For the entire duration of the current EU copyright reform we have advocated that the press publishers right be deleted. Publishers already benefit greatly from the copyrights they have in their content, and don’t need an additional exclusive right to protect or exploit those rights. As is clear from past experiments with the right in Germany and Spain, an additional right for press publishers will not support quality journalism, increase the diversity of media content, or grow the digital single market. Instead, it will negatively affect access to information and the ability for publishers to share using the platforms, technologies, and terms beneficial to them. The existing problem can be addressed by observing a legal presumption that press publishers are entitled to enforce the rights over the works or other subject matter that are licensed to them.
But here we are now years later in the thick of the trilogue negotiations, and the EU legislator is finally trying to figure out what to do about Article 11. Similar to Article 13 and content filter, we expect that the final compromise text of the directive will include some version of the press publishers right.
The waivable press publishers right
Our long-held view remains: Article 11 should be removed from the copyright directive. The provision is patently harmful to journalism, access to information, and the digital single market. The option to make the press publishers right waivable is simply one way to slightly improve the press publishers right if deletion is impossible. If the negotiators can’t be convinced by the mountains of research, empirical evidence observed in prior trials, and near universal public opposition to this unnecessary right, then the legislator must do everything it can to mitigate the negative effects that would be faced by news publishers and news seekers in the EU.
One of the worst aspects of Article 11 is that it applies whether publishers want it or not. As written by Creative Commons recently, the press publishers right “would undermine the intention of authors who wish to share without additional strings attached, such as creators who want to share works under open licenses […] forcing publishers who use CC to accept additional unwaivable rights to receive payment violates the letter and spirit of Creative Commons licensing and denies publishers the freedom to conduct business and share content as they wish.”
The new press publishers right and commons
CC wrote that if including some version of Article 11 is unavoidable, it should include protections for works under open licenses, or in the public domain. For instance, the Council text included a provision that said, “When a work or other subject-matter is incorporated in a press publication on the basis of a non-exclusive licence, the rights […] may not be invoked to prohibit the use by other authorised users [or] works or other subject-matter whose protection has expired.”
The concerns of publishers
Small and medium-sized publisher are worried about the effects the unwaivable press publishers right will have on their operations too. In October the European Innovative Media Publishers sent a letter to the trilogue negotiators outlining how they will be harmed if Article 11 is adopted. They’ve also launched a petition that calls for the deletion of Article 11, or at least the introduction of mechanisms that would “reduce some of the collateral damage to small and medium-sized publishers.” The signatories believe that having their press publications incorporated into news aggregators and other online search tools obviously helps drive traffic to their content, without the need for requiring other payments from aggregators or news agencies. From their petition:
The introduction of a neighbouring right in Germany and Spain make it harder for us to grow online, reach new audiences and develop new markets. They create new barriers for entry for publishers to develop online. In Spain, we are even deprived of control over our own content, and obliged to charge via a collecting society, whether we like it or not. […]
We adamantly believe that any publisher’s right must give publishers the choice to consent to the sharing of their content online. Aggregators, search engines and other online services drive valuable traffic to publishers’ websites, particularly smaller or local ones; and this traffic referral creates huge opportunities to generate revenue through advertising.
Thus, one way to reduce the collateral damage of Article 11 is to make the press publishers right waivable. Even Google, which has basically threatened to shutter Google News throughout Europe if Article 11 passes, is now advocating for the ability of publishers to waive the press publishers right should it make its way into the compromise version of the directive. Google says, “the copyright directive should give all publishers the right to control their own business models and destiny by giving them the choice to waive the need for a commercial license for their content.”
This week, Politico.eu has shared a “non-paper” prepared by the European Commission on article 13, ahead of the next trilogue on 13 December. The Commission has been tasked during the recent trilogue meeting with proposing a compromise solution on the issue of “mitigation of liability in the absence of a license”, in face of diverging views between the European Parliament and the Council.
In general, any direction on this piece of regulation seems to be lost, with actors participating in the trialogue willing to treat the article like a puzzle, in which puzzles can be rearranged in any way possible – beyond the scope of any previously negotiated and legitimized mandate. The process once again proves to be obscure and lacking with regard to basic rules of participatory policymaking.
The Commission was given several guidelines. These include an assumption that platforms do communicate to the public and need to obtain licenses or that automatic blocking should be “avoided as much as possible”, but is also not forbidden.
We decided to check the Commission’s proposal, included in the non-paper against our principles. This has been made difficult by the fact that what is proposed in the non-paper is in many ways vague. Once it becomes more substantial, we will be able to make a definitive judgement. But even now, lack of details on some issues – such as protection of content fitting copyright exceptions from overfiltering – is telling.
1. The Scope of application must be as narrow as possible
The Commission proposes a gradual approach that differentiates platforms. The non-paper states that availability of non-licensed, copyright protected content should be achieved through cooperation between platforms and relevant rightsholders. Such cooperation should take into account size of the service, number of uploaded works, potential economic cost, availability of effective and suitable technologies and their cost for service providers.
This is nothing new – such a gradual approach has been present in most versions of article 13. The proposal lacks a stronger limitation, which could be introduced by a reduction of scope – in particular the narrow application that we present in our 1st principle. – The 1st principle is not met. (also note the well known language on “effective and sustainable technologies”, which would again opens the doorway to content filtering by at least some OCSSPs).
2. Do not introduce general liability exposure
This principle is almost met by the Commission’s proposal, which states that platforms “would in general not be liable if they have cooperated in good faith”. Yet the option of general liability is considered in cases, when the sharing of content has caused significant economic harm. – The 2nd principle is not met.
3. Any content filtering and removal must respect user rights
Lip service to this rule is made by the Commission by stating that “Content that does not infringe copyright, for example because it is covered by exceptions, should stay on the services’ websites”. We are not satisfied by such a statement, which lacks any detail about measures that will encourage – or force – platforms and rightsholders cooperating on removal of infringing content to seriously treat exceptions. “Robust redress mechanism”, which gives users ability to contest measures are not enough. We believe that meaningful damages for unjustified content removal or blocking are necessary. The 3rd principle is not met.
4. Measures must be transparent and accountable
The Commission does not propose any measures that provide transparency or accountability. To the contrary the commission’s proposal introduces arbitrary categories like “high” and “low” value content that would make any blocking or removal even less transparent to users and creators. – The 4th principle is not met.
So our overall judgement is clear – the Commission’s proposal does not meet the four criteria that we have defined.
Towards a User Generated Content Exception?
There is one additional issue worth pointing out, which related to something that we have been calling for since the beginning of the reform process. The need for a User Generated Content exception.
The non-paper states that the “minor uses of content by amateur uploaders should not be automatically blocked”. This is a curious statement for a document that purportedly does not recommend automatic filtering (why then propose an exception to automatic filtering?). Even more interestingly though this could be read as an indirect acknowledgement of the need for a UGC exception. If the Commission really wanted to give “amateurs” that make “minor uses of content” legal security, then it should support the proposal to introduce an UGC exception. Such an exception, when properly enforced, would give users a much stronger protection than what the Commission now proposes.
We have argued again and again that copyright reform is also fundamental rights matter – therefore we co-signed an open letter to the European decision-makers asking them to add human rights safeguards to Article 13 of the proposed Copyright Directive on the Digital Single Market throughout the negotiation process.
The fundamental rights safeguards crucial for ensuring compliance of the new Directive with the Charter of Fundamental Rights are in accordance with our four principles for minimising harm to users, creators and the internet. The letter signed by 27 fundamental and digital rights organizations raises concerns about the current state of play for Article 13 and calls for:
Platforms control all information available on the internet and they are empowered to rank and take down content at their discretion. These platforms serve “the internet” as we know it now. Internet platforms are able to make decisions about freedom of expression with no transparency or accountability and the proposed Directive does not change that. In cases where content is blocked or taken down, it is critical that they properly justify their decisions; decisions that should be subject to proper redress mechanisms to ensure free speech and freedom of information. Besides providing an alternative dispute resolution, the EU could provide, for free, legal mechanisms across the EU to settle disputes between users, copyright holders and internet platforms.
b) Avoid automated filtering and blocking of content
We call on EU decision-makers to avoid introducing a mandatory monitoring obligation. Automated filtering software is notoriously inaccurate and is likely to catch lawful materials that do not breach copyright and that are essential for societal and political debate and comment, such as parody or quotation. Finally, a general obligation to monitor everything a user uploads to the internet is likely to cause a chilling effect on free speech, as users will be more likely to self-censor any content that could risk triggering (inaccurate) filtering software.
Article 13 covers changing the liability regime. The upshot of this is that platforms will be sanctioned if they let copyrighted content through their system without a licencing agreement. The proposed solution would create an incentive for platforms to be overly cautious and take down anything that presents even the slightest risk of legal exposure for the company. On the other hand, it is important to ensure that there are legal repercussions that disincentive platforms from removing content that does not violate copyright. The EU should create a rebalancing incentive. It is important that both rightsholders and platforms are liable for deleting lawful, user-generated content under the guise of copyright protection. This responsibility will positively change the attitude of the platforms and will also more effectively protect user content.
Later today the negotiators of the Commission, the European Parliament and the Council will meet for the 4th trilogue meeting. After having dealt with less controversial parts of the proposal during the three preceding meetings, tonight, will finally see a discussion about Article 13 of the proposed DSM directive.
Given that all three legislators bring similar versions of article 13 to the table, we can expect that a final compromise text will include some version of the article 13 upload filters. There is still a good chance that the negotiations will be inconclusive or that the eventual outcome of the trilogue negotiations will not be approved by either the Member States or the Parliament (which would mean that the directive will fail and there will be no upload filtering requirement for the foreseeable future). But in the context of the ongoing trilogue, the deletion of article 13 (which has been our position so far) is not an option anymore.
This raises the question of how the damage that article 13 will do to the internet ecosystem and freedom of expression can best be contained. Before we do so let’s take a quick look at the positions that are on the table:
EP position: general blocking of all unlicensed content
The provision adopted by the European parliament can only be described as a total disaster. As the result of a misguided attempt to remove the mention of “measures” from the text of the article the European Parliament adopted a version of article 13 that makes platforms liable for copyright infringements for every single work uploaded by their users. This would include any photo, drawing or text uploaded by a user, regardless if these are old works, works that have been created for the express purpose of being shared widely, or the latest blockbuster movie. As a result of making platforms liable for all works uploaded by their users, they are practically forced to install filters that will block everything that has not been licensed to them. In other words, the EP version of article 13 would turn open platforms into platforms that distribute content licensed by the entertainment industry and nothing else.
.. aligns the liability regime of platforms on the one of traditional broadcaster and therefore imposes an absolute liability in terms of copyright, which is a non-sense. This situation would lead to a general blocking, and by default, of all copyright protected content not covered by a licence, even without a request from rightholders.
Yet this is the position that the European Parliament brings to the trilogue table. On the positive side (which in no way balances out the fundamental flaw of unlimited liability) the EP position contains relatively strong safeguards for users whose uploads are wrongfully filtered and has stronger carve outs for services that are excluded from the filtering requirement.
Council position: Implement upload filters or be liable
The position of the Member States makes much more sense, at least technically (unless we assume that it really is the intention of the EP to turn internet platforms into pseudo broadcasters, in which case the EP proposal also makes sense). The council text also makes platforms liable for uploads of their users, but gives the platforms a chance to limit this liability by implementing upload filters. These filters would need to block (and subsequently suppress) all unlicensed materials identified by their rightsholders. If platforms can demonstrate that they have “effective and proportionate” filters in place that “prevent the availability of the specific works identified by rightholders” and that they act “expeditiously to remove or disable access” to infringing works upon notification platforms would not be held liable for infringements of works that have been uploaded without authorisation. In other words, the Council text requires platforms to filter works that are in the catalogues of rightsholders, but allows them to leave other works online unless they are notified of infringements.
This much more targeted approach is still hugely problematic. As we have pointed out previously, filtering technology is simply incapable of recognising whether a work is legally used on the basis of an exception to copyright. While the Council text requires that the filters are “implemented by the online content sharing service provider without prejudice to the possibility for their users to benefit from exceptions or limitations to copyright” this remains wishful thinking given the current state of technology. Faced with liability platforms will almost certainly opt to err on the side of overfiltering, which will result in structural limitation of users freedom of (creative) expression.
Our position: Upload filters remain a terrible idea (but these four principles would avoid the worst effects)
As the negotiators try to find a compromise between the positions of the Parliament and the Council here are four principles for limiting the worst damage that upload filters would do to the online ecosystem and the rights of internet users in the EU. All four can be implemented without changing the overall structure of the various versions of Article 13 currently on the table.
1. The Scope of application must be as narrow as possible
We have argued again and again that given the intention to provide more leverage for rightsholders vis-a-vis the big commercial media platforms the legislator should make sure that article 13 only affects them and not every single platform that allows user uploads. To achieve this the definition of the services affected (the so called “OCSSPs”) must be as narrow as possible. Currently both the EP and the Council text contain an open ended definition combined with a limited list of exceptions. This approach is overly broad and innovation hostile (services that don’t yet exist cannot, by definition, be included in the list of excluded services). The legislator should limit the application of article 13 to “for-profit audio visual platforms that compete with licensed audio or visual services”.
2. Do not introduce general liability exposure
As we have outlined above the European parliament’s version would make platforms liable for all works that are uploaded by their users. This would include works that cannot be licensed by the platforms (for example because they are out of commerce or because they are not considered to be works by their creators or because the creators simply cannot be bothered to license them). From the perspective of platforms, risking to be held liable for infringements is too risky and this will mean that platforms will be forced to block all copyrighted works uploaded by their users for which they do not have a license. This outcome benefits no-one and would severely limit the freedom of creative expression of millions of European internet users. To prevent this the liability of platforms must be limited to those works that they can actually license (as it is the case in the Council text).
3. Any content filtering and removal must respect user rights
The biggest problem with a requirement to implement upload filters is that these filters are only capable of identifying works. Filters are simply not capable of determining if a particular use of a work is infringing or if it is allowed under exception or limitation to copyright. Yet both the Council and the Parliament make it clear that any measures implemented need to respect the rights users have under exceptions and limitation. Given the current state of technology this simply amounts to wishful thinking. Both Council and Parliament include redress mechanisms that would allow users to challenge unjustified blocking or removal of their uploads. Given that overfiltering will happen by design it is not acceptable to put the burden to rectify this on users who can only act after the their rights have been violated. To ensure that measures respect user rights platforms and rightsholders must both face meaningful damages for unjustified content removal or blocking. Neither the Council nor the EP version currently meet this condition. Given the current state of technology that would mean that they cannot rely on automated blocking or removal and will need to ensure that platforms are fully licensed.
4. Measures must be transparent and accountable
The way that article 13 is structured means that copyright enforcement and the safeguarding of fundamental user rights are left to private entities (rightsholders and the online platforms). Privatizing enforcement and rule setting in the hands of for profit entities undermines the idea of an open and democratic digital media space. To ensure that the measures are not abused by rightsholders and platforms, users and creators must have full transparency regarding any blocking or removal of content by platforms. In the interest of full transparency all measures should be based on publicly accessible repertoire information that is available to all platform operators. This ensures that rightsholders can be held accountable for unjustified blocking or removal as a result of faulty repertoire claims and that all platforms have access to the same repertoire information. Neither the Parliament nor the Council text currently include language that would ensure a sufficient level of transparency for all parties involved.
A final chance to minimise unnecessary harm
During tonight’s trilogue negotiations lawmakers should take these four principles into account. Instead of insisting on the flawed texts that they brought to the table, they should attempt to achieve a text that causes minimal harm, to users, creators and the internet ecosystem as a whole. To achieve this they need to make sure that any obligations under article 13 only affect the services they are intended to affect and only concern works from rightsholders who actually intend to license their works to the platforms. Lawmakers also need to make sure that measures implemented fully respect user rights and are fully transparent. Anything falling short of this would result in a legislative measure that will both fail to achieve its objective and will cause substantial collateral damage for the internet ecosystem in the EU. It will further underline the point that the EU copyright framework is about protecting legacy business models of a few at the expense of freedom of expression and innovation.
In our capacity of permanent observers of the WIPO Standing Committee on Copyright and Related Rights, we are attending the 37th session of the Committee, which is taking place in Geneva from 26 to 30 November 2018.
The following is the general statement made by Teresa Nobre on Limitations and Exceptions (Agenda Items 6 and 7):
I’m speaking on behalf of COMMUNIA, the International Association on the Digital Public Domain.
I would like to start by making yet another request to Member States from developed countries, in particular those from my region, to soften their position against the need to harmonise copyright exceptions for the benefit of public interests related to access to knowledge and education, and freedom of expression. These interests are protected by human rights and are of no less importance than the interests of right holders, which are already highly harmonised.
We recall again that the European Union will soon adopt mandatory exceptions for various uses, including for text and data mining, education and for preservation for libraries and cultural heritage institutions. These new exceptions are designed to work across borders, have strong protections against contractual overrides, and give enough flexibility for Member States, namely on the level of remuneration.
We insist: this regional effort shows that agreeing on minimum standards is possible, while still taking into account local specificities.
For these reasons, we have worked together with other NGOs on the draft of a civil society proposed treaty on copyright exceptions and limitations for education and research activities. TERA, our draft treaty, was based on previous work by this Committee and incorporates provisions of existing international agreements and of national laws. We hope this draft will be of use to this Committee and will be taken into consideration during the regionals’ work towards the creation of guidance and recommendations to build an international instrument.
With all this attention for the wellbeing of individual creators it is surprising how little attention has been paid to another provision of the proposed copyright directive. Even worse, a proposal by the European Parliament to include a measure that would directly benefit authors and performers (at the expense of rightsholders pretending to act on their behalf) is currently is facing opposition from Member States.
Under the title “Measures to achieve a well-functioning marketplace for copyright” the Commission had proposed a number of measures aimed at strengthening the position of creators in contractual relationships with intermediaries. Specifically Article 14 introduces a transparency obligation for intermediaries towards rightsholders and Article 15 contains a contract adjustment mechanism intended to give creators some recourse if their works ends up being much more successful than originally envisioned and after which they have already signed their rights away.
These calls for such an unwaivable right were ignored, but in september the European Parliament included the addition of a right to fair and proportionate remuneration. It is one of the few positive elements in an otherwise disastrous position. Where an unwaivable right would have made it impossible for creators to freely share their output (if they wanted to do so), the language proposed by the European Parliament should help to get more money into the hands of those creators that actually want it.
The new Article -14 (read “fourteen minus”) proposed by the European Parliament would require Member States to ensure “that authors and performers receive fair and proportionate remuneration for the exploitation of their works and other subject matter, including for their online exploitation“. This provision would be intended to ensure that creators get remunerated fairly in situations where currently they often have to sign away all their rights from the start, for any future use of their performances in return for inadequate compensation if any at all.
Creators need rights not filters
By granting a right to creators, Article -14 would significantly improve their negotiation position and ensure that they get a fair(er) share of the revenue generated by the exploitation of their works (think the money streaming services pay out to rightsholders). This stands in stark contrast to the approach taken by Article 13 which does not directly improve the situation of creators. Even if one assumes that Article 13 will somehow result in more income for rightsholders in the music industry (which as we have argued before is unlikely) that would not mean that this would also be passed on to the individual creators in whose name the fight for Article 13 is carried out.
If lawmakers want to be serious about improving the position of individual creators then they should support Article -14 which is much more meaningful from the perspective of creators. Unfortunately in the ongoing trilogue negotiations, Article -14 seems to be facing a lot of resistance from both the European Commission and the Member States, which is illustrative of the hypocrisy of the proponents of Article 13 who claim that they are acting in support of individual creators.
The proposed treaty aims to establish minimum standards for copyright exceptions for educational and research purposes, while at the same time affording countries significant flexibility in how to implement these obligations.
International standards in the field of copyright exceptions for education and research purposes are important for several reasons, including:
Reducing inequalities in access to educational and research materials,
Enabling cross-border education and research activities, and
Introducing a balance between the private interests of copyright owners and public interests related to access to knowledge, science and education.
Copyright laws around the world treat educational works and practices differently, resulting in huge discrepancies in the way education can be provided, and oftentimes increasing the inequality in educational outcomes. Everyday activities, such as displaying a Powerpoint presentation or showing a Youtube video in class, are permitted in countries that have strong, well-drafted educational exceptions to copyright, but prohibited in countries with none or poorly designed education exceptions.
Depending on where they are located, educators may have the freedom to choose and use whichever materials they feel are most adequate for their instructional activities, or may need to be extremely careful when selecting those materials to avoid risking civil and criminal action for copyright infringement.
The fragmentation of copyright laws also creates an obstacle to the transmission of knowledge between two or more countries with different educational exceptions. A distance learning program or MOOC developed in one country but delivered in another may be subject to different educational exceptions—one exception might apply to the instructor while another to the participant. In addition, a simple email that is sent from a teacher in country A to a student in country B could be subject to different copyright rules.
As we have said in the past, the path to harmonising copyright laws across WIPO Member States has been remarkable from the perspective of authors and other beneficiaries of copyright. It is only fair that the Member States that benefit from sophisticated copyright exceptions and limitations allow the convergence of rules that protect and expand the interests of educators, learners and researches, through the adoption of baseline international standards for educational and research exceptions.
Building upon the WIPO SCCR work
The proposed treaty aims to advance the text-based work of the committee in the field of educational and research exceptions. Civil society advocates have built upon previous SCCR documents on copyright exceptions, and incorporated the concepts articulated in those documents into the treaty. A section-by-section analysis of TERA can be consulted here.
The greatest innovation of TERA is to focus on education and research purposes, and making the exceptions open to any uses by any would-be beneficiaries, provided that they are made for such purposes, instead of limiting the beneficiaries to formal educational and research institutions, as the previous texts suggested.
In June 2018, WIPO member states adopted the so-called Action Plans on Limitations and Exceptions Through SCCR/39 (2nd Meeting in 2019). An important element of the action plan is to conduct regional seminars to analyze the situation of libraries, archives and museums, as well as for education and research, and to identify “areas for action with respect to the limitations and exceptions regime”. We believe TERA could inform the discussions on exceptions and limitations that will take place in the regional seminars, especially those promoting future text-based work of the committee.
More voices are needed if we want to see substantial progress in this area. Member State delegations that support text-based work on the field of copyright exceptions and limitations, education stakeholders, and public interest advocates need to work together to make their voices heard, and push for productive action on these issues. Endorsing this treaty is a good first step for the members of civil society.
On 19 November 2018, 54 NGOs (including COMMUNIA) representing human rights and media freedom sent a letter to the Council of the European Union. The letter raises ongoing concerns regarding the proposal of the Directive on copyright in the Digital Single Market. The signatories underline that the current proposal risks creating severe impediments to the functioning of the internet and the freedom of expression of all, and urge the Council to take citizens’ rights into consideration during the trilogue negotiations:
For the ongoing trilogue negotiations, we urge you to reject obligatory or “voluntary” coerced filters and to keep the current liability regime intact. Enforcement of copyright must not become a pre-emptive, arbitrary and privately-enforced censorship of legal content.
Moreover, we ask you to hear the voice of academic research that a press publishers’ right will not have the intended effect and will instead lead to a less informed European society.
The letter is not only another call for a productive re-shaping of the future European copyright framework. It is also a strong voice against the predominant market-only narrative around the ongoing reform. NGOs continue to raise concerns related not just to the economic impact of the new Directive, but its deep influence on society, openness, fundamental rights and access to knowledge.
Not surprisingly, the letter focuses on the most disputed provisions–Article 13 upload filters and Article 11 ancillary copyright for press publishers. Since the beginning of the legislative process COMMUNIA has worked on nearly all parts of the Directive comments (including the new educational exception, TDM provisions and others), and we regret that there seems to be little attention paid to these other important aspects as policymakers focus only on the most controversial parts of the plan.