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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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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

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CULT Opinion on the Copyright in the Digital Single Market Directive: bad on filtering, press publishers’ rights and TDM, but putting users back in the picture!

CULT Opinion on the Copyright in the Digital Single Market Directive: bad on filtering, press publishers’ rights and TDM, but putting users back in the picture!

In the process of the adoption of the Directive on Copyright in the Digital Single Market (the copyright review), several European Parliament (EP) Committees will 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 Culture and Education (CULT) Committee has been published last week, making CULT the first one to have a go at rethinking the un-ambitious proposal by the European Commission. The  Rapporteur of the draft Opinion is MEP Marc Joulaud (EPP, France) and FINALLY, someone has decided to talk about the users in a positive and proactive manner when looking at the copyright review. That alone, in itself, deserves to be applauded and to highlight our appreciation, we have decided to embed several of these user generated content illustration in this blog post.

However, while a few elements of the Opinion seem to indicate some willingness to introduce positive elements, they are sadly outweighed by changes that are clearly bad. So let us briefly outline the Fifty shades of grey in this first attempt at redrafting the European Commission’s initial proposal. The proposed amendments will be referred to hereunder with the acronym AM.

Eyes wide shut / welcome to total darkness: Opinion must be rejected on content filters (Article 13), press publishers’ rights (Article 11) and text and data mining (Article 3)

Sadly, the positive attempts in this Opinion are largely offset by the negative proposals in the areas of content filters, press publishers’ rights and text and data mining (in no particular order of ‘really not good’).

Filtering of user uploaded content (Article 13)

Where the Opinion totally fails to deliver, is on its proposed redraft of Article 13. First, C4C considers that content filtering is a matter of legal enforcement that is totally out of place in the framework of this copyright review, especially as the initial proposal by the European Commission goes in a direct collision course with the Ecommerce Directive and established case law by the Court of Justice of the European Union (CJEU).

But aside from that principle-based approach, the redraft proposed by MEP Joulaud considerably worsens the original text (who would have thought that was possible?) at various levels:

  • The text is amended to apply to ‘digital content platforms‘ (AM28 & 71-72) instead of ‘information society service proiders’ and shifts from services that ‘store and provide’ to ‘content uploaded or displayed’ by users. By removing the condition of ‘storage’, the Opinion brings in all the content that is (live) streamed, embedded, etc. hence dramatically increasing the scope of the content filtering provision, which is already absurd as originally proposed. It also makes it technically even more unrealistic, as filtering before upload of a live stream is bound to be challenging, to say the least.
     
  • The scope is also increased in terms of covered content, as the draft Opinion replaces ‘large amounts of copyright protected works or subject matter uploaded by their users’ with ‘significant amounts of user-generated content, copyright protected works or other subject-matter uploaded or displayed by their users’ (AM28).
     
  • At the same time, the rightholders able to claim the benefit of a licence from platforms is limited to the larger ones (AM 72), as digital content platform providers are mandated to ‘enter into fair licensing agreement with any requesting rightholder, provided that he category of works covered by the rightholder represents a significant amount of the content displayed on the platform’. In other words, collecting societies and major labels can come to the table but individual authors or small rightholders are excluded.
     
  • At some point, the text dwells on ‘unfair competition issues’ (AM27) which seem a bit out of place in the context of an EU copyright review.
     
  • And the draft Opinion feels the need to clarify that this content filtering provision does not apply to search engines (AM28), which makes one wonder if anyone thought the original actually did.

The draft Opinion also tries to clarify the redress mechanism (AM30, 73 & 74) by notably requiring rightholders to process complaints in a reasonable time.

Press publishers rights aka ancillary copyright (Article 11)

Here again, let us start from the premise that the proposal to include a neighbouring right for press publishers should be purely and simply deleted and that the Member States that have adopted such a right should be asked to remove it.

Looking at the proposed draft Opinion from that perspective, whilst one can consider that decreasing the duration of the protection from 20 years  to 3 years (AM69) is a good step, it is still a step in a direction that should not even be considered. The same is true when looking at the effort to limit the scope to ‘professional’ publications (AM24) and to activities for commercial purposes (AM68).

Some of the proposed amendments even seem to make the whole debate even muddier, the references to hyperlinking now stating that ‘This protection does not extend to acts of hyperlinking, or to the text fixating the hyperlink, where such acts do not constitute communication to the public under Directive 2001/29/EC’ (AM24)  and ‘Where content is automatically generated by an act of hyperlinking related to a press publication, such content should be covered by the protection granted to press publications under this Directive’ (AM25). The latter is specifically puzzling: is it intended to refer to the type of automatic embeds generated on social media platforms where, if a user adds a link to an article in his status update, that links automatically transforms into a news snippet?

Text and Data Mining – TDM (Article 3)

Whilst the Rapporteur did spot that ‘science’ is a term that means everything and nothing and hence tried to accommodate both the soft and hard sciences disciples (‘The term ‘scientific research’ used in this Directive is to be understood as referring both to the natural sciences and the human sciences’ – AM1) and tried to somehow close the loophole in Article 3 (3) (AM45), his take on the text and data mining (TDM) exception seems to be one that tries to replicate the ‘French’ approach to it, which is currently the most restrictive in place in the EU. This includes:

  • the obligation to destroy content used for TDM ‘once the all the acts necessary for the research have been performed’ (AM3 & 44) – which does not really fit the need of researchers, as pointed out by the Max Planck Institute: ‘In the field of scientific research there is a particularly strong interest in the verifiability of research results. This may determine that the relevant datasets have to be retained and made available for the purpose of verification’.
     
  • the obligation for rightholders to be compensated for TDM uses (AM5 & 47), hence completely negating the fact that the TDM “exception only applies to content for which one has legal access, or the fact that not all rightholders even claim compensation for that legal access as such (e.g. in case of open access). The claimed harm that needs to be compensated relates to ‘ the consequent investments that will be required by rightholders to make technically possible and facilitate the wide use of text and data mining techniques’ (AM5), a claim that is not substantiated by anything in the European Commission Impact Assessment or by any current practices, especially User as no obligation has been put on rightholders that would justify such investments (and at any rate, many of them intend to set up their own TDM platforms, so they would do it for their own purposes).
 

On the ‘lighter’ / positive side of the spectrum: Opinion should be improved on users and creators (more) in the spotlight & (timid) freedom of panorama

Freedom of panorama (AM11 & 55): limiting to non-commercial is more restrictive than the Infosoc Directive

MEP Joulaud displays a courage which was absent in the European Commission proposal, by acknowledging the ‘popular’ request from European citizens to get rid of the absurdity of an absence of an harmonized Freedom of panorama exception in the EU. However, his proposal (AM11 & 55)  fails to truly deliver a satisfying solution, as it limits the proposed exception to non-commercial uses, hence making this flavour of freedom of panorama more restrictive than the current text of the Infosoc Directive 2001/29 authorizes (see Article 5 (3) sub h).

Whilst some people may think that this ‘non-commercial’ uses limitation is not a big issue, it is worth pointing out that the CJEU has in several cases shown a willingness to interpret the notion of ‘profit making’ quite broadly, considering that the fact that a website displays advertisements can be enough to consider that there is a commercial dimension at play (and honestly, is there still much left on the Internet that does not display advertising?).

User Generated Content ‘exception’ (AM12, 13 & 56)

Sometimes, things look too good to be true. When spotting MEP Joulaud’s willingness to integrate the user into the debate around copyright by proposing a form of user-generated content (UGC) ‘exception, we could only cheer with enthusiasm. And, to a certain extent, even after a weekend reading the Opinion, our enthusiasm is still present, although mitigated by some concerns. Indeed, the definition of the content covered by UGC seems extremely broad as it does not seem to be purely  limited to content created or remixed by a user. But all in all, this is certainly a worthy effort by MEP Joulaud.  

Increasing the possibilities for creators to be fairly remunerated (Article 13 to 15)

The draft Opinion also looks at the (contractual) situation of creators and tries to make the provision proposed by the European Commission slightly more effective by notably permitting claims by creators against rightholders to be brought before a court or other competent authority through an organisation acting on the creator’s behalf (AM34 & 35).

One can wonder however if the addition of ‘demonstrated’ in AM34 does not set a higher threshold for creators to bring such claims forward.

A general approach to avoiding contractual bypasses of exceptions & limitations: but what about technical protection measures bypasses?

Where MEP Joulaud did fully grasp the current loophole of the Infosoc Directive regime, is in his consistency at specifying that the exceptions he proposes or adds on cannot be bypassed by contractual provisions, as he makes such provisions ‘unenforceable’.

One may however regret that this principle is not established as applying to ALL existing and future exceptions and limitations to copyright, and why it is not extended to technical protection measures, which often also limit the ability of citizens or institutions to benefit from exceptions and limitations granted by the law. In other words: be even bolder!

In the darker shades of grey: better organized licensing (but still licensing) for education (Article 4) and a mandatory Reprobel regime for Member States (Article 12)

Education exception for digital (Article 4)

Whilst AM8 & 9 acknowledge that it is not easy for an educational establishment to be aware of the existence of licences and to find them, and hence obliges Member States to ‘use or develop appropriate tools, such as a single portal or database’, it still remains stuck in the tunnel vision of licences will solve all, a premise that is not necessarily shared by all parties involved nor confirmed by practice.

MEP Joulaud also seems to consider across his draft Opinion that any exception to copyright automatically triggers harm for the rightsholder, hence requiring that compensation mechanisms be established (AM52 in the case of education).

The so-called Reprobel provision (Article 12)

The originally proposed Article 12 seems aimed at contradicting the judgement of the 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. Article 12 aims to reverse this decision by giving a right to all publishers, ‘including those of press publications, books or scientific publications’ to claim a share of the compensation for uses under exceptions.

MEP Joulaud’s proposal goes further (AM 57 & 70) by making it mandatory for Member States to ‘provide that where an author has transferred or licensed a right to a publisher, such a transfer or a licence constitutes a sufficient legal basis for the publisher to claim a share of the compensation for the use of the work’.

So to conclude on a French note in acknowledgement to the effort made by MEP Joulaud to seemingly table all his amendments in English, our summary of this Opinion is: ‘Bel effort mais peut mieux faire’ (Nice effort but can do better). Or, in other words: you set yourself a laudable objective (see below): now act upon it!

It is the Rapporteur’s view that the proposal does not acknowledge the position consumers, as service users, now occupy in the digital environment. No longer playing a mere passive role, they have become active contributors and are now both a source and recipient of content in the digital ecosystem. Indeed, digital content platforms base the entire design, business model and optimisation of their services around the dual role of their users. From a legal standpoint, it is also the opinion of the Rapporteur that digital practices of users do not benefit from legal certainty under the current copyright rules, in particular the exceptions and limitations, and therefore require a specific approach, a fourth pillar within this Directive.’

Further reading
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#CopyrightWeek – Copyright and Free Speech: the rise of shadow regulation or how to let private companies decide what goes and stays on the Internet

#CopyrightWeek – Copyright and Free Speech: the rise of shadow regulation or how to let private companies decide what goes and stays on the Internet

The theme of today’s #Copyrightweek is ‘Copyright and Free Speech’. The idea is to tell policy makers that freedom of speech is fundamental to democratic systems and that copyright should promote, not restrict or suppress, free speech.

Obvious, no?

Well, actually, not obvious at all, if you look at the copyright creep that has occurred through legislation and ‘moral pressure’ applying all over the Internet. The phenomenon has been identified by the Electronic Frontier Foundation (EFF) as ‘Shadow Regulation‘ and extends beyond the realm of copyright.

Iit basically pertains to the policing of the Internet by private companies, either:

  • at their own initiative;
  • under friendly ‘duress’ of others; or,
  • as a result of legislation that make companies run the risk of being liable ‘if they do not intervene’.

These types of more or less coerced interventions can be found in multiple areas these days (hate speech, terrorist content, rogue pharmacies and the recently popular ‘fake news’ tag), but certainly have been a constant feature in copyright discussions, both in the EU and in other geographies (remember SOPA/PIPA?).

This tendency to push the handling of complex issues on the back of private companies (and thus outside the realm of the law) has recently emerged with a vengeance in 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] currently under discussion in the European Parliament and in the Council of the EU.

In this text, Article 13 stands out as a bit of an oddity, as it actually deals with matters that most digital rights lawyers would expect to see included in other legal instruments, such as the IPR Enforcement Directive or the Ecommerce Directive. The issue at stake is indeed that of the liability of information society service providers (such as online platforms) for content uploaded by their users and that could infringe copyright, packaged under the label ‘sharing of value’.

1. Article 13 as privatised censorship of all content by an undefined number of online companies following an undefined procedure

There are so many loose and dangerous ends in the proposed Article 13, that we have tried to summarize them in the table below:

The text proposed by the European Commission

What does this mean in practice?

Information society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users shall,

Who?

Online players that store large amounts of user uploaded content can cover a lot of very different type of players, ranging from commercial platforms to non-profits and can cover all types of hosted content ranging from:

·         videos (YouTube, Vimeo, Daily Motion),

·         blogs (Tumblr, WordPress),

·         crowdsourced information (Wikipedia),

·         social media (Facebook, Twitter),

·         documents (DropBox, Google Drive),

·         pictures (Flickr), etc. 

What?

This covers all sorts of creations, ranging from literary works, music, choreographies, pantomimes, pictures, graphics, sculptures, sound recordings, architectural works, etc..

→ So this is not confined to Content ID type softwares used on YouTube, which only scan music and video uploads to identify copyright infringements.

It covers also content uploaded by a user who is the rightholder of that content or who has the right to do so under an exception or limitation under EU law, as there is no mention of the fact the content has been uploaded there rightfully or not.

in cooperation with rightholders,

Who?

Rightholders covers a vast reality ranging from big labels or the Hollywood studios to every individual creator if he has not signed away his rights. This is a lot of people to sit around a table and ‘cooperate’ with, especially if you are a smaller company that would prefer to hire engineers than lawyers. Online companies could have to deal with thousands of claimants all wanting a share of their revenues, or simply face the prospect of such interactions and hence have a less attractive business case to defend before investors.

Collecting societies could maybe be used to decrease the number of stakeholders involved, but they are not always known as smooth negotiators and do not necessarily represent the interests of all rightholders.

Cooperation?

What does that even mean when your interests are not necessarily aligned? And where are the users in this relationship?

take measures

 

to ensure the functioning of agreements concluded with rightholders for the use of their works or other subject-matter

To do what?

The obligation here is to comply with an agreement of the rightholder, regardless if that agreement relates to actual copyright infringements or not. It also implies that online platforms ‘use’ the works that are uploaded by their Internet users, a qualification which is not that clear-cut from a legal point of view and is aimed at pretending they are not just ‘hosting’ the material.

or

 

to prevent the availability on their services of works or other subject-matter identified by rightholders through the cooperation with the service providers.

The works and other subject matters to be ‘filtered’ are those identified by rightholders. How that identification occurs is not stated, nor how claims of rights are checked (it is not unusual for several people to claim they have the rights over the same work, and in some cases, all of their claims are true).

Those measures,

 

such as the use of effective content recognition technologies,

This language seems to point directly towards the type of ContentID software used by YouTube, even though the scope of what needs to be recognized goes dramatically beyond what ContentID is capable of handling.

Moreover, such automated tools can only match a file to another, and do not have the capability to recognize more complex issues, such as the fact that whilst a copyright protected file might have been used by a user, it does not infringe the rightholder’s copyright as it falls under an exception recognised by law (for example, parody).

shall be appropriate and proportionate.

 

Safeguards?

Not really. Seeing all of these measures will be (1) decided by private companies and (2) fall under the terms and conditions of the websites, the ‘appropriate and proportionate’ nature of the implemented measures is left to the appreciation of those private companies, with no control by judicial or administrative instances, nor by consumer representatives. This interpretation seems confirmed by Recital 39 of the proposed Directive.

The service providers shall provide rightholders with adequate information on the functioning and the deployment of the measures, as well as,

 

when relevant,

Who will judge relevance? The rightholders is our best guess.

adequate reporting on the recognition and use of the works and other subject-matter.

So aside from investing money into censorship tools, online companies must also make sure they come up with reports to please the rightholders.

2. How Article 13 is in direct contradiction with Freedom of speech principles and other rules enshrined in EU law

So why did the European Commission decide to take this approach of ‘forced voluntary agreements’ between online platforms and rightholders? Because if they proposed an actual legal provision that mandates these same online platforms to scan content uploaded by users, they would be infringing existing European rules ( notably Articles 14 and 15 of the Directive 2000/31 on electronic commerce, also referred to as the E-commerce Directive, which prohibit general monitoring obligations to be imposed on hosting providers), the EU Charter of Fundamental Rights (notably Articles 8 and 11 which relate to freedom of expression and access to information as well as privacy) and established case law by the Court of Justice of the European Union (CJEU), as set out by EDRi.

But you don’t have to trust us on this: this is the view of many academics working on copyright legal issues, as demonstrated by:

  • a paper co-authored by several of them and titled ‘A brief exegesis of the proposed Copyright Directive’, which politely concludes that ‘A comprehensive re-assessment of Article 13 and Recital 39 in the light of the Charter of Fundamental Rights of the European Union and the E-commerce Directive (in particular Article 15) including Court of Justice of the European Union case law is needed, as the proposed Copyright Directive does not expressly address the issue of its compatibility with both of these texts’.
  • the blog post and presentation given on 11 January 2017 by Dr Christina Angelopoulos at the EPP Hearing on Copyright at the European Parliament, as neatly summarized below by the slide she projected at the venue.

Surely, that is a clear message?

Conclusion: ‘Free speech: only as strong as the weakest link’ (EFF)

Source: EFF – Free speech only as strong as the weakest link – https://www.eff.org/free-speech-weak-link

The expression ‘Free speech is only as strong as the weakest link’ was used by the Electronic Frontier Foundation in a 2011 blog post accompanying a dynamic interface that maps out the relationships between users, intermediary services and other users on the Internet.

The reason for which they did this has never been more actual than today:

One of the key pressures on free speech weak links comes from back-room agreements with the companies that operate at each level—which we call Shadow Regulation.

‘(…) The Internet has delivered on its promise of low-cost, distributed, and potentially anonymous speech. Reporters file reports instantly, citizens tweet their insights from the ground, bloggers publish to millions for free, and revolutions are organized on social networks. But the same systems that make all of this possible are dangerously vulnerable to chokeholds that are just as cheap, efficient, and effective, and that are growing in popularity. Understanding these weak links is the first step toward making them stronger.

As the European Commission proposal tries to poke holes into the the free speech chain, we encourage the Members of the European Parliament and the representatives of the governments of the Member States to make each of the links stronger, and to reject the institutionalized backroom deals Article 13 is trying to push down the throat of the Internet and its users.

 


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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#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.