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C4C’s Comments to Canada’s Copyright Term Extension Consultation

The Canadian Government is consultingextended deadline: 31 March 2021, 11:59 pm local time – on implementing its commitment under the Canada-US-Mexico Agreement (CUSMA) to extend its general copyright protection term  from 50 to 70 years after the life of the author by the end of 2022.

Professor Michael Geist (Ottawa University) highlighted “the timidity of the recommendations”, a view C4C shares. He notably pointed out the Government’s reluctance to follow recommendations by the Canadian Industry Committee to mandate registration for the additional 20 years protection.

Copyright for Creativity (C4C) responded to the consultation to make it clear that the best way forward is no term extension, but if the government goes ahead, at the very least, damage control measures are required. See also Creative Commons’ submission focussing on how extending copyright’s term harms the public domain.

Our recommendations

At a principle level, we believe  there should be no extension of the term of protection of copyright beyond 50 years for two main reasons:

  1. The lack of sound legal and economic arguments for a term extension.
Did you know that: The economist Rufus Pollock demonstrated in a 2009 paper titled ‘Forever Minus a Day? Calculating Optimal Copyright Term,’ that the optimal copyright term is actually only 15 years.
  1. The current protection terms are already too long.
Did you know that: Lengthy protection terms lead to outcomes such as the so called ‘20th century black hole’ when it comes to online availability of copyrighted works. This black hole notably means that there are significantly fewer works from the mid to late 20th century available on europeana.eu than works from the centuries before (many of which are clearly in the public domain) or from the 21st century (many of which are still available commercially and whose rightholders can generally be contacted quite easily).

However, it is our understanding that due to ill thought commitments in a trade agreement, the Canadian government may not be in a situation where it can avoid such an extension.  Whilst we regret the fact that such a commitment was made, C4C considers the Canadian government must now focus on mitigating the negative effects stemming from it.

  1. At a minimum, such an extension should not be retro-active.
Our view: Refraining from retro-actively extending protection terms also ensures that the current status-quo of the public domain is safeguarded, whilst recognising its function as a stimulus for creativity. From a user/creator perspective, public domain works are a key foundation on which both old and new forms of expression (such as remix) can flourish thanks to the lack of copyright restrictions. The longer the copyright term, the less public domain works are available for distribution, use and re-use.
  1. An active act of registration by a rightholder to benefit from such an extension after 50 years (or for that matter even earlier) should be required.
Our view: We agree with the 2019 recommendation issued during the copyright review process led by the Canadian Industry Committee that states: “The Committee believes that requiring rights-holders to register their copyright to enjoy its benefits after a period equal to the life of the author plus 50 years would mitigate some of the disadvantages of term extension, promote copyright registration, and thus increase the overall transparency of the copyright system.”
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CJEU Does Not Follow Advocate General on Linking: Latest Copyright Ruling Preserves “Traditional” Linking but Opens the Door to Technical Protection Measures

Brussels, BELGIUM – Today, 9 March 2021, the Court of Justice of the European Union (CJEU) issued after almost two years its long awaited ruling in the VG Bild-Kunst case (C-392/19). The judgement is obviously limited to the case at hand and constrained by the questions put forward in the request for a preliminary ruling by the German Federal Court of Justice (Bundesgerichtshof – BGH).

The following statement can be attributed to Ms Caroline De Cock, Copyright for Creativity (C4C) coordinator:

“The CJEU’s reasoning builds on previous cases such as Svensson (C-466/12) and GS Media (C-160/15), that all recognize the importance of allowing mainstream linking to continue on the Internet. The impact of this decision does not affect plain vanilla linking and embedding done by millions of users every day, without any copyright related implications.

“The Court does not close the door to hotlinking infringing copyright, but only if rightholders use specific ‘technical protection measures.’ It seems to reject the AG’s dangerous interpretations that (i) copyright owners cannot be asked to ‘opt-out’ but must ‘opt-in’ to allow this type of links (ii) ‘non-clickable’ links are always an infringement.”

As is often the case, the CJEU has responded to a specific set of questions related to a very narrow situation of hotlinking and circumvention of protection measures against framing, confirming that a licensee needed to do more to protect images that were licensed to it when putting them online. The dispute concerned the need for technical protection measures to be implemented by a licensee of VG Bild-Kunst, who considered the licence requirement imposed by the latter to be unreasonable. In the case at hand, VG Bild-Kunst had asked its licensee to ensure that the images could only be viewed on the original website, a condition which the licensee failed to meet.

The CJEU ruled that “where the copyright holder has adopted or imposed measures to restrict framing, the embedding of a work in a website page of a 3rd party, by means of that technique, constitutes making available that work to a new public, which must therefore be authorised,” hence following the reasoning set out in Advocate General Szpunar’s opinion

As regards linking, the case related to a very specific and narrow type of linking, namely “hotlinking” or “inline linking,” whereby a webpage contains graphics or audio-visual elements as embedded files that display automatically but without the user of a page seeing the original link or webpage at the source. This practice is extremely rare online and is fundamentally different from more mainstream linking such as embedding or framing of for example an Instagram post or a Scribd document on a webpage, where the link to the original website is apparent to the user and can be reached by clicking on it.

C4C is a broad-based coalition that seeks an informed debate on how copyright can more effectively promote innovation, access, and creativity. We bring together libraries, scientific and research institutions, digital rights groups, technology businesses, and educational and cultural heritage institutions that share a common view on copyright.

For press inquiries on this please contact Ms De Cock at secretariat@copyright4creativity.eu or +32 474 84 05 15.

[Note: We are still analysing and reserve the right to update based on full ruling.]

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C4C Welcomes the SHARE Foundation

C4C is proud to announce that the SHARE Foundation signed on to our Declaration which promotes a copyright framework that fosters creativity, innovation, education, competitiveness and access to culture.

The SHARE Foundation is a non-profit organization representing online media, citizen journalists and bloggers, human rights defenders, members of the internet community and all other netizens engaged in battles to keep the Web open, decentralised and free. It was established in 2012 to advance human rights and freedoms online and promote positive values of an open and decentralised Web, as well as free access to information, knowledge, and technology. The SHARE Foundation’s primary areas of activities are freedom of speech online, data privacy, digital security, and open access to knowledge and information.

Danilo Krivokapic, Director of the SHARE Foundation, explains why they are joining C4C at this crucial moment in the copyright reform: “Upload filters would seriously hamper our right to freely receive and impart information on the internet and would effectively make private online platforms the arbiters of speech”.

C4C welcomes the SHARE Foundation and looks forward to a strong collaboration at the European and national level. For more information, please do not hesitate to contact Caroline De Cock, Coordinator of the Copyright for Creativity Coalition, at +32 (474) 840515, or Bojan Perkov, Policy Researcher at the SHARE Foundation.

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C4C Welcomes SPARC Europe

C4C is proud to announce that SPARC Europe, the Scholarly Publishing and Academic Resources Coalition, signed on to our Declaration which promotes a copyright framework that fosters creativity, innovation, education, competitiveness and access to culture.

SPARC Europe, founded in 2004, is a non-profit, member organisation comprised among others of a diverse body of academic institutions, library consortia, funding bodies, research institutes and some publishers, who are all committed to delivering on the promise of Open Access and Open Science. In recent years, SPARC Europe has also widened its focus to encompass Open Data and Open Education Resources. In their view, more openness in research will lead to an accelerated rate of discovery in academia and in the private sector, and of learning at every strata of education.

C4C welcomes SPARC Europe and looks forward to a strong collaboration at the European and national level. For more information, please do not hesitate to contact Caroline De Cock, Coordinator of the Copyright for Creativity Coalition, at +32 (474) 840515, or Vanessa Proudman, SPARC Europe’s Director, or Angela Walseng, SPARC Europe’s Communication Adviser.

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IMCO Vote on Copyright in the DSM: crying tears of…?

Today, 8 June, the Internal Market and Consumer Protection (IMCO) Committee voted on Copyright in the Digital Single Market [2016/0280(COD)]. IMCO was the 1st Committee to vote on the file, and is setting the direction for the other votes in the next weeks in the Culture and Education (CULT – 21 June), Civil Liberties, Justice and Home Affairs (LIBE – 29 June) and Industry, Research and Energy (ITRE – 11 July) Committees. The vote in the lead Legal Affairs (JURI) Committee will only take place after the summer break, and is currently scheduled for 28 September.

The IMCO Committee adopted its Opinion with 19 votes for, 7 against and 6 abstentions. It seems that the Members of the GUE/NGL and EFDD Groups failed to show up for the vote, whilst half of the ECR Group MEPs were also missing, as many of them are probably caught up in the UK elections vote taking place today. This resulted in a lot of the progressive and good amendments being rejected with tight votes. Luckily, the extremely harmful ‘alternative’ EPP Group compromise amendments that MEP Pascal Arimont (Belgium) tried to force down everyone’s throat did not make it in the end, as some common sense did creep into the debate.

So what’s the outcome?

The press publisher’s right (Article 11) is lava

The current trend on the Internet is a revival of the kid’s game ‘The floor is lava’, whereby if someone shouts that sentence at you, you have 5 seconds to get your feet off the ground in order not to get burnt. The result on Article 11 feels like a lot of MEPs  thought today was a good day to introduce the game in European Parliament votes as the end result of all the pulling and shoving between the Rapporteur’s proposal to delete Article 11, supported by every political group except the EPP Group, and the alternatives put forward by EPP Shadow Rapporteur MEP Arimont to put Article 11 on steroids resulted in … no amendments getting voted through, which means that the IMCO Committee decided to stick to the European Commission’s initial text, which is flawed as explained in our infographic.

However, some amendments were adopted to the Recitals linked to this provision, with mitigated results.

On the positive side:

  1. One of the major flaws of this provision was corrected, as the IMCO Committee decided to delete the retroactive application of this new neighbouring right as they adopted the Compromise Amendment on Article 18.
  2. EPP MEPs Eva Maydell (Bulgaria) and Antanas Guoga (Lithuania) their proposal to protect referencing systems, such as hyperlinks, from the scope of Article 11 were adopted.

The bad news: The IMCO Committee adopted recitals which heavily criticise digital platforms, such as news aggregators and search engines’ impact on press publishers, instead of recognising their added value to a pluralistic media sector. An amendment suggesting the extension of this right to ‘print’ publications also slipped through the cracks, as well as the addition of a reference to the obscure Rental and Lending Directive.

Text and Data Mining (Article 3): one step forward, two steps backwards

On the text and data mining (TDM) provision, a minimal extension to the scope of beneficiaries was agreed, but this small step forward is overshadowed by restricting the content that can be mined to only legally acquired content, which raises the question of freely accessible content. But then again, IMCO did not put much focus on this area so the job of fixing this very unambitious provision will need to be done in the other Committees.

The censorship filter (Article 13): putting checks and balances to the benefit of consumers…and the Internet

On the filtering of user uploaded content (a.k.a. the ‘censorship filter‘) the different political groups reached a sensible compromise by putting to vote the proposals for Article 13 and its Recitals that were proposed  by rapporteur Michal Boni in the Committee on Civil Liberties, Justice and Home Affairs (LIBE). MEP Boni’s proposal whilst not perfect, clearly tries to ensure that the provisions of Article 13 do not disrupt the existing legal framework and established CJEU case law, whilst taking a technologically neutral approach and making sure users are not forgotten in this equation (see our full analysis here).

The adoption of these amendments give a clear signal from the IMCO Committee, which is an associated Committee on Article 13, to the lead Legal Affairs (JURI) Committee on which direction to take and also provides clarity on the EPP Group’s position.

Other good news: user-generated content and freedom of panorama exceptions

Remembering that it says ‘consumers’ in its denomination, the IMCO Committee managed to agree to include an exception for user generated content (UGC) in its Opinion, as well as a fully fledged freedom of panorama exception!

Conclusion

Rapporteur MEP Catherine Stihler (S&D, UK) must be commended for the excellent job she did under difficult circumstances (including having male colleagues shout at her at the end of a vote, which is not exactly a display of good manners in our book), as well as MEP Boni for delivering a sound compromise position on the censorship filter. But a lot of work still needs to be done and every MEP in this dossier will need to take her/his responsibility and vote for the outcome to truly reflect all views. Not showing up is simply not an option when more than half of the good amendments get rejected due to tied votes!

[Ed. Note: This blog post first appeared on CopyBuzz.com]


What others are saying

 

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LIBE Opinion on Copyright in the Digital Single Market: Trying to put boundaries on the Censorship Filter

Following the CULT and IMCO Opinions (see our blog posts respectively here and here) and the Report by the lead Committee of the EP on this matter, namely the Legal Affairs (JURI) Committee (see our blog post here), the last Opinion of the EP has now been published, namely the one by rapporteur Michal Boni of the Committee on Civil Liberties, Justice and Home Affairs (LIBE).

As often happens when a report is published last, it builds on all the views that are out there and, in the case of MEP Boni, tries to offer a pragmatic middle ground. In this case, the LIBE Rapporteur has limited himself to examining Article 13, aka the Censorship filter, as he considers this is a provision that needs to be looked at in light of its impact on the fundamental rights of users.

A lot of positive thoughts…though deletion would have been the best option

 

The Opinion clearly tries to ensure that the provisions of Article 13 do not disrupt the existing legal framework and established CJEU case law, whilst taking a technologically neutral approach and making sure users are not forgotten in this equation:

  • The reference to specific technologies such as’content recognition technologies’ is removed (AM9).
  • The upholding of the principles of the E-commerce Directive (and especially of Art 15 ECD which prohibits general monitoring obligations) and the need for measures adopted by companies to respect the fundamental rights of users is clearly set out (AM3 & 9). 
  • The need for Member States to ensure users have access to a court or another competent authority (AM12), combined with the responsibility of rightholders in case of counter claims is also explicitly stated (AM4). After all, if they are the one claiming rights over content, they are the only ones capable of responding to such a counter claim, not the guy in the middle.
  • The involvement of user representatives in the definition of best practices to implement this provision is also welcome, as it counter balances the industrial interests of the rightholders and online platforms (AM13).

Room for improvement…especially considering deletion would have been the best option

 

But as always in the legal drafting arena, the devil is in the detail:

  • The scope of application of the censorship filter, whilst more limited than in many other proposals, still comprises an incoherency in its drafting:
    • Indeed, Article 13 is now set to apply to the situation ‘Where information society service providers offer users content storage services and provide the public with access to content’. There is however no link established between the storage of content and the content to which access is provided.
    • This is however easily remedied by adding one small word, namely: ‘Where information society service providers offer users content storage services and provide the public with access to such content
  • Whilst reminders of the respect of fundamental rights of users never hurt, it must be noted however that the Charter of Fundamental Rights imposes obligations on Member States, not on private entities such as online platforms. As these voluntary agreements fall in the private space, the ‘respecting fundamental rights’ element could prove to be wishful thinking or a carrot with no stick.

Conclusion: Hell is paved with Good intentions

 

Whilst it is clear that MEP Boni has, in the same vein as his colleague MEP Comodini Cachia, tried to bring back some common sense in this debate, it is a bit disappointing that the one Committee of the EP tasked with protecting the fundamental rights of users has not taken the only stance that makes sense from a principles point of view, which is to request the deletion of this ill-thought provision.

In our May 2017 open letter [PDF] to the Council and the European Parliament, C4C and 63 signatories reiterated this fact: ‘Article 13 should be removed from the copyright negotiations and dealt with in appropriate contexts. We strenuously oppose such ill thought through experimentation with intermediary liability, which will hinder innovation and competition and will reduce the opportunities available to all European businesses and citizens.’

But at least the intentions of MEP Boni are laudable, as are his efforts to remove the most toxic aspects of what the European Commission had put on the table. So for that, our thanks!


What others are saying

COMMUNIA – Last EP Committee opinion on copyright reform balances civil liberties with political reality

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Open Letter on the EU copyright reform

Open Letter on the EU copyright reform

Over 60 civil society & trade associations urge European lawmakers to put the EU copyright reform back on track

On 29 May 2017, over 60 civil society and trade associations – representing publishers, journalists, libraries, scientific and research institutions, consumers, digital rights groups, start-ups, technology businesses, educational institutions and creator representatives – sent this open letter [PDF] to the Ministers attending the Competitiveness Council and European Parliament Rapporteur MEP Therese Comodini Cachia and her colleagues, asking them to put the EU copyright reform back on track.

The letter points out that the draft proposal issued by the European Commission not only lacks ambition, but also comprises various provisions that represent major pitfalls.

The signatories ask ‘European lawmakers to oppose the most damaging aspects of the proposal, but also to embrace a more ambitious agenda for positive reform’, highlighting three key messages:

  • Article 13 (‘censorship filter’): Do not impose private censorship on EU citizens by filtering user uploaded content. Article 13 should be removed from the copyright negotiations and dealt with in appropriate contexts.
  • Article 11 (press publishers’ right): Do not create new copyrights. Remove any creation of additional rights such as the press publishers’ right in Article 11.
  • Articles 3-9: Put Europe on the map by enabling innovation, research and education. European lawmakers can do so by taking positive steps in revisiting Articles 3 to 9 which cover areas such as innovation, research and education, to ensure that these provisions are applied broadly and uniformly across the EU, without being overridden by contractual terms or technological protection measures, and that the proposed text and data mining exception benefits all persons with legal access to content.

The letter concludes by calling upon the European lawmakers “to deliver a reform that is fit for purpose in the digital environment and that upholds and strengthens fundamental principles such as the rights of citizens to freedom of communication and access to knowledge”.

Press inquiries:

Ms Caroline De Cock, Coordinator Copyright for Creativity (C4C), +32 (0)474 84 05 15

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#FixCopyright: The Myth of the Value Gap Simply Explained

Copy explains the so-called ‘value gap’. The issue at stake is the liability of online platforms for content uploaded by their users that could infringe copyright, packaged under the label ‘sharing of value’. Under the disguise of a copyright review, the European Commission sneaked in a proposal imposing obligations for online platforms to filter user upload content to fix this ‘value gap’. Can you imagine getting strip searched on the Internet? The filtered content could be anything: GitHub code, Wikipedia contributions, documents shared on Dropbox, etc.. You name it, the EC wants industry to filter it. In practice this would require that online platforms extensively monitor anything being uploaded and delete it if it could generate a legal risk. This threatens human rights protected by European and international law, and would result in a huge ‘chilling effect’ on freedom of expression, massive private censorship, and undermine innovation and competition. 

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JURI Report on Copyright in the Digital Single Market: Bringing back the user and common sense in the debate…up to a point

As mentioned in our previous blog posts on the CULT and IMCO Opinions (see respectively here and here), the adoption of the Directive on Copyright in the Digital Single Market (the copyright review) requires several European Parliament (EP) Committees to draft Opinions that will then need to be ‘taken into account’ in the Report by the lead Committee of the EP on this matter, namely the Legal Affairs (JURI) Committee.

  The draft Report [PDF] on the copyright review from the JURI Committee was published last Friday. The Rapporteur of the draft Report is MEP Therese Comodini Cachia (EPP, Malta) and C4C is starting to wonder if copyright requires women to look at it for common sense to creep back into the debate (for full disclosure purposes, this post is written by a woman so some bias could be at play).

Transparency & Balanced Outreach: Setting a New Standard

From a procedural point of view, it is worth nothing that MEP Comodini Cachia has certainly gone beyond the call of duty when it comes to consulting stakeholders and sharing the lobbying footprint she was exposed to: 104 meetings over only a few months. One wonders if anyone actually got any sleep at her office, but the effort certainly deserves recognition in terms of thoroughness of outreach.

Content Filtering (Article 13): The Bomb is Still Ticking on Users’ Fundamental Freedoms Whilst A Broader Array of Information Society Service Providers get Dragged In

The Ecommerce Directive is explicitly mentioned at two levels: first, for the fact that this proposal ‘complements’ it (AM2- Recital 4), and second, by being added to the list of Directives that are left intact and are in no way affected by this proposal (AM28). This sadly does not set an order of precedence and could merely imply that this legislation, as a lex specialis on copyright, will supersede the principles of the Ecommerce Directive.

 

Whilst AM1 (Recital 3) talks about the concept of storing (an activity that only applies to a set of information society service (ISS) providers and to a specific set of activities), other parts of the proposed text use broader terminology, hence raising a serious risk that the proposed language drags into the realm of filtering many more activities than even the original European Commission proposal intended to, such as e-commerce websites and platforms, caching services and content delivery networks, Wikipedia, social networks, code repositories such as Github, cloud computing services including software as a service and infrastructure as a service, apps, private lockers, online advertising, entertainment services including online music, video, book services and online news, web hosting providers and domain name registrars, online portals, ISPs, online payment platforms, public , etc.

AM21 & AM23 talk about ISS providers that are ‘actively and directly involved in the making available of user uploaded content to the public (…) where that activity is not of a mere technical, automatic and passive nature (…) unless they are eligible for the liability regimes provided in Article 14”. The criteria applying to the activity seem to quote CJEU case C-236/08 which interprets the E-commerce Directive but omits a key additional element put forward by the Court, namely the fact that an intermediary has knowledge of an infringement or not (‘ Accordingly, in order to establish whether the liability of a referencing service provider may be limited under Article 14 of Directive 2000/31, it is necessary to examine whether the role played by that service provider is neutral, in the sense that its conduct is merely technical, automatic and passive, pointing to a lack of knowledge or control of the data which it stores‘).

Moreover, the definition to be caught under Article 13 and the cumulative nature of the criteria to meet to be excluded raises quite a few questions: could this apply to more than hosters, e.g. also ISPs? And if so, why is only Article 14 of the Ecommerce Directive referred to? Would livestream be caught under this definition (making available could mean no…but…), or embedding? It also seems to create a form of ‘contributory liability’ for anyone ‘involved’ on the Internet.

 Some parts of the draft Report can however be unambiguously welcomed:

  • AM22 deleting Recital 38 paragraph 2.

  • AM24, AM57 & AM59 clearly puts the responsibility with rightholders in terms of indicating what works are protected according to them, and to deal with users’ counter claims in case of dispute.

  • AM59 acknowledges that exceptions to copyright should be protected from filters, whilst AM60 guarantees that ‘Member States shall ensure that national law provides users with access to a court or relevant authority for the assertation of the right of use under an exception or limitation’.

Press Publishers Right (aka Ancillary Copyright – Article 11):  Calling the Publishers’ Bluff

MEP Comodini Cachia has refocused the debate around one of the key claims iterated by the publishers, namely their difficulties in enforcing their rights when news articles are copied by third parties, such as news ‘scrapers’. To respond to that claim, the draft Report puts in place a presumption to the benefit of publishers of press publications, that entitles them ‘to defend in their own name the rights of authors and seek remedies in respect of works published in their press publication’ (AM18 & 52).

In doing so, she acknowledges a claim that seemed founded, and ignores the absurdity of the neighbouring right in itself, which has been proven to be a bad solution for a real problem, namely the struggles faced by newspapers in the digital age. This struggle has been highlighted earlier this year by the European Copyright Society (ECS), composed out 21 academic members, in their Opinion [PDF] on the European Commission’s copyright reform proposals, where they noted that: ‘As indicated by its precedents in Germany and Spain, such a rule is also unlikely to achieve its intended purpose., i.e. actually to support the ailing newspaper industry’, concluding that ‘In sum, we believe the proposed measure will not in any way benefit the newspaper industry and will detract from other potentially more effective ways of promoting high-quality newspaper journalism and newspaper publishing, such as tax privileges’.

A good analysis of how bad this neighbouring right is has recently been drawn up by Alexander Peukert, Professor of Civil, Commercial and Intellectual Property Law at the Goethe University Frankfurt am Main, Faculty of Law and Cluster of Excellence “The Formation of Normative Orders”. In his study [PDF] on an EU related right for press publishers, Professor Peukert analysed three possible versions of an EU related right for press publications, and came to the conclusion that “all these versions are either incompatible with fundamental rights or, alternatively, ineffective for failing to cover the current, news-related practice of online service providers and Internet users”.

 

Text and Data Mining (Article 3): Progress but Loopholes Remain

MEP Comodini Cachia removes the artificial limitations to the scope of the text and data mining (TDM) exception proposed by the European Commission, by making it applicable to ‘persons’ in general that have ‘legal access’ (AM32).

AM5 (Recital 8) actually gives a very didactic explanation of why a discussion on TDM (mining facts) is even taking place in the context of copyright, namely due to the fact that an act of ‘copying’ happens at a given stage to enable the mining.

AM6 (Recital 9) also highlights one of the issues at stake, namely the fact that researchers want to be able to use their own algorithms and their own tools on their computers if they so choose to, and not be forced to use only the tools made available by publishers on their servers (not that the latter cannot be one of the options offered, as long as there is no discrimination between the various options). AM8 (Recital 10) acknowledges that research organisations in public-private partnerships should benefit from the exception, whilst giving a compensation right to the rightholders ‘related to the cost of the normalisation process’. Such compensation claims seem framed by the need to be ‘proportionate to the cost of the normalisation’ in a scenario where research organisations do not have lawful access to information, but not when they do (see AM9 – Recital 13).

For those  who wonder what the whole ‘normalisation’ jargon is about, the picture below (extracted from a presentation by Peter Murray-Rust) can be helpful for the non-TDM-Geeks:

The Article 3 (3) security loophole is however not fixed by ensuring that the publishers do not put in place security measures that are disproportionate or discriminatory. It is to be noted that this element did get the attention of MEP Zdzislaw Krasnodebski (ECR, Poland) in his recently published (extremely brief) draft Opinion on copyright in the Digital Single Market from the Industry, Research and Energy (ITRE) Committee, albeit in the form of a change to a Recital.

Common sense approach to Education, Research and Cultural Heritage matters

MEP Comodini Cachia’s draft Report looks at education establishments and ‘teaching activities’ in a more ‘close-to-reality’ manner than the EC proposal (AM11, 12 & 30) and acknowledges that licensing is not always a satisfactory solution (AM14 – Recital 25a(new)).

She also broadens the scope of what ‘cultural heritage institutions’ can be (AM29), rendering it consistent with other legislation.

Fair Remuneration & Transparency

The bestseller clause proposed by the European Commission has already been highlighted as quite unsatisfactory for creators. MEP Comodini Cachia makes it slightly more realistic for that clause to be used by allowing not only individual creators but also their representative organisation to go bang on the table (AM64 & 65).

Some of the other language introduced (AM62) is more reminiscent of Directive 2011/77/EU of 27 September 2011 that amended Directive 2006/116/EC on the term of protection of copyright and certain related rights as it relates to the rights of performers and phonogram producers. In that context too, a differentiation is established between the forms of remuneration received, namely ‘(9) Upon entering into a contractual relationship with a phonogram producer, performers normally have to transfer or assign to the phonogram producer their exclusive rights of reproduction, distribution, rental and making available of fixations of their performances. In exchange, some performers are paid an advance on royalties and enjoy payments only once the phonogram producer has recouped the initial advance and made any contractually defined deductions. Other performers transfer or assign their exclusive rights in return for a one-off payment (non-recurring remuneration). This is particularly the case for performers who play in the background and do not appear in the credits (non-featured performers) but sometimes also for performers who appear in the credits (featured performers).’ This distinction between authors and performers who get a one-off payment (non-recurring remuneration) and those who are in a contractual relationship where there are ongoing payment obligations unnecessarily excludes the first category of ever getting information on the exploitation of their works and performances.

AM63 stating that ‘Member States shall ensure that authors and performers are entitled to equitable remuneration for the exploitation of their works’ does however beg the question: from whom?.

Lack of ambition in going further than the tepid EC proposal

Is it the fact that the EP is following such a demanding schedule that has led to the lack of ambition in the draft Report by MEP Comodini Cachia? It is indeed surprising that after the proposals to include a User Generated Content exception in this review by both MEP Joulaud in the CULT Opinion and MEP Stihler in the IMCO Opinion, and the inclusion of a Freedom of Panorama exception by MEP Joulaud (albeit an unsatisfactory one), that neither elements made it into MEP Comodini Cachia’s draft Report. We certainly hope that they will be put in the mix moving forward.

Conclusion

While we are certainly not throwing a party yet, the trend of bringing common sense to the copyright debate initiated in parts by her colleagues from the other involved Committees has been consolidated in this draft Report. By combining the various good suggestions that are on the table, an end-result that brings back users and creators in the debate could certainly be achieved, without detriment to the fundamental objectives of what copyright should stand for, quite the contrary.

Further Reading

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IMCO Opinion on Copyright in the Digital Single Market: Things are looking better, but the devil is still in the details

As mentioned in our previous blog post on the CULT Opinion, the adoption of the Directive on Copyright in the Digital Single Market (the copyright review) requires several European Parliament (EP) Committees to draft Opinions that will then need to be ‘taken into account’ in the Report by the lead Committee of the EP on this matter, namely the Legal Affairs (JURI) Committee.

The draft Opinion [PDF] on the copyright review from the Internal Market and Consumer Protection (IMCO) Committee was published today. The Rapporteur of the draft Opinion is MEP Catherine Stihler (S&D, UK) and we must say that her proposal goes a long way in re-tipping the balance between the interests of rightholders in this debate and those of the rest of the world, which includes in no particular order all Internet users, SMEs, the education, research and cultural heritage institutions and creators. So just for that, we opted for a joyful dance GIF.

But not all is rosy in this proposal, as copyright is a topic where the devil often lies in the details.

Filtering of user uploaded content (Article 13)

What we like:

  • The IMCO Committee has traditionally always been the place where MEPs are most aware of the positive impact the Ecommerce Directive has brought to the development of the Internet and more generally to the EU and its citizens in general. MEP Stihlers’ draft Opinion reflects this knowledge in a very positive manner by ensuring that the proposed wording of Article 13 does not neuter the Ecommerce Directive (AM28 & 63), and recognizes the fact that users are the ones uploading content on these platforms (AM62) .

  • MEP Stihler seems to be one of the people that noticed that online platforms brought good things to users and creators by ‘allowing for diversity and ease of access to content’ (AM23), something that was not exactly oozing out of the EC proposal. I guess being in a Committee that represents consumers can explain that one is a bit more in touch with the daily reality of European citizens.

  • We are happy to see ‘user representatives’ included in any discussions related to user uploaded content (AM65), as one can only guess how users’ interests would be taken into account if such discussions were left only to private companies.

What worries us:

 
  • We would have preferred MEP Stihler to have displayed the same courage as she did with the press publishers’ right (Article 11) and to propose an upfront deletion of Article 13 and all of its Recitals. We do welcome the deletion of part of the EC’s proposed language as a step in the right direction (AM25, 26 & 27) but as stated by leading academic copyright experts in their recent open letter [PDF], ‘Article 13 needs radical reform that may not be achievable through amendments within its current structure. We would advise removing the Article from the Proposed Directive, and focusing attention on improving the procedure for “notice and takedown”’.

  • What’s with the licensing and compensation fascination as a general approach to online content (AM24 &63)? Most of the uploaded content on online platforms is done so directly by the rightholder (=my daughter doing a mash up) and with totally no expectation of a compensation. It is therefore important to mention that the copyright protected works that are of potential concern are those that are ‘unauthorized’, i.e. that have been uploaded without the authorization of the rightholder, where such an authorization is required.

  • ‘Fair and balanced’ licensing agreements always give us a fuzzy feeling, much like pictures of pandas, but they honestly seem like difficult criteria to assess knowing the general tension that exists between the stakeholders involved.

Press publishers rights aka ancillary copyright (Article 11)

What we like:

  • The deletion of the provision and its Recitals (AM21, 22, & 61), whilst recognizing the need to ensure the sustainability of the publishing industry (AM20), with a robust justification for this deletion.

 

What worries us:

 
  • Nothing: deletion is just what the doctor ordered, and what a substantial part of the academic world has just recently asked for in an open letter [PDF].

Text and Data Mining – TDM (Article 3)

What we like:

  • The extension of the scope of beneficiaries of the TDM exception to ‘any individual or entity, public or private, with lawful access’ but with the end of the sentence generating a worry (see below – AM29).

  • The removal of ‘for the purpose of scientific research’ (AM31) as a requirement to benefit from the TDM exception.

  • The recognition that not only contractual bypasses of exceptions must be prohibited, but also technical protection measures that can as easily impede the use of an exception (AM32). We just regret that this dual prohibition is not enshrined as a general principle applying to all existing and future exceptions and limitations of the EU acquis as we do not see the purpose of crafting ‘ideal’ exceptions if private companies can render them useless through either contractual provisions or technical measures.

What worries us:

  • The loophole regarding the security and integrity measures that can be used by rightholders has actually worsened with MEP Stihler’s proposed amendment to Article 3 (3) (AM33), as no requirements of proportionality, necessity, efficiency, etc., are put in place.

  • The extension of the scope of beneficiaries of the TDM exception to ‘any individual or entity, public or private, with lawful access to mine content’: isn’t legal access to the content the criteria that should be upheld? (AM29)

User Generated Content – UGC (Article 13a new)

What we like:

  • MEP Joulaud surprised us by adding a UGC exception (nothing personal: just that he is in the CULT Committee), and this pleasant surprise is now becoming a habit it seems, with MEP Stihler also putting one on the table (AM66).

  • The exception proposed in this draft Opinion is clearly mandatory, a pre-requisite for any exception that applies to online behaviour.

What worries us:

  • The criteria for a user to benefit from this new exception go beyond the three-step test required by the Bern Convention and are not obvious to interpret (AM66). This is not exactly ideal in terms of legal certainty for users and could lead to very diverging applications across Member States depending on the interpretation given to  ‘the use of the new work is done solely for non-commercial purposes’ (sub b), the inclusion of the source (sub c) and the criteria of ‘substantially’ differentiated from the original work…Looking at this cumulative requirement, I guess my kids posting a meme should still worry me!

Research, education and cultural heritage (Art 4-9)

What we like:

  • The recognition that ‘public-private’ partnerships are part of the research landscape and the need to ensure these are not stifled by commercial/non-commercial type considerations (AM1).

  • The acknowledgment that education can be provided by a variety of organisations, including libraries and cultural heritage institutions (AM4 & 5), that cultural heritage institutions fulfil a variety of general interest missions (AM30 & 37) and that their work needs to be enabled, including where it requires cross-border partnerships(AM9, 11 & 41). It is refreshing, though surprising, to see that MEP Stihler has hence been more conscious of the culture and education dimension of this dossier than her colleague MEP Joulaud, from the CULT Committee!
  • The reminder that according to established copyright principles, compensation mechanisms (such as levies) ‘should be limited to cases where there is a risk of unreasonable prejudice to the legitimate interests of rightsholders’ (AM6 & 41). 

  • The introduction of the e-lending issue faced by libraries, which was put aside as a hot potato by the European Commission under the pretense that a CJEU case was pending (other parts of the EC proposal seem to be less scrupulous in following CJEU case law so why the sudden shyness, one could wonder?) (AM13 & 47)

  • The extension of Article 4 to teaching or scientific research‘ (AM36) and the repetition of the prohibition of contractual bypasses of the exception granted under Article 4 (AM38), 5 (AM44) and 5c (new) (AM47), though oddly without the addition of the prohibition of technical measures, as MEP Stihler rightfully added for TDM.

Further Reading