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#CopyrightWeek – Transparency and Representation: the EU copyright consultation process as an illustration on how not to do things

#CopyrightWeek – Transparency and Representation: the EU copyright consultation process as an illustration on how not to do things

The theme of today’s #Copyrightweek is ‘Transparency and Representation’. The idea is to tell policy makers that copyright policy must be set through a participatory, democratic, and transparent process. It should not be decided through back room deals, secret international agreements, or unilateral attempts to apply national laws extraterritorially.

Whilst this message tends to make most people think of trade agreements and the negotiations that lead to them (you know, all the funky stuff with acronyms that usually include a T? TTIP, CETA, ACTA, etcetera), one does not have to go down the international route to find symptoms of the malaise that surrounds debates about copyright. Not a case of the ‘boys club’ but rather one of ‘the rightholders club’.

Just staying nicely in Brussels is sufficient to get an idea on how copyright debates (dys)function. For illustrative purpose, we have decided to look more specifically at the ‘consultative’ and legislative process that took place in the run-up to the publication of the European Commission’s (EC) proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market (DSM) [2016/0280(COD) – COM(2016)593/F1].

More specifically, we focus on two aspects:

  • the consultation process; and,
  • the blatant disregard of findings from studies the EC itself commissioned.

A. The consultation process

The EC held a public consultation on the role of publishers in the copyright value chain and on the ‘panorama exception’ (March-June, 2016). In this context, C4C set-up an answering tool and guide, which offered citizens and other stakeholders an easy explanation of the EC’s complex and jargon based questions, in order to help them understand the issues at hand. This answering tool and guide was available in the 3 official consultation languages (English, French and German), but was also offered in 3 additional languages (Italian, Spanish and Polish) to encourage a broader group of people to engage in the consultation process. This effort is referred to by the EC, as “the third party campaign ‘fixcopyright’”. Based on this experience, we believe that the consultation process is flawed at 3 levels, namely:

  • the languages wherein the consultation was made available;
  • the summary of the consultation results; and,
  • the flagrant hampering of citizen participation.

1. The languages wherein the consultation was made available

The EC specifically asked respondents to the public consultation to provide input on the impacts of the Spanish copyright law on different stakeholders, as Spain has already introduced neighbouring rights for press publishers in their national legislation. Therefore, it is problematic, to say the least, that the EC never published the consultation questions in Spanish. This approach is rather dubious: whilst Spanish stakeholders, citizens, news publishers and content aggregators, are directly concerned, the EC does not offer them the opportunity to access the consultation in their native language. So, how are they expected to share their experiences around the impact of their national ancillary copyright legislation (knowing this set of rules has only been adopted in two EU countries, namely Germany and Spain?

This approach from the EC has been the subject of a Parliamentary Question by MEP Daniel Dalton (ECR, UK), to which the EC has replied that “individual replies to this consultation could be provided in any of the EU official languages”. This response show a disconnect between the policy field and stakeholders, because for one to respond in his native language, this presumes that one can understand and interpret the questions being put forward in English. This can prove to be quite challenging for a non-native English speakers, especially if the questions asked are already hard to grasp for a native English speaker due to the use of jargon. Therefore, one could wonder if the EC was truly seeking input from Spanish stakeholders, one of the sets of citizens directly affected by the new rights the EC ended up proposing.

2. The ‘summary’ of the consultation results

The EC waited until the publication of the draft proposal, on 14 September 2016, to publish the synopsis report of the abovementioned public consultation. However, it seems common practice from the EC that a summary report of the consultation results is made in the run-up to the publication of the draft proposal, but this was not the case for this consultation.

The first thing we notice, is that the EC decided to split the synopsis report in two separate ones, namely one dedicated to the analysis of the replies to the ‘publishers’ section and one dedicated to the analysis of the replies to the ‘panorama exception’ section. This implies that the general overview of the contributions to the consultation is rather scarce.

This is reflected in the EC’s reporting on the number of consultation replies received. The EC implies that 6.203 replies were received, but also states that the section on the ‘panorama exception’ received 4.876 replies and that the section on publishers received 3.957 replies. The separate number of replies adds-up to a total of 8.833 replies. The discrepancy with the EC’s reported total of replies could indicate that a large number of respondents opted to reply to both sections. The synopsis reports neglects to mentions this, nor does it provide any further details on it.

Next to this, there is also a mismatch between the number of contributions to the consultation that were published online, namely 5.721 replies (see table below), and the total of 6.203 replies. This implies that 482 responses remain unpublished. We would assume that this is due to the fact that these have been marked as confidential by the respondents. However, again, the synopsis reports neglects to mention this.

Consultation responses received

‘Fixcopyright’ campaign

2.791

Anonymised

1.361

Individuals

1.176

Organisations registered in the EC-EP joint transparency register

216

Organisations not-registered in the EC-EP joint transparency register

177

Total respondents

5.721

A second observation from our side, is the fact that while the EC claims that these reports are a ‘comprehensive assessment’ of the consultation results, nothing less is true. This is illustrated by the fact that the EC limited itself to the use of terms as ‘some’, ‘few’, ‘majority’, ‘vast majority’, ‘generally’, ‘clearly supportive’, etc., without actually pinning down the number of respondents supporting the claims that are being presented in the report. As a result, this total lack of concrete numbers renders the synopsis reports to mere appreciations and perceptions of their authors. We were certainly able to do the math for the responses we collected, and the results were pretty straightforward, as illustrated below.

A third point that we would like to draw attention to, is the EC’s treatment of the responses collected through our answering tool and guide. The explicit references to “the third party campaign ‘FixCopyright’” are questionable, as our efforts merely replicated the EC’s public consultation. Therefore, we wonder why it deserves a separate treatment. More specifically, in our view this raises questions about the EC’s motives to treat our responses differently, instead of merging all responses to facilitate its own analysis. This can be correlated to a ‘philisophical’ stance take by the EC, whereby it considers that if it receives multiple answers to a consultation with the same responses or very similar responses, all such similar answers will considered by the EC as constituting one single answer (so, in other words, 2000 answers suddenly only weigh in as 1, as you need to show evidence of originality to please the powers that be).

Finally, we believe the EC could do more to allow public scrutiny of the consultation responses received, and this by publishing them in a machine-readable format. In this case, the EC seems to deliberately provide the data in the most complex format possible, as such throwing up barriers to anyone wanting to conduct a meaningful analysis of the responses. Luckily, the challenge to make this data more usable has been taken-up by MEP Julia Reda.

3. The flagrant hampering of citizen participation

C4C, and stakeholders supporting its efforts, developed the ‘FixCopyright’ answering tool and guide in such a way that the collected responses could be transferred to the EC’s official consultation tool ‘EUSurvey’. This approach worked well for previous consultations, such as the one on online platforms and IPR enforcement. Until we were confronted with a technical barrier for this specific consultation, as the EC decided to impose a CAPTCHA in order to submit ones consultation response. This proved to be a technical impediment which stopped us from transferring the collected responses.

A similar measure was initially put-in place for the online platforms consultation, but in that case the responsible Unit from DG CNECT removed the CAPTCHA following a friendly request from a C4C signatory.

In this case, it took a tremendous amount of effort, including discussions with the DG CNECT services and various Cabinets, before the EC agreed to accept the responses collected.

If the EC, in the in the spirit of Better Regulation, truly wants to engage citizens and other stakeholders to contribute to its public consultations, then it should open them up in all possible ways and facilitate all efforts that are trying to engage stakeholders beyond the so-called ‘Brussels bubble’.

B. The blatant disregard of findings from EC commissioned studies

From C4C’s point-of-view, the EC’s draft proposal shows a blatant disregard of the findings from studies commissioned by the EC (on top of not taking into account the opinons voiced during the consultation process), studies which are by the way funded with public money.

A concrete example are the EC’s proposed measures to ensure fair remuneration in contracts of authors and performers (see Title IV – Chapter 3, Articles 14-16). In this area, the EC commissioned two studies, namely:

  • A study on the remuneration of authors in the music and audio-visual sector, which dates from July 2015; and,
  • A study on remuneration of authors of books and scientific journals, translators, journalists and visual artists for the use of their works, which was only made publicly available on 30 September 2016, so after the publication of the draft proposal.

In both studies, the authors clearly point out that measures, such as the ‘best-seller clause’ that is proposed by the EC and already implemented in various forms by several Member States, do not carry a lot of clout in practice.

“Authors and performers certainly have other protective measures at their disposal which they can incorporate into contracts, such as a termination right or a best-seller clause. However, in our opinion, these clauses lack the kind of direct, up-front impact on remuneration that can be observed in a restriction of the scope of transfer. These clauses work rather as ‘ex-post’ remedies and, additionally, require enforcement by the author or performer. Having authors and performers challenge the contract can prove complex, expensive and time-consuming and thus impair the original purpose of the clause.” (Study 1 – pp. 59-60 – emphasis added)

“These clauses work rather as ‘ex-post’ remedies and, additionally, require enforcement by the author. Having authors challenge the contract can prove complex, expensive and time-consuming and thus impair the original purpose of the clause. Moreover, authors are often hesitant to challenge their contract in fear of endangering an on-going relationship with their publisher or being blacklisted by other publishers.” (Study 2 – p. 122 – emphasis added)

These studies have provided clear indications to the EC that measures, such as ‘best-seller clauses’, do not prove to be adequate means to support creators in obtaining fair remuneration. Practically, that type of provisions where a creator can go and bang on a table and ask for more money, only works if the creator is J.K. Rowling or equivalent, or if it’s someone on the verge of retiring and who hence does not care for his/her future career perspectives. Nevertheless, the EC blatantly neglected these findings, and presented an ineffective and suboptimal solution as preferred option (embodied in articles 14 and 15 of the EC’s Copyright in the DSM proposal), leaving creators defenceless, whilst giving the impression to step-in to support their cause. 

More recently, the European Parliamentary Research Service (EPRS) published a briefing providing its initial appraisal of the European Commission’s Impact Assessment (IA). Herein the EPRS remarks that “the IA, which is very dense, is based on limited quantitative data”, and points out that the European Commission openly acknowledges this fact. It also considers that the IA “would also perhaps have benefited from a more detailed assessment of social impacts and impacts on fundamental rights”, and concludes that “concerning rights in (press) publications, it would have been useful if the IA had provided more thorough reasoning regarding the new ancillary right”. This shows that we are not the only ones who think that the EC took the easy road when assessing what to do to modernise copyright, rather than conducting a thorough assessment of what needs be done to bring copyright in sync with the 21st century.

Conclusion

To quote the recently passed away George Michael in his Wham days, ‘If you’re gonna do it, do it right, right? Do it with me’. Or less cryptically, policy makers considering the thorny issue of copyright should follow at the very least the following steps as crucial to any policy making process:

  1. Do not limit discussions to the usual suspects in terms of stakeholders, especially when the issues at stake affect the daily life of every citizen.
  2. Citizens are not goofballs or little children that should be held away from the ‘grown up’ discussions. They are in many instances the people that are most directly targeted or the ones that most strongly feel the collateral damage stemming from legislative proposals. Hindering their participation or negating their voice is not due process.
  3. If you are going to ask the opinion of experts, be prepared to accept they might disagree with what you wanted to hear. If you’re not, just save taxpayers’ money and don’t pretend you care about evidence-based policy making.

We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation.

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Text and Data Mining: how the Future TDM workshop highlighted the draft exception must be improved for TDM to have a future in Europe

Text and Data Mining: how the Future TDM workshop highlighted the draft exception must be improved for TDM to have a future in Europe

For the legal geeks among us, it is now old news that the European Commission, after promising to modernise copyright, issued a rather unhinged and disappointing copyright review proposal aimed at creating what it claims to be a ‘well-functioning marketplace’.

Neighbouring rights aka ancillary copyright for media snippets, robocopyright type content filtering on user uploaded content, mandatory exceptions that can be overridden by Member States or in case of licensing deals (huh?), … you name it: the review has it.

There is however one small light at the end of that very skewed and scary-looking tunnel: the copyright review does comprise a mandatory exception for text and data mining (aka TDM) in its Article 3 (with additional explanations in Recitals 8 to 13), a crucial element to enable the use of modern techniques on copyrighted material. To show how important TDM is and what’s at stake, we actually put together a short video which we encourage you to share. (Want to skip directly to our ‘magic recipe’ for a workable TDM exception click here)

Why is everyone in the research and innovation fields not throwing a party then? Well, because the proposal as drafted by the European Commission comprises considerable flaws, many of which were highlighted at the FutureTDM workshop.

Where the proposed TDM exception gets it right

Text and data mining is defined under Article 2 sub (2) as ‘ any automated analytical technique aiming to analyse text and data in digital form in order to generate information such as patterns, trends and correlations’ and the proposed TDM exception basically reads:

Article 3
Text and data mining

  1. Member States shall provide for an exception to the rights provided for in Article 2 of Directive 2001/29/EC, Articles 5(a) and 7(1) of Directive 96/9/EC and Article 11(1) of this Directive for reproductions and extractions made by research organisations in order to carry out text and data mining of works or other subject matter to which they have lawful access for the purposes of scientific research.
  2. Any contractual provision contrary to the exception provided for in paragraph 1 shall be unenforceable.
  3. Rightholders shall be allowed to apply measures to ensure the security and integrity of the networks and databases where the works or other subject-matter are hosted. Such measures shall not go beyond what is necessary to achieve that objective.
  4. Member States shall encourage rightholders and research organisations to define commonly-agreed best practices concerning the application of the measures referred to in paragraph 3.

 

 The proposal comprises four positive elements:

  1. There is an exception: this may seem ridiculous but seeing the lack of ambition of the proposed copyright review, one tends to count one’s blessings these days.
  2. The exception is mandatory, as opposed to the approach based on voluntary exceptions of the current copyright framework (as set out in the InfoSoc Directive), which results in a patchwork of implementations and total legal uncertainty in an online or cross-border environment.
  3. The exception explicitly states that contractual bypasses will not be allowed (art 3 par 2). Frankly, such a principle should be applied to all the existing exceptions as one can hardly understand why policy makers spend months crafting exceptions, arguing there every comma, negotiating there scope, scale and detail, to have all of that legislative work brushed aside by one obscure contractual clause that often the parties at the table not holding copyright cannot negotiate. But let us rejoice at least that one exception will get the common sense treatment of ‘the law is worth more than a contract’.
  4. The exception is not limited to non-commercial activities. This is important as research activities even within institutions such a s universities are often conducted through public-private partnerships or with some form of private funding, which hence makes any restriction to non-commercial unworkable in practice.

Where the proposed TDM exception fails to deliver a positive outcome for Europe

The main legal shortcomings were highlighted in the presentation given by Lucie Guibault, Associate Professor at the Institute for Information Law of the University of Amsterdam, whilst the ‘security & integrity’ addition creates a major practical loophole in the entire legal provision:

20160927_142854

Presentation by Prof. Lucie Guibault at the FutureTDM Workshop:

  1. The beneficiaries of the TDM exception are too limited in scope (Article 3 par 1 & Recital 11): the beneficiaries should not be limited to ‘research organisations’ as this is detrimental at two levels: on the one hand, it excludes businesses from benefiting from this exception, at a time where a vibrant start-up community is looking into the potential of these new techniques, and on the other, it excludes individual researchers that are not affiliated to a given research organisations from working in an independent manner if they need to use TDM with legal certainty. The latter also includes investigative journalism, and goes counter to the European Commission’s claim it wants to promote ‘Citizen science‘.
  2. The purpose of use is too narrowly defined and could give rise to discussions (Article 3 par 3 & Recital 12): the proposed draft only covers ‘scientific research’, an extremely limited scope that could even within the scientific community lead to discussions between the proponents of soft sciences (social sciences) and those that only see the merit of hard sciences (natural sciences). It certainly excludes many innovative uses of TDM that bring benefits to our society (or could have the potential to do so) for no obvious reason.
  3. The types of material that are covered by the exception could be interpreted in and unduly restrictive manner (Article 3 par 1): can TDM be applied in an unrestricted manner to any type of minable content or does the exception only cover materials ‘associated with scientific publication’?
  4. The possibility for rightholders to neutralise the exception in practice through so-called security & integrity measures creates a gaping loophole for abuses (Article 3 par 3 & Recital 12): by allowing publishers to introduce random measures to protect the ‘security and integrity’ of their network, the effective use of TDM could simply be rendered impossible, or the use of the publishers own platforms could become the only viable alternative for researchers. There are already known cases of Captcha measures being implemented if researchers want to download articles in bulk (which means algorithms cannot work as human intervention s constantly needed), or measures whereby only one article can be downloaded every 20 seconds (which, as pointed out by Professor Ananiadou from the University of Manchester at the FutureTDM workshop, sounds like a lot but actually means you need 12 years to download 20 million documents). This loophole  could allow rightholders to arbitrarily block access for researchers trying to conduct text and data mining. Safeguards in line with those put in place in the context of ‘traffic management’ by telecom operators could be considered (see Article 3 par 3 of the Telecoms Single Market Regulation [EU 2015/2120]), with requirements of proportionality, efficiency, non-discrimination (for example with the security measures applied to researchers’ algorithms vs tose applied to the publishers’ own platform), etc. could be a good starting point to frame this measure.

So what is needed?

The good news is that the Members of the European Parliament (MEPs) present at the FutureTDM Workshop certainly seemed aware that there was room for improvement and willing to tackle the issue. But let’s also be realistic: those were three very well-informed MEPs, out of 751 MEPs in total, so there is a lot of work to be done to inform their colleagues of the need for a proper TDM exception.

Whilst the UK opened the door in Europe for a TDM exception, the one they drafted is also far from perfect, if only because they felt that the existing InfoSoc Directive made it impossible for them to adopt a TDM exception that would cover commercial uses, hence making it skewed from the start.

Singapore, after introducing fair use a couple of years ago, is now also looking into introducing a TDM exception and, in doing so, is making some valid points in its consultation proposal (see pp. 34-35):

  • 3.64 We propose to create a new exception in the CA, which allows the copying of copyrighted works for the purposes of data analysis. The user of the work must have had legitimate access to the work in the first place (e.g. a subscription to an academic journal, or collating online articles which are not locked behind a pay-wall), and the exception would not differentiate between commercial or non-commercial activities, which means the final analysis can be commercialised. However, the exception is not intended to cover situations where commercial benefit came from the actual copies of the works instead of the analysis. An example is where someone copies the works to collate into a large database for sale as a service without doing any analysis on it.

Example:
Muthu works at a media monitoring company, which has taken on a project by a fast food chain to help determine customer sentiment towards their latest menu item. Muthu starts by collating any social media and food blog posts which mentioned the menu item’s name, as well as comments left on review websites and replies on the fast food chain’s websites and social media outlets. As part of the collation, he ends up making a copy of all of the posts, comments and reviews. He then uses his company’s proprietary tool to analyse the data and determine whether general customer sentiment was good or bad towards the new menu item. This sentiment analysis was then passed on to the fast food chain. Under the current CA, any of the people who had made the posts, replies or comments could potentially claim that Muthu did not ask their permission to make copies of their creative works. With the proposed exception, the copying of such creative works can be done without permission as long as the purpose is for data analysis. However, if Muthu’s company simply forwarded the copies of all of the posts, comments and reviews without analysing them, to the fast food chain, the exception would not apply.

In other words, here are the ingredients for the magic recipe:

  • Keep what’s good in the proposed TDM exception: it should be mandatory, not distinguish between commercial and non-commercial and not be bypassed by contractual provisions.
  • Expand the scope and scale of the beneficiaries: the beneficiaries should be both natural persons (=human beings) and legal person (=organisations), and should not be limited to research organisations.
  • Do not limit the purpose to scientific research, nor the scope of the minable materials.
  • Ensure that any security or integrity measures implemented by rightholders are open to a rigorous scrutiny and must abide by a set of parameters that prevent abuse.

 

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EC Failed to #FixCopyright: Stop ‘RoboCopyright’ and Ancillary Copyright & Start to Focus on Users and Creators

EC Failed to #FixCopyright: Stop ‘RoboCopyright’ and Ancillary Copyright & Start to Focus on Users and Creators

The European Commission promised to modernise copyright, but instead of creating a well-functioning legal framework addressing the concerns of creators and end-users it proposes to protect old business models by creating what it claims to be a ‘well-functioning marketplace’. To do so, the EC creates ‘RoboCopyright’, compelling intermediaries hosting user-uploaded content to implement content filtering technologies and handing over the content policing to the right holders. Our message to the EC: Stop ‘RoboCopyright’ and ancillary copyright, and start to focus on users and creators.

 

Caroline De Cock, Copyright for Creativity (C4C) Coordinator

 

Following the publication of the European Commission’s (EC) proposal for a Directive on ‘Copyright in the Digital Single Market’, the Copyright for Creativity (C4C) coalition would like to share its outcry about the EC’s lack of ambition and the missed opportunity of this copyright review. Our 3 major concerns are – detailed overview below:

  1. Not addressing the promised objective: The EC’s reform proposal starts from the outset that is more important to achieve ‘a well-functioning marketplace for copyright’, rather than creating a well-functioning legal framework for copyright that address the concerns of citizens and end-users, and enables a digital single market.
  1. The introduction of ‘RoboCopyright’: Ignoring any threats to users’ fundamental freedoms, the EC seems to consider algorithms by private companies should filter European citizens’ content on the Internet. (check out ‘RoboCopyright 2.0‘)
  1. Blatant disregard of citizens’ voices: The EC has shrugged off the input to the consultation on the role of publishers in the copyright value chain and on the ‘panorama exception’; which gave clear indications of what Europeans wanted (results). Instead, the EC (1) proposes an EU-wide retroactive ancillary copyright lasting 20 years, and (2) ignored freedom of panorama, save for a footnote in the Impact Assessment.
The EC claims it listens to the concerns of citizens and takes them into account.
Why not on copyright?

 

More Detailed Overview

Topic Subtopic Copyright for Creativity’s (C4C) Position
 
Missing elements

C4C regrets that the Commission does not seem to be considering the following elements:

  • updates to the other exceptions (many of which are drafted in obsolete terms) and also making them mandatory (Recital 5);
  • an exception for freedom of panorama;
  • an exception for remote access to library catalogues; and,
  • the introduction of a flexible norm complementing the list of exceptions.
Measures to achieve a well-functioning marketplace for copyright Rights in publications – Protection of news publications concerning online uses (i.e. ‘ancillary copyright’)

C4C is deeply worried about the Commission moving forward with the introduction of ancillary copyright at EU level (Article 11 – Recitals 31-35). We have concerns regarding the underlying logic of such an approach where, against a perceived failure from a commercial nature, the proposed remedy is one that creates new rights under the ‘copyright’ umbrella as opposed to a more ‘ex post’ approach. See our infographic.

In short:

  • The right itself should not be introduced, as it does not deliver positive results (see its failure in Spain and Germany);
  • Article 11 §4: A retroactive right for 20 years on news items is simply absurd and disproportionate in light of the economic reality;
  • Considering that hypothetically throwing more money at news publishers will improve journalistic quality seems a bit of a shortcut at best; and,
  • Making new companies subsidise an old business model is not known to be an incentive for the traditional players to adapt to the new digital realities.
Rights in publications – Claims to fair compensation

C4C has reservations about the Commission’s reasoning that publishers should be able to claim a share of the compensation for uses under exceptions (Article 12 – Recital 36).

In short:

  • this seems to contradict the judgement of the Court of Justice of the European Union (CJEU) in the Reprobel case (C-572/13). The CJEU confirmed that the rationale of the fair compensation requirement is intended to compensate for the harm suffered by right holders, and concluded that publishers are not subject to any harm by, in this case, the reprography and private copying exception.
  • As a result, this provision does not create benefits for creators, which are ‘the forgotten’ stakeholders in this review (except for minimal contractual safeguards, left at the mercy of Member States).
Certain uses of protected content by online services

C4C considers that the Commission’s intentions in this area go beyond the scope of a copyright review, as they fundamentally affect both the e-Commerce Directive and the IPR Enforcement Directive (Article 13 – Recitals 37-39).

In short:

  • Article 13 & Recital 38: The text considerably expands the definition of communication to the public to any act of uploading and sharing through online service providers; and,
  • C4C fears that the Commission intentions will force all intermediaries dealing with user uploaded content, including cloud services, Wikimedia, etc., to be compelled to:
  1. negotiate licences with right holders; and,
  2. implement content filtering technologies. We wonder how this can be achieved without a reform of Article 3 of the InfoSoc Directive (see here), Articles 14 and 15 of the e-Commerce Directive, and Article 3 of the IPR Enforcement Directive.

We encourage you to read this analysis by Martin Husovec from Tilburg University, and see also our infographic.

Measures to adapt exceptions and limitations to the digital and cross-border Text and data mining (TDM)

Although having an exception on text and data mining is positive, some elements are worrisome (Article 3 – Recitals 8-13).

In short:

  1. Article 3 §1 & Recital 11: the beneficiaries of a text and data mining exception should not be limited to ‘research organisations’, to avoid crippling any opportunities for start-ups and individual researchers in this area; and,
  2. Article 3 §3 & Recital 12: allowing academic publishers to introduce random measures to protect the ‘security and integrity’ of their network could allow them to arbitrarily block access for researchers trying to conduct text and data mining. Safeguards in line with those put in place in the context of ‘traffic management’ by telecom operators could be considered (see Article 3 § 3 of the Telecoms Single Market Regulation [EU 2015/2120]).

C4C furthermore welcomes the Commission’s intention to make this a mandatory exception and to not limit it to non-commercial uses only. See our infographic.

Use of works and other subject-matters in digital and cross-border teaching activities C4C welcomes a mandatory exception in this area (Article 4 – Recitals 14-17), but worries about the Commission’s plan to allow Member States to ignore and by-pass this exception through licensing schemes (Article 4 §2).
Preservation of cultural heritage C4C considers that the Commission’s intention to update the exception on preservation of cultural heritage (Article 5 – Recitals 18-22) is not going beyond what was already decided by the Court of Justice of the European Union in the Ulmer case (C-117/13). Furthermore, the Commission seems to only enable preservation of objects permanently in the collection. This could create interpretation issues as regard online material and does not recognise the collaboration efforts between cultural heritage institutions to share artworks to ensure an as wide as possible public can enjoy it. We do applaud the fact that the Commission wants to make this a mandatory exception.
Fair remuneration in contracts of authors and performers Fair remuneration in contracts of authors and performers

C4C applauds that the Commission steps up to ensure more transparency and appropriate remuneration for creators (Title IV Chapter 3 – Recitals 40-43).

However, this needs to be ensured throughout the whole value chain in the various creative industries. We stress the need to focus on the whole of the value chain, because the Commission has focused on the so-called ‘value-gap’ (Recitals 37-39) in reference to online services, without acknowledging that creators often do not get a fair deal form their recording companies or publishing house in the first place (see here).

Measures to improve licensing practices and ensure wider access to content Use of out-of-commerce works by cultural heritage institutions

C4C welcomes the fact that Commission considers collective agreements for digitisation and dissemination of out of commerce works (Article 7-9 – Recitals 23-28). The Commission’s intention seems to model this on the Scandinavian “Extended Collective Licensing” (ECL) scheme, allowing collecting societies to assign non-exclusive licenses for non-commercial use of out of commerce works, even for non-members. This would enable works to be shared and accessed across the EU.

 

Other resources

 

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Stop! Filter time!: EU can’t touch this

Statewatch released [PDF] a version of the European Commission’s (EC) Impact Assessment on the copyright reform. Our initial reaction on it is available here.

UUC_IA_InfoGraphic

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Ancillary Copyright: Calling a bad idea by another name, does not make it a good idea

Statewatch released [PDF] a version of the European Commission’s (EC) Impact Assessment on the copyright reform. Our initial reaction on it is available here. In the infographic below we look at the EC’s (lack of) assessment of ancillary copyright – see Copy explaining the beef with his cousin ‘Ancy’ here. So, the Impact Assessment draws all kinds of conclusions on ancillary copyright, while NO ONE CAN SEE THE RESULTS OF THE CONSULTATION WHICH CLOSED ON 15 JUNE 2016. There is not even a synopsis report available. C4C for example knows that looking at the 2819 responses we collected, there was a resounding NO to ancillary copyright.

AC_IA_InfoGraphic

Other resources:

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TDM Exception: The Impact Assessment looked so good until we really read it

The leaked EC’s Impact Assessment can be found here [PDF], and our initial reaction on it is available here.

TDM_IA_InfoGraphic

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Dear European Commission, we don’t talk anymore, we don’t talk anymore, (…) like we used to do – The copyright review oddities part 2

Dear European Commission, we don’t talk anymore, we don’t talk anymore, (…) like we used to do – The copyright review oddities part 2

Remember when last year C4C and several of its signatories co-signed two open letters, one addressed to the European Commission and the other to the European Parliament, in order to share our concerns regarding the European Commission’s current approach on copyright matters in its public consultations? It wasn’t even so much about substance as about ‘form’. Our letter back then basically pointed out that in a normal policy-making procedure, the European Commission should ‘at least pretend to listen’ to citizens by:

  1. not finalising their action plan on copyright when there is an ongoing consultation on the topic they have clearly already made their mind up about; and,
  2. consulting in the broadest manner and allowing all citizens to voice their views on all issues at stake.

Well, guess what: we’re at it again.

Rumour has it that the Europe Commission started its inter-service consultation on its proposed copyright review, which basically means that the lead Directorate-General (DG CONNECT) is asking for feedback on their proposal from their colleagues in other departments. At the same time, we note that today, Statewatch released [PDF] a version of the European Commission’s Impact Assessment on the copyright reform, which is supposed to represent the in depth analysis of the European Commission and their justification (to the world and their colleagues) of why they are doing (or not dong) what they’re doing.

So basically, the Commission has seemingly been sweating all summer over all kinds of proposals (the justification of which we will be looking into over the next days) but…. NO ONE CAN SEE THE RESULTS OF THE CONSULTATION ON FREEDOM OF PANORAMA AND ANCILLARY COPYRIGHT WHICH CLOSED ON 15 JUNE 2016!

The Impact assessment looks notably at the latter and draws all kinds of conclusions on it, while there is not even a synopsis report available on the results. C4C for example knows that looking at the 2819 responses we collected, there was a resounding NO to ancillary copyright and an equally strong YES to freedom of panorama.

So how did these responses even remotely affect the conclusions by the European Commission?

Or moving back to popular lyrics, why does the whole process make us feel like:

wedonttalkanymore

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June, a Month to Celebrate Libraries: CJEU Advocate General Issues e-Lending Opinion & C4C Welcomes the Dutch Association of Public Libraries

C4C is proud to announce that the Dutch association of public libraries (VOB – ‘Vereniging van Openbare Bibliotheken’), represents about 170 member organisations in the Netherlands ranging from public libraries, provincial support organisations to library suppliers, signed on to our Declaration which promotes a copyright framework that fosters creativity, innovation, education, competitiveness and access to culture.

Francien van Bohemen, in charge of the VOB’s public affairs & relations, considers that “copyright needs to be renewed”, because “access to information for people, their personal development and that of society are at stake”. Therefore, the VOB decided to join C4C, “to work together to establish a new framework for copyright because the public library cannot fulfil its legal obligations in society in the digital world with the current copyright framework”.

One example of how public library struggle to fulfil their role in the 21st century due to the copyright framework revolves around e-lending. Unlike paper books, which fall under the public lending right, currently public library’s ability to lend e-books is subject to publishers’ willingness to negotiate licensing agreements. Therefore, in 2013 the VOB raised the question to the District Court of The Hague if e-books should also fall under the public lending right. In September 2014, the District Court decided to lodge a request for a preliminary ruling to the Court of Justice of the European Union, sometimes referred to by us as the ‘Court of Common Sense‘.

The District Court’s main question is around the interpretation of the 2006 Rental and Lending Rights Directive, as it is asking the CJEU if the making available to the public, for a limited period of time, of electronic books by public libraries falls within the scope of the lending right. Mid-June, Advocate General (AG) Maciej Szpunar, issued his Opinion in this case. In short, he takes the view that e-lending can fall within the Directive’s scope.

CJEU AG Szpunar starts from the fact that the Directive’s provisions are actually still those adopted back in 1992(!) (§24). In his view, “the anachronistic character of obsolete legal rules is a common source of interpretative problems, uncertainty and juridical lacunae” (§28). Therefore, he considers that “it is imperative to give legal acts an interpretation which takes into account developments in technology, markets and behaviour and not to fix such acts in the past by adopting too rigid an interpretation (§27).

He believes that it is necessary to have a ‘dynamic’ or ‘evolving’ interpretation  of legislation, especially in fields  such as copyright, where technological progress has a profound effect (§28). He thinks that this approach is consistent with the legislator’s intention when adopting EU legislation on copyright, as the Recitals of both the Lending and Rental Rights Directive and the InfoSoc Directive expresses the legislators ‘desire’ to adapt to new technological and economic developments (§29).

In coming to his conclusions, CJEU AG Szpunar takes into account, amongst other things, the observations that:

  • there is no substantial difference between a printed book and an electronic book or between the methods by which they are lent” (§31);
  • licensing agreementsare principally of benefit to publishers or other intermediaries in the electronic book trade, while no adequate remuneration is received by authors” (§34), because “in an environment governed solely by the laws of the market, the ability of authors to protect their own interests depends above all on their negotiating power vis-à-vis publishers“, which results in some obtaining satisfactory terms, while others not (§74);
  • the current climate (…) governed solely by the laws of the market“, so having e-lending fall under the Directive’s scope would make it possible for authors’ interests to be better protected (§36);
  • libraries, and public libraries especially, do not always have the financial means to procure electronic books, with lending rights, at the high prices demanded by publishers” (§38);
  • publishers and intermediaries either contractually limit the opportunities which libraries have of lending electronic books (…) or they refuse to enter into (…) contractual relations with libraries” (§38);
  • “exceptions to copyright must be interpreted strictly”,  as argued by the French Government’s intervention in this case (§46), however the interpretation of exceptions must enable (1) to safeguard its effectiveness and (2) observance of  its purpose (§47);
  • several studies show that traditional or electronic lending of books “does not reduce the volume of book sales but may instead increase it by encouraging reading habits” (§69).

Although all the above makes perfect sense, we need to call upon the CJEU again to help us cross the copyright minefield laid out by those right holders who struggle to think in the interest of creators and consumers, and who keep holding on to outdated views. Those right holders often misrepresent themselves as speaking on behalf of creators. Luckily in this case two organisations stepped-up on behalf of creators to support the VOB’s viewpoint, namely the Dutch collective management organization for (screen)writers, translators and freelance journalists (Stichting LIRA) and the author’s rights organisation for visual creators in the Netherlands (Stichting Pictoright). The Dutch Publishers Association (NUV – ‘Nederlands Uitgevers Verbond’) also decided to intervene in the case to take-up the defence of their licensing solution.

We hope that the copyright reform, expected for the 2nd half of 2016, will:

  1. take a lesson from CJEU AG Szpunar’s Opinion that licensing is not the ‘magical wand’ that some right holders proclaim it to be, and definitely not for creators and consumers; and,
  2. brings some relief before this constant battle preventing copyright to enter the 21st century in more unnecessary casualties. Especially for areas such as (public) libraries, and education and research, as we should not forget that these touch upon the fundamentals of our society and impact not only current, but also future generations.

C4C welcomes the VOB, and together we eagerly await the CJEU’s judgment later this year. In the meantime, we see this as the start of 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 Francien van Bohemen, in charge of the VOB’s public affairs & relations, at bohemen@debibliotheken.nl.

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2819 responses collected with two key messages on how to #FixCopyright: NO to ancillary copyright – YES to freedom of panorama

2819 responses collected with two key messages on how to #FixCopyright: NO to ancillary copyright – YES to freedom of panorama

Thank you!

We are pleased to inform you that after closing the YouCanFixCopyright Answering Tool on 14 June, we were able to transfer 2.819 responses on the public consultation on ancillary copyright and freedom of panorama to the European Commission. Moreover, our copyright educational videos on ancillary copyright and freedom of panorama were also quite a hit, as they already attracted more than 3.250 views each.

We would like to express our sincere appreciation for everyone’s efforts to help us make the #FixCopyright campaign around the public consultation such a huge success! We are looking into possible new actions to continue our efforts throughout the discussions on the review of the copyright framework, and we hope to be able to count on the continued support of our members and the general public. A special thanks also goes out to our friends from Save the Link, who supported us by referring to our website and keeping the fire alive.

So what is the message?

When you look at data, it is sometimes difficult to extract the meaning coming out of the responses to a consultation, especially in Brussels, the city where black and white sometimes occur but everything mostly bathes in shades of grey.

Well, let’s say that the results of this consultation in terms of the responses collected through our tool were pretty clear: No to ancillary copyright (aka neighbouring rights) and Yes to freedom of panorama. Of course, as C4C we sent in our own response which can be found here and which is very much along the same lines. And if you want to have some background information about the consultation and how the various envisaged rights could affect stakeholders, the FAQ part of the YouCanFixCopyright.eu website is still live.

The infographics below paint indeed a clear picture about how people think the European institutions should #FixCopyright, and frankly we think that message is the much looked after rainbow in the grey skies. Of course, the responses we collected must be added up with the responses the European Commission collected directly and we look forward to the publication of the total set of answers, to dig more deeply into the available data. So watch this space!

Show me the numbers!

Download the an image of the infographics: Potential Impact, Actual Effects & Freedom of Panorama

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The Copyright Reform: Everyday I’m Hurdling – The EC’s latest hurdles on the race to the finish line

The  copyright debate often feels like a hurdle race, and its seems that the current race to the  presentation of the European Commission’s (EC) copyright reform proposal has been extended along the way from the 110 meters hurdles to the 400 one. While we were expecting to see the finish line before the beloved Brussels summer break, suddenly a new set of obstacles has popped-up, as the EC launched a yet another public consultation on “the role of publishers in the copyright value chain and on the ‘panorama exception’” (deadline: 15 June, 2016). This not only means the race isn’t over yet, but that actually the finish line won’t come in sight before September.

So, what’s this new consultation all about? The questionnaire is split into 2 parts.

Ancillary Copyright

First, it tackles “the role of publishers in the copyright value chain”. In plain English this refers to the so-called neighbouring rights, and more specifically the notion of ‘ancillary copyright’. The latter is a concept that “institutes a copyright fee to be paid by online news aggregators (such as Google News) to publishers for linking their content within their aggregation services” [1], which has been introduced in Germany and Spain, but rejected in countries such as France and Austria.

In both countries these legislative initiatives have been contested for their negative impact, notably on innovative European companies. The Spanish legislation is even more stringent that the German one, as publishers cannot opt out of receiving this fee. The damaging effects notably stem from the fact that the Internet changed the notion of who is a publisher, as now everyone can publish content online, hence exercising their freedom of expression and increasing media pluralism. As a result of this increased creativity and the fact that everyone can be a creator, publications from bloggers and creative commons content falls into the web of ‘ancillary copyright’ when looking at the legal language adopted in Spain, for example.

NERA Economic Consulting depicted the impact of the legislative changes in Spain in the graphic below, in a report for the Spanish Association of Publishers of Periodical Publication.

NERA - Impact Spanish AC Legislation

Who is calling for such a new right, which extends the remit of copyright? It has been vocally requested by several (German and Spanish) press publishers. However, not all publishers are singing from the same hymn sheet and more generally, more and more voices have been questioning the merits of this terrible idea. Amongst them, are:

  • several press publishers who oppose such a copyright extension;
  • 83 Members of the European Parliament, from six political groups, who co-signed an open letter to the European Commission to urge the EC not to introduce EU-wide ancillary copyright laws or copyright rules around hyperlinks. More precisely, the signatories kindly reminded the EC of the Parliament’s rejection of the notion of ancillary copyright. This initiative was driven by the Digital Agenda Intergroup Steering Committee, namely MEPs Vicky Ford (ECR, UK), Julia Reda (Greens/EFA, DE), Marietje Schaake (ALDE, NL), and Josef Weidenholzer (S&D, AT); and,
  • of course, the Copyright 4 Creativity signatories who believe that a European-wide extension of these so-called ‘ancillary copyrights’ initiatives  would be a flagrant disregard of the negative effects it had in Germany and Spain, and who are fearful that copyright extensions, such as these, are causing legal uncertainty for digital innovators and publishers alike, and the European institutions should stop them.

Tonight 6 April, Germany’s digital association Bitkom is organising, together with the State of Hessen, a debate on ‘news publishing and digital innovation’. This is the first debate on the topic  since the launch of the consultation, so C4C is curious to hear what position our German European Commissioner for the Digital Economy and Society, Günther Oettinger, will take.

Want to know more about why we should rebut the idea of ‘ancillary copyright’? C4C signatory IGEL, initiative against an ancillary copyright law , has all the key arguments listed here.

Freedom of Panorama

The 2nd part of the consultation tries to collect input on the ‘panorama exception’, or as the EC puts it the “use of works, such as works of architecture or sculpture, made to be located permanently in public places”.  In plain English, it’s all about the use of images of public space in a personal or commercial context. To clarify the latter, you need to see ‘commercial’ as a broad concept, when you think of the fact that Wikimedia are considered a commercial outlet. This weeks’ ruling by the Swedish Supreme Court against Wikimedia Sweden illustrates their struggle with copyright legislation and the freedom of panorama.

The issue here is that there is an un-harmonised exception in the EU copyright legislation. In practice this means that Member States have chosen to implement it or not, and if they already did so, they did it in different ways. The result is that people are likely to unknowingly break the law, especially when publishing images  online. So, don’t even think to put up a picture online of the European Parliament building in Brussels or Strasbourg, or of something more fun to share with friends, the Atomium in Brussels or the Eiffel tower at night in Paris. Wikimedia collected more absurdities here.

What should be done?

If you ask us, what the EC should be doing instead, our answer would be increasing the level of harmonisation by making relevant exceptions mandatory. It is indeed undeniable that the current differences among Member States in the implementation of exceptions creates legal uncertainty, resulting in citizens, businesses, researchers, teachers, etc. never being quite sure what is legal and what is illegal under copyright law. In our view, increased harmonization enables all users to (better) understand their rights and obligations across the EU, and we consider all EU users should have the same rights in interacting with culture and knowledge.

[1] http://www.nera.com/publications/archive/2015/impact-of-the-new-article-322-of-the-spanish-intellectual-proper.html