the negative aspects of introducing a new right.

The report also addresses the widely-criticised expansion of  the press publishers’ right to include academic publications that was adopted by the European parliament’s   by ITRE committee The analysis echoes our concerns that  that such a move “could have serious negative implications for open access policies.” (p. 38)

As we and many others have pointed out, providing protection to academic publications (specifically excluded in the Commission’s original proposal) would mean that users of scientific and scholarly journal articles could be forced to ask permission or pay fees to the publisher for including short snippets of a research paper in another publication. This type of arrangement is completely antithetical to longstanding norms in scientific research and scholarly communications. And any such new right to control and monetise use of snippets of academic articles would significantly limit the sharing of open access publications and data which currently are freely available for use and reuse in further scientific advances.

A final note on transparency. In her post on the report, MEP Felix Reda points out that there’s some confusion as to when (or if) this research will be presented to the Legal Affairs MEPs. She notes that the authors have been invited to share their research with the committee in session on the afternoon 21st November. he problem is that the whole exercise would be moot if JURI has already voted on their amendments to the Commission’s proposal (currently scheduled for the morning of 21st November). The Parliament should ensure that this research can be presented to the JURI members well in advance of the vote. What we don’t need is more research pushed down the memory hole.

The post European Parliament Research Confirms The Obvious: Press Publishers’ Right A Terrible Idea Good For No One appeared first on COMMUNIA Association.

The introduction of a new right for press publishers (aka the “link tax”) to extract fees from search engines for incorporating short snippets of – or even linking to – their content in article 11 is one of the most controversial issues of the proposed directive. Adopting this type of ancillary right at the EU level would have a strong negative impact on all stakeholders, including publishers, authors, journalists, researchers, online service providers, and readers.

We know that previous experiments with ancillary copyright in Spain and Germany have failed, a fact that was already known to the Commission because it is acknowledged in its impact assessment leading up to the release of the original proposal. We’ve argued that a new right for press publishers would undermine the intention of authors who wish to share without additional strings attached, especially creators that use Creative Commons licenses to share their works. We urged that the provision be removed from the directive.

In recent months there seemed to be an increasing focus on neutralizing this contentious provision. MEPs such as IMCO Rapporteur Catherine Stihler and former Legal Affairs Committee Rapporteur Therese Comodini had gathered support for deleting the press publishers right. Despite of this, last month the new right was retained in the opinion of the IMCO Committee. The opinion removes the clause of the Commission’s proposal which would retroactively apply the publishers right to anything published in the last twenty years.

Making a bad proposal even worse

In the votes last week in the CULT and ITRE committees, the press publishers right was also carried through – and even expanded. Both of the recent opinions remove the restriction that the right applies to digital uses only, meaning that if adopted it would cover all uses – both digital and in print. Even worse, ITRE – the committee responsible for policy relating to the promotion of research – voted to extend the press publishers right to cover scientific publications. Both additions contravene the Commission’s original reasoning for why the proposal aligns with the principle of proportionality. In the directive, the Commission states, “The proposal is proportionate as it only covers press publications and digital uses.” But with the proposed changes to the press publishers right, both the CULT and ITRE opinions expand the right from “digital uses” to all uses, and the ITRE opinion expands “press publications” to include academic publications. It’s unclear how these changes can be reconciled with both the letter and spirit of the proportionality rule.

Academic publishing: the original value gap

As we, and dozens of others, have pointed out before providing protection to academic publications (specifically excluded in the Commission’s original proposal) would mean that users of scientific and scholarly journal articles could be forced to ask permission or pay fees to the publisher for including short snippets of a research paper in another publication. This type of arrangement is completely antithetical to longstanding norms in scientific research and scholarly communications. And it could affect how academic publications are discovered online within search engines like Google Scholar, or other types of aggregators related to scholarly outputs.

The inclusion of academic publishers in the scope of the press publishers right is not coincidence but the result of effective lobbying from academic publishers. On the day the Commission released its Directive on Copyright in the Digital Single Market, the International Association of STM Publishers released a statement urging for the extension of the new publishers right to scientific publications. Given the fact that academic publishing is already one of the most profitable businesses even though it is almost completely based on public inputs the fact that the European Parliament seems to be willing to grant these publishers even more rights seems outright scandalous.

It is not too late to stop the publishers right

It seems that by introduction an ill-considered right for press publishers as part of the directive that (at least in title) has the objective of modernizing the EU copyright framework to create a digital single market, the Commission has unleashed a force that will be very difficult to control. What is on the table by now is not proportionate to the original problem (press publishers facing difficulties in developing digital business models). A press publishers right on steroids that includes academic publishers will undermine open access publishing which has been a core element of public policies to keep higher education and research open and affordable. It is now up to the members of the JURI Committee, and member states (who have invested heavily in open access policies and ultimately pay the bills for access to academic publications) to call a halt to the publishers right.

The post EU research committee wants to gift publishers new rights to restrict access to scientific research appeared first on COMMUNIA Association.

Expand the scope of the text and data mining exception

We have argued many times that Text and Data mining should not be covered by copyright at all. A TDM exception such as the one proposed by the Commission would then be unnecessary. Any TDM exceptions enacted in spite of this would need to be as broad as possible both in terms of beneficiaries and in terms of purpose. Unfortunately the compromise amendment on the issue does nothing to broaden the scope of the proposed exception and merely reaffirms the Commission’s backwards looking proposal. MEPs should reject the compromise amendment and vote for AMs 337, 356, 360, 362 and 364 Instead.

Broaden the education exception to fit the needs of education in the 21st century

On the proposed education exception the Culture and Education committee seems intent to abandon the needs of 21st century educators. Instead of improving the Commission’s half-baked proposal, the compromise amendment reaffirms or worsens the most problematic elements of the proposal:

They keep the artificial barrier between offline and online education, maintain the damaging ‘licensing override’ and further limit the list of potential beneficiaries by requiring that they are ‘certified’. Adding insult to injury the compromise would also make compensation for the use of materials under this exception mandatory, against common practice in more than half of the EU Member States. MEPs should therefore reject the compromise amendment for article 4 and vote for the broadening of the scope of the exception, as proposed in AMs 137, 139, 140, 144, 148, 157, 370, 371, 377 and 381. They should also vote in favour of the deletion of art 4(2), as proposed in AM 392. Finally, they should vote in favour of adding a non-contractual overrides provision, as proposed in AMs 391, 392 and 411.

Allow cultural heritage institutions to share their collections online

Access to cultural heritage online is the second issue where the CULT committee fails its task completely. Instead of working with cultural heritage institutions to turn the Commission’s proposal into something that can actually work in practice, the compromise language that is being put up to vote tomorrow only contains cosmetic changes that fail to address even the biggest flaws of the Commission’s proposal. MEPs should reject the compromise amendments for article 7, 8 and 9 and follow the lead of the IMCO committee that voted for substantial improvements of the proposal (AMs 195, 198, 200, 202, 204, 209, 436, 437, 438, 452, 458, 461, 463, 468, 469, 471, 474, 476 and 478 are in line with the opinion adopted in IMCO).

No new rights for press publishers

With evidence piling up that new rights for press publishers are counterproductive, will hurt small publishers, and that the problems faced by publishers can be addressed by less invasive measures, the only sensible answer to the Commission’s proposal is to reject it in its entirety. Unfortunately the “compromise” amendment on article 11 that is being put to vote tomorrow introduces nothing more than a few  superficial changes to the Commission’s proposal. MEPs should therefore reject the compromise amendments and vote for deletion of article 11 as proposed by MEPs from across the political spectrum in AMs 484-489.

Oppose upload filters for online platforms

As we have highlighted here before, the members of the CULT committee voted against mandatory filtering in their recent report on the Audiovisual Media Services Directive. In this light the fact that the compromise amendment for article 13 not only keeps the proposed mandatory upload filters intact, but even manages to make them worse is difficult to explain. The upload filter and the rest of the measures introduced in article 13 will severely limit the ability of European citizens to express themselves online and should be rejected. The members of the CULT committee should stay consistent with their previous position and reject the compromise amendment on article 13. Instead they should vote for deletion of article 13 as proposed in AMs 507, 508 and 255.

The post Five easy ways for CULT MEPs to help fix EU copyright appeared first on COMMUNIA Association.

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

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

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

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

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

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

Infighting between publishers

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

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

Left pocket, right pocket

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

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

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

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

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.

The Rapporteur believes that the introduction of a press publishers right under Article 11 lacks sufficient justification. It is true that publishers may face challenges when enforcing licensed copyrights, but this issue should be addressed via an enforcement regulation. Simple changes made to Article 5 of the Enforcement Directive 2004/48/EC, making it also applicable to press publishers, will provide the necessary and appropriate means to solve this matter. The Rapporteur believes that there is no need to create a new right as publishers have the full right to opt-out of the ecosystem any time using simple technical means [emphasis added].

While recognizing the problems of the press publishers in digital era, we believe that all

of them can be addressed by establishing a rule  that press publishers are entitled to enforce the copyrights over the works  that are licensed to them. One way to do this would be by extending Art. 5 of the Enforcement Directive (2004/48/EC) to also apply to press publishers with regard to their licensed works or other subject matter. The other would be for publishers to review their business models and adjust them better to the digital reality.

Rapporteur Catherine Stihler is not the only one who claims that the best scenario for article 11 is to delete it. The same idea was raised by various groups such as  European Research Centres and European Copyright Society. Various MEPs also oppose the idea, e.g. Vicky Ford (ECR), Felix Reda (Greens/EFA), Marietje Schaake (ALDE), and Josef Weidenholzer (S&D).

The Rapporteur in her draft opinion also underlines the negative impact that the new right will have on the market. She claims it will add another layer of complexity to licensing deals. She also underlines that the increase of publishers’ remuneration does not guarantee the increase of in authors’ remuneration. There are other ways of promoting high quality journalism and publishing, and the Rapporteur proposes tax incentives. We would be curious to see some more details on that idea.

The post MEP Stihler proposes the only solution for proposed press publishers right: delete appeared first on COMMUNIA Association.

While copyright reform generally has a positive connotation, it is important to realise that a reform does not mean that things will change for the better. As we have pointed out before, the copyright reform package presented by the Commission is extremely one-sided. And both the attempt to introduce a new right for press publishers, and the requirements for online platforms to filter user uploads, have the potential to cause a lot of damage to the public domain and the ability of users to access information and express themselves online.

Shrinking the public domain

When it comes to the public domain the proposal to introduce a new right for press publishers contained in article 11 of the Commission’s proposal is the most dangerous, as it has the potential to shrink the public domain. Our 2010 Public Domain Manifesto defines the public domain as being

… comprised of our shared knowledge, culture and resources that can be used without copyright restrictions by virtue of current law.

This definition implies that the scope of the public domain can change in response to changes of the legal environment. The most obvious would be changes to the duration of copyright protection. Lengthening the term of protection would shrink the public domain while shortening the term would grow the public domain (as we argue for in our policy recommendation #1).

A little bit less obvious is the fact that creating new exclusive rights also impacts the public domain. A new publishers’ right would mean that materials which are currently part of the public domain could suddenly become protected. As proposed by the Commission, the new right would apply to any press publication. If such a press publication contains public domain materials, these materials would suddenly be protected under the new right.

The fact that the new right could be used to lift materials out of the public domain (if the new right would apply retroactively) has been noticed by others as well. In its opinion on the copyright reform proposal the Centre d’Études Internationales de la Propriété Intellectuel (CEIPI) argues that

The Directive Proposal does not limit the subject matter to publications presently protected by authors’ rights. It goes far beyond, restricting, for example, uses of works in the public domain. Lifting materials out of the public domain has unwanted consequences, impinging greatly on freedom of expression and democratization, while favouring centralization of information.

An attack on open content

Similar effects can be expected for openly licensed press publications, a term which according to recital 33 of the Commission’s proposal includes news websites. Blogs and websites that contain materials published under Creative Commons licenses would suddenly be protected by a new layer of rights that could be used by their publishers to restrict how these materials can be used. This concern is also highlighted in the Centre for Intellectual Property and Information Law (CIPIL) submission to the UK Intellectual Property Office which has been signed by 37 law professors and scholars:

In addition, the Proposal will create costs associated with huge uncertainties, particularly in respect of the field of application, that the right creates. These costs will need to be incurred by the very many operators who have no interest in the right, but fall within the broad definition of press publication […], who will need henceforth to amend even open-access licences and Creative Commons licences to permit reuses.

A solution that preserves the public domain

All of this illustrates that introducing new rights is a terrible idea. Even more, since there is no demonstrated need for such a right. As we have argued in our position paper on the publisher’s right, there are much more suitable interventions to address what is essentially an enforcement problem faced by press publishers. This assessment is shared in the above mentioned CIPIL submission which notes that:

However, if the real problems facing press publishers relate to licensing and enforcement, the best answer is surely to focus on licensing and enforcement rather than to create new rights. More specifically, the goal of simplifying enforcement might be achieved by a much simpler and proportionate strategy: the amendment of Article 5 of the EC Enforcement Directive, to create a presumption that a press publisher is entitled to bring proceedings to enforce the copyright in any article or other item appearing in a journal of which it is the identified publisher. This would be a presumption that a defendant could rebut by showing that the material used was in the public domain or licensed by the author. The Commission nowhere considers this option.

The fact that the Commission has not even considered such a much less invasive option should be a huge red flag for the European Parliament. From the very beginning the press publishers’ right has been a political project driven by former Digital Economy and Society Commissioner Oettinger. Unfortunately there are no signs that his departure from that post has lead to a re-assessment by the Commission. Instead, it appears that the Commission is digging in to defend the proposal, even though it has yet to make the case why this destructive intervention is needed at all.

The post The proposed publishers right is an attack on the public domain appeared first on COMMUNIA Association.

This will be welcome news to rightsholders who have been aggressively pushing for such a limitation to the freedom to link in the past as evidenced by amendments to the Reda report. While the EU parliament ultimately rejected these attempts the Court of Justice has partially granted them through the back door via yesterday’s decision.

As Felix Reda has already pointed out the decision is especially worrying in the context that publishers have also aggressively lobbying for the introduction of additional rights. We have repeatedly pointed out that this must be seen as another effort to gain more control over what users can or cannot do online by attacking the freedom to link.

It shows a remarkable amount of hypocrisy that the European Publisher Council refuses allegations that a new publishers right would affect linking…

“Nothing we are asking for would affect the way that our readers access publishers’ content, or share links on social media or via apps and email to friends and family”

…while one of their members has just gotten the highest court of the EU to declare that linking can in fact be illegal. Two weeks before the Commission is expected to propose an ancillary copyright for publishers, yesterday’s CJEU ruling provides us with another piece of evidence that such a right will be used by publishers as another piece in their strategy to limit who information can be accessed and shared online.

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