This spring the ongoing effort to modernize the outdated copyright rules enters into the decisive fase. It is widely expected that both the European Parliament and the EU Member states will their position on the proposed Copyright in the Digital Single Market Directive. Right now things are not looking good: instead of a much needed update of the copyright framework that would enable new uses driven by technological innovation, policy makers in Brussels are working towards new restrictions that would would limit how information and creativity can be shared and enjoyed online.
Against this backdrop we are organising European Copyright Action Days on 19-21 march in Brussels. During these days we want to highlight the broad opposition of civil society, libraries, the users industry and many others concerning the restrictive aspects of the copyright reform proposal. During these days activists will convene in Brussels to discuss with lawmakers and advocate for a more future proof reform and to raise attention for the dangers of the proposed measures.
Monday March 19th
The unintended consequences of getting copyright wrong
09:15 – 12:30, The Radisson Red The action days kick off on Monday the 19th with an discussion on “the unintended consequences of getting copyright wrong” hosted by EDiMA. The event will revolve around Articles 11 and 13 of the proposal and will bring forward experts from different sectors to highlight what is at stake focusing on the far-reaching impact on the future of innovative businesses in Europe. You can register here).
Tuesday March 20th
Humans of copyright – the real life stories
08:00 – 09:30, Members’ Restaurant, European Parliament On Tuesday morning Copyright 4 Creativity is hosting a “Humans of copyright – the real life stories” breakfast in the European Parliament (invitation only). The breakfast is co-hosted by MEPs Catherine Stihler (S&D, UK), Lidia Joanna Geringer de Oedenberg (S&D, PL), and Julia Reda (Greens/EFA, Germany).
The Future of Technology in Education
11:00 – 1230, Room A7F387, European Parliament Later on Tuesday morning COMMUNIA is hosting a roundtable on the future of education. How is education benefiting from the use of technology – now and in the future? The round table, co-hosted by MEP Marietje Schaake, will assess this question and explain whether new technological and legal developments (especially article 4 of the proposed copyright directive) can be an enabler or a roadblock in this context.
If you are interested in participating in this roundtable please register here
14:00 – 17:30, The Museum of Natural Sciences On Tuesday afternoon we will convene for the first COMMUNIA salon at the Museum of Natural Sciences, which is located 5 minutes walking distance from the European Parliament. We will bring together activists, academics and policy makers to discuss challenges on the intersection of creativity, value creation and copyright in the online environment.
We will kick off the day with a discussion on the future of creativity in the online environment. This session will focus on the issue of rewarding creators for their contributions, while preserving the open nature of the internet. A second session will focus on exploring the consequences of the half-hearted copyright reform proposal that is currently moving through the European institutions. Under the title “Copyright Directive 2030: what kind of internet will we have in Europe if the current Directive passes?” we will explore a possible copyright landscape in 10 years from now.
Defending freedom of expression and European digital culture
18:00 – 21:30, The Museum of Natural Sciences From 1800h onwards Create.Refresh takes over the Museum of Natural Sciences with an evening of talks, screenings and performances by Alice Valentin, Axelle Tessandier, Edouard Mauriat, François Ier, Marc H’Limi and the Thug Robot. The evening is closed with a DJ set from Simon Lundsgaard and a projection mapping on the building by Makio & Floz.
Wednesday, March 21st
Networking and advocacy workshops
10:00 – 12:00, place to be confirmed On Wednesday morning we will organize an invitation-only networking workshop for activists interested in working together with the aim of being more visible across the EU member states. This workshop will discuss best practices, shared strategies and means of cooperating and supporting each other.
14:00 – 16:00, European Parliament On the Wednesday afternoon we will wrap up the copyright action days with a workshop inside the European Parliament. This invitation-only workshop co-hosted by MEP Julia Reda will provide the opportunity to learn more about how the policy process in the European Parliament works. It will provide a behind the scenes view from policymakers and activists directly involved in the copyright reform process in the last several years.
The Bulgarian EU Presidency is under immense pressure to move the copyright reform forward. Yet it seems like the country is too timid to defend its own interests. A new campaign kicked off in Sofia to try and change that.
Somewhere far out in the uncharted backwaters of the unfashionable end of the EU lies a small unregarded country – Bulgaria. In 2018 this Member State will not only be known for resonant voices and rampant corruption, but for its prominent role in the EU copyright reform. While it holds the rotating Presidency of the Council of the EU it is up to the Bulgarian government to propose new compromises and bring the discussion forward in order to reach a common position between Member States.
But the Council is not Bulgaria’s only copyright stronghold at the moment. The reform falls in the competences of the country’s Commissioner Mariya Gabriel and 10% of the votes in the lead European Parliament committee (Legal Affairs) are to be cast by MEPs from parties currently making up its governing coalition.
The Bulgarian Compromise, a French Affair?
End of 2017 the Council negotiations hit somewhat of a stalemate and the Estonian Presidency was forced to give up, unnerved after trying for months to square the circle between the content industry’s bold demands and fundamental right.
Apparently the Bulgarian Presidency decided to kick 2018 off with a fresh approach. They circulated questions on the most controversial articles of the reform among Member States and then seemed to be proposing a new compromise.
What is even more astonishing is that Bulgaria proposees a limitation of the non-liability regime provided under the E-Commerce Directive. This looks like a very surgical attack this country’s own interests. While a limitation of the liability protection would presumably favour the big rightsholders in the music and film sectors in the EU, whose umbrella organisations are at the forefront of this lobbying, this industry in negligible in Bulgaria. At the same time Sofia and its other cities have come to host a multitude of IT companies paying above average salaries in the poorest EU Member State and a burgeoning start-up scene is at the heart of the creation attractive jobs. Article 13 would essentially stifle start-ups. Why a poor country would propose something that hurts its own industry to help France’s content business is mystifying.
A new campaign.
There is something rotten in Bulgaria and it seems that, as all too often, the connection between Brussels and the national media is not working. While the Presidency is proposing principles that will pretermine the development of the European and Bulgarian industries for at least a decade and will risk submitting its citizens to surveillance regimes unimaginable a decade ago, the national debate is not at all taking place.
This is why a new Bulgarian campaign, supported by digital rights groups, universities, libraries, Bulgarian businesses and Communia itself kicked off last week in Sofia. An open letter was sent to the Ministry Culture and the Bulgarian Presidency laying out the issues of Bulgarian stakeholders. The Bulgarian Presidency and government should stand up for start-ups, users and a fair balancing of fundamental rights.
After more than a year of discussions MEP Axel Voss has finally come forward with his ideas about one of the most controversial aspects of the EU copyright reform proposal. On Wednesday he shared his compromise proposals for Article 13 of the proposed copyright in the DSM directive, that deals with filtering measures aimed at online platforms. The “compromises” drafted by MEP Voss make it clear that with regards to article 13 he has chosen to do the bidding of the music industry at the expense of users, open platforms and pretty much the rest of the internet.
Let’s focus on two main aspects of the approach that Voss is backing (for a more comprehensive analysis of his compromise see Julia Reda’s excellent write-up here). What would the new rules mean for users sharing materials via platforms, and what would the new rules mean for online platforms?
Online platforms: License or cease to exist!
In the version supported by MEP Voss, article 13 establishes two different obligations for online platforms that allow user uploads. In a first step, all platforms are required to obtain licenses from rightsholders. Those platforms that hold “significant amounts” of content also need to take “appropriate and proportionate measures to ensure the functioning of these agreements”. In the case that platforms do not have licensing agreements with rightsholders they need to take “appropriate and proportionate measures to prevent the availability on their services of works or other subject-matter”.
These rules would effectively end the current situation in which online platforms are not directly responsible for content that their users upload. The new rules would mean that all online platforms “that store and provide access to the public to copyright protected works or other subject-matter uploaded by their users” (which means pretty much all platforms) will be directly responsible for the content uploaded by their users and must obtain licenses from (unspecified) rightsholders. If they don’t (which is a strange condition given that all platforms must do so) they must implement filtering rules that prevent all copyrighted works from becoming available on their services. In other words, platforms must obtain licenses from rightsholders or they must cease to exist (as it is somewhat hard to make a business case for a platform on which nothing is available).
While it is easy to dismiss the these conditions as excessive and inconsistent it is important to realise that a scenario in which unlicensed open platforms cease to exist is exactly what the music industry has set out to achieve. In his eagerness to deliver to his music industry friends MEP Voss is throwing willing to throw large parts of the internet under the bus. As we and many others have argued before, the approach embodied in article 13 (to weaken the protections for internet intermediaries in order to give rightsholders more leverage against commercial platforms) is irresponsible and needs to be abandoned before it causes irrevocable harm to large parts of the internet.
Sharing content online? Guilty until proven innocent!
For the users of the few platforms that will survive this assault (ironically this will be the big established players, who are the intended targets of article 13) the consequences will be equally drastic and MEP Voss couldn’t care less about them. Article 13 as promoted by him would establish a “guilty until proven innocent” principle when it comes to sharing creative works online. The language proposed by Voss would require all platforms to implement censorship filters (either to ensure the “functioning of agreements” or to outright prevent the availability of content).
Instead of requiring such filters to respect the rights of users to make use of copyright protected works if such uses fall under the scope of an exception (something which experts agree is not possible with the current state of technology), Voss simply wants to require the platforms to put into place “effective and expeditious complaints and redress mechanisms” for users. In other words, users must be provided with the ability to complain after their uploads have been deleted. Under such an regime the right to freedom of (creative) expression is devalued to the meager right to complain about the inevitable censorship after the fact.
For MEP Voss this seems to be an acceptable price to pay in order to please the big rightsholders. Over the next couple of weeks it will be crucial to make it clear to him (and more importantly the other members of the legal affairs committee who will have a say in this) that curtailing fundamental rights and undermining the underpinnings of large parts of the internet are not acceptable to all of us. Copyright laws that are are designed to benefit a cartel of big rightsholders at the detriment of everybody else lack any legitimacy and are completely unsuited to ensure that Europe can play a role in designing the future.
One of the biggest shortcomings of the discussion on copyright is that most of it seems stuck in a fairly outdated creators vs users dichotomy. Copyright laws around the world are generally structured in such a way that they grant exclusive rights to creators and try to balance these with a limited set of rights for users (in the form of exceptions or limitations to copyright). Based on this design it is widely assumed that more (or stronger) exclusive rights benefit creators and that more (or broader) exceptions to copyright benefit users.
This conception is problematic on a number of levels. For one it is clear that creators benefit from user rights that ensure that users have a basic level of access to culture through educational systems and via public institutions such as museums and libraries. On the other hand users benefit from the exclusive rights granted to creators as they incentivise the very production of culture and knowledge that they want to access.
A more fundamental challenge to this general understanding of copyright is posed by the fact that the roles of users and creators are not mutually exclusive, but overlapping. Many creators are also users of copyrighted materials and the other way around. The technological development of the past two decades has contributed to this blurring of the boundaries between creators and users. Digital technologies greatly facilitate both the creative re-use of existing works and the distribution of the resulting new works. This development has resulted in the emergence of the (somewhat nonsensical) category of “user generated content” and concepts like the “prosumer“.
These concepts deal with users becoming creators, and there are relatively straightforward answers to the challenges posed, such as the need to introduce an exception for user generated content in the EU copyright framework that we have been advocating for. But there is another more interesting side of the coin: creators becoming users. While it is true that creators have always appropriated the works of those authors who came before them, these dynamics have been turbocharged by the digital revolution. Creators have entire libraries of content at their fingertips, and the tools to manipulate, incorporate and build on existing works are becoming increasingly sophisticated. These are exciting times to be a creator, but this new reality also brings creators into contact with the limitations to their creative freedom imposed by copyright law.
Interviews with 29 Australian creators, including documentary filmmakers, writers, musicians and visual artists, sought to understand how they reuse existing content to create. It considered issues such as whether permission (“licences”) had been sought to reuse copyrighted content; the amount of time and cost involved in obtaining such permissions; and a creator’s recourse if permission was either denied or too expensive to obtain.
For the majority interviewed, seeking permission to reuse copyrighted content – for example, as snippets of music or video in films, or long quotes in written works – was a source of great frustration and confusion. The process was variously described as “incredibly stressful”, “terrifying” and “a total legal nightmare”.
Problems mostly centred on time delays and financial expenses. Creators found that the paperwork required to request permission was often long, complex and not standard across publishers and other rights-holder bodies. Many waited months for a response to a request; some never received one at all. Many reported feeling ignored and disrespected. […]
Avoiding and abandoning projects were common reactions to the restraints imposed by copyright law, although a very small number of creators proceeded anyway, hoping to “fly under the radar”. […]
Ideas were filtered out early at the brainstorming stage because they were “too risky” or licensing would be “too expensive”. Some people avoided entire areas of creativity, such as appropriation art, music sampling or documentaries about music or musicians, because it was all just “too hard”.
This makes it pretty clear that ratcheting up copyright protection in response to the changes brought by the digital revolution is not in the interest of creators (it may very well be in the interest of big rightsholders such as publishers, record companies and film studios). Unfortunately this is exactly what is on the table in Europe right now:
Copyright plays an important role in enabling creation and ensuring the livelihood or all types of creators, but as the QUT research shows once again, this does not mean that creators automatically benefit from ever stricter copyright rules. 20 years after the start of the digital revolution, it is time to have a serious conversation about this.
This is a guest post by Bernd Fiedler, policy manager at Wikimedia Deutschland. Bernd previously worked as a teacher and is aiming at improving the framework for free education. WMDE is a Communia member organisation.
In the “Urheberrechts-Wissensgesellschafts-Gesetz” (engl. roughly: Copyright Knowledge-Society Act), the German legislator tries to improve the legal framework for educators and scientists in Germany, as part of a general clean-up of the exceptions section of the Copyright Code. In general, 15% of a protected work can be used for educational and scientific purposes without permission until 2023.
The law, introduced last minute at the end of the legislative period in 2017, was long overdue. It was heavily lobbied, it is limited to five years, and it is already scheduled for review. Still, as Federal Minister of Justice Heiko Maas put it, because it is bundled into a single document, it somewhat clarifies regulation for educators, coming into effect on March 1, 2018.
In Germany, legislation on education and research is fragmented due to the federal constitution. So far, with the exception of the Copyright Code, which is federal law, the state-level executive and legislative bodies have full responsibility for education in their Länder (states). This includes the details on how copyright exceptions and limitations for education are handled in practice, which is regulated very granularly in treaties between the states’ culture ministers on one side and rightsholder representatives on the other. In practice, there were 16 different ways of handling copyright in education and some federal-level treaties that had to be considered.
From March onwards, educational institutions can use up to 15% of any single work (e.g. Book, Film etc.) in order to supply their courses and staff, and use that amount even for third-party presentations, as long as this serves to present the teaching outcome or similar at the institution itself. Single images, “a few” scientific articles from the same academic journal issue, out-of-distribution works and “works of smaller proportions” can be used in their entirety.
Before, the federal law only contained vague legal terms such as “shorter extracts”, “works of smaller proportions”, the meaning of which had to be negotiated into the abovementioned treaties at state level, leading in practice to different extent limitations in each state.
Shortcomings of the new exception
There are, however, shortcomings. The exception only benefits formal education providers – this leaves behind educational programs provided by e.g. museums, libraries and non-profits. Press publications and dedicated educational material are excluded. So, textbooks cannot be reproduced in and by schools. Musical scores may also not be reproduced physically, not even to a small percentage.
Providers of educational resources can copy and share 10% of a single work in an educational material that is intended for non-commercial use (e.g. textbooks). For personal research purposes, scientists can copy up to 75%, but are not allowed to share those copies.
The first draft of the reform furthermore aimed for a more generous copyright regulation in the education sector. In the draft, 25% of a work were to be usable for education. Some rightsholders, mainly textbook publishers, pushed hard against that, claiming that it would endanger 600 publishing companies in their existence, that quality would suffer and expropriation would be imminent. This is also the reason for the unchanged requirement for „reasonable remuneration“ (angemessene Vergütung). The usage itself is estimated based on samples of the institutions’ publications and produced material.
Is TDM legal? it depends…
Text and data mining is allowed for non-commercial research purposes only, meaning that necessary reproductions in the process doesn’t require a license. Resulting corpora, however, must be deleted after the research project has finished, or they have to be transferred to an official archive. Also, the term “non-commercial” being quite unclear and narrowing down the use-cases may be a matter of conflict in the future, especially concerning open licensing, public-private partnerships and citizen science projects.
Libraries, archives, museums and educational institutions are from now on allowed to digitise protected works for preservation purposes. The fact that this had to be explicitly mentioned is a prime example for how strict the general regime of exceptions and limitations to copyright is in the EU.
All in all, the changes coming into force now are a step forward for education in the digital age. But the setup is still far from a great solution. And, due to the pending copyright reform on the European level, there is still uncertainty as to which parts of the national changes included in the Copyright Knowledge-Society Act might need further amendments when the Digital Single Market Directive is adopted, which is why the German copyright law is already scheduled for review.
We would like to see further steps to lower copyright blockades of freedom and exchange in education. So we will keep on pushing for extended education exceptions to enable use and distribution of copyrighted materials for educational purposes as well as wide-spread adoption of Open Educational Resources.
Further information on educational use of protected material can be found here (in German)
We have been arguing for quite sometime now that handing out the power to define the scope of users rights to right holders – in the form of license agreements that they can (almost unilateral) draft and frame as they wish – is bad. Really bad: licenses fragment the legal framework that mandatory exceptions try to harmonize; licenses contain abusive terms or impose obligations on users that are not foreseen in the laws; and licenses have a huge impact on national budgets.
Unfortunately, this message has not come through to all, or not everyone understands what we are saying, or worse right holders have done a nice job in convincing lawmakers that’s the right way to go.
Allowing licenses to override exceptions is the only treat that publishers want
The current copyright reform carried the promise of being a landmark in the history of the EU copyright law. Lawmakers would finally show they understand that copyright is not superior to any of the other fundamental rights that every constitutional law across Europe grants to their citizens, and would make things right. Sadly, however, the prospects of that being the case for education are now very low.
MEPs passed the last year negotiating the scope of the educational exception. On the one hand, those who side with schools, teachers and students, proposed amendments to eliminate some of the constraints that the educational exception contains. On the other hand, those who side with publishers have been pushing for more restrictions, in order to narrow down the scope of the proposed exception even further.
Not enough MEPs understood that the most problematic aspect of art. 4 is not the scope of the mandatory exception (n.º 1) but the fact that Member States may choose not to apply such mandatory exception if licenses covering those uses are easily available in the market (n.º 2).
It is our understanding that publishers could not care less about the scope of the educational exception, provided that they can rule out the application of said exception with their own license agreements. This is copyright “taking the back seat”, as Professor Niva Elkin-Koren would put it.
License terms are not user friendly
It’s disappointing to see MEPs failing to acknowledge that providing this much power to publishers and other right holders will perpetuate the unbalanced power structure of the modern copyright systems. If right holders do not need to negotiate with users the exercise of their rights over their works (which is defensible from an economic point of view), is it fair to ask users to negotiate with right holders the exercise of their rights to access and use such works for educational purposes?
Subjecting educational uses to negotiation is problematic not only because it’s unfair and it fragments the legal frameworks for educational uses of protected works, but because the majority of educational institutions in the EU will be ill-placed to negotiate license terms or will be forced to accept the terms dictated by the licensor.
Even in countries where Ministries of Education will chose to negotiate and buy licenses on behalf of the education institutions under their control, things will not be easier. Accepting to give precedence to licenses over exceptions will open the door to strong lobbying of national governments by publishers, resulting in high transaction costs and naturally increasing the costs of education, at least in those 17 Member States where educational exceptions are now completely or largely unremunerated.
One should not forget that, according to a study commissioned by the EC in 2016, 31,3% of educators pointed out that “I or my school could not afford the price of the license”, when discussing copyright-related restrictions experienced by them that have an impact on their daily activities.
In addition to licensing prices, users will be faced with licensing offers under terms and conditions that are questionable, to say the least. We have been analysing collective licensing agreements in Finland, France and the United Kingdom, and we are shocked to see that licenses that have been negotiated by the governmental authorities contain the following:
Terms that are contrary to the law (e.g. time or quantity limits that are not foreseen in the law) or abusive (e.g. the obligation on schools to ensure that they have other licences in place before undertaking activities that are covered by copyright exceptions),
Terms that impose burdensome obligations on schools (e.g. schools have to ensure that teachers and students comply with the terms of the license and/or take steps to ensure that any breaching activity ceases), and
Terms that grant right holders rights not foreseen in the law (e.g. right to enter the schools’ premises to review the implementation of the licenses or the right to require schools to participate in data collection exercises).
IMCO amendment to art. 4(2) is a nice effort, but not enough
Under the Commission’s proposal, any licensing offer can rule out the application of the education exception, thus negating much of the substance and effectiveness of the exception.
The IMCO committee proposed amendment to article 4(2) intended to give precedence only to extended collective licensing (ECL) schemes. As we said back then this represented a progress in relation to the Commission’s proposal, since it reduces the number of agreements “easily available in the market”, avoiding a situation where schools would be subject to an infinite number of individual licensing offers, with different terms and conditions. However, it does not prevent schools from being forced to accept terms and conditions imposed by collective societies under an ECL scheme.
ECL schemes are something alien to most of the Europeans, because so far they have only been implemented in the Scandinavian countries, but everyone should know that, when a collective management organization is approved by a governmental authority to grant licenses for the use of copyrighted works, including for the use of works whose right holders are not represented by such collecting society, there’s an approval decision that functions as a framework for the issuing of individual licenses to users. The terms and conditions of such individual licenses are then drafted by collecting societies, and they are not a mere reproduction of the terms of the approval decision. This means that would-be licensees may or may not have enough bargaining power to change such terms and conditions.
Therefore, if article 4(2) is to be maintained, a much better approach is the one proposed by Ms. Comodini, which gives precedence over the exception only to existing contractual relations.
MEP Comodini draft amendment to art. 4(2) is the wisest proposal on the table
Before leaving the European Parliament, Ms. Comodini proposed an amendment to art. 4(2) (“to the extent that adequate license agreements exist”) under which the unilateral and discretionary offer of the right holder to conclude a licensing agreement (“licenses that are easily available in the market”) would not be sufficient to deny the educational establishment concerned the right to benefit from the educational exception. An existing contractual relation would be needed to override the exception.
Basically, Ms. Comodini followed here the Court of Justice ruling in TU Darmstadt, where the court considered that only in cases where license arrangements already exist can they take priority over the statutory law, and a mere license proposal doesn’t qualify as such.
Certainly, if schools and governments are not obliged to accept any license offer, in order to keep using the protected works under the educational exception, they will have more bargaining power to negotiate an agreement that is not abusive and onerous to them. And they would still have an incentive to buy such licenses, as such agreements normally tend to offer something more than what is covered under the exception. We believe it would be a win-win situation, and we can only hope now that all MEPs can see the fairness and value of it.
Today, a group of Portuguese organizations, including an important innovation acceleration hub, software companies, free culture and users rights advocates, and the Portuguese association of librarians, archivists and documentalists, sent an open letter to the Portuguese Government asking to the Government to reconsider its position in relation to art. 13 (the proposal to require online platforms to filter all uploads by their users).
As we have noted before, Portugal is, along with France and Spain, one of the countries that supports the Commission’s plan to force online platforms to install upload filters that would prevent any uses of copyright protected not explicitly approved by rightsholders. Portugal has also been pushing forward amendments proposed by the French Government that would significantly change the way online platforms operate. Under the rules proposed by the French, operating open platforms would only be possible with permission from rights holders.
Portugal can still make it right!
The signatories of the letter acknowledge the negative impact that such proposals would have on the fundamental rights of the Portuguese citizens and on the booming Portuguese ecosystem of startups and entrepreneurs, which is as important to the Portuguese economy as the tourism industry. They, thus, ask to the Portuguese Government to depart from its initial position, which privileges the interests of a small class of commercial copyright holders, and to embrace the future of digital innovation instead.
This open letter is yet another reminder that copyright policy cannot be based on the interests of commercial rightsholders alone and a reminder that it is important to challenge the positions of national governments on this important issue (see this helpful overview by MEP Julia Reda for other governments that need to be reminded that we need copyright rules that embrace the future instead of the past).
Contrary to what the negotiating parties expected (and what many civil societies organizations feared), the Mercosur-EU Free Trade Agreement (FTA) was not signed during the World Trade Organization (WTO) Ministerial Conference that took place at the beginning of December in Buenos Aires. Thus, the signing of the FTA that has been negotiated for almost twenty years was postponed once again. Over this time the negotiations were frozen during the era of the leftist governments in South America, but regained speed after the arrival of neoliberal governments to Brazil and Argentina.
Like many other multilateral agreements that have been negotiated in recent years (TPP, TTIP, etc.), the Mercosur-EU FTA covers a large number of areas (not all strictly related to trade) ranging from the exchange of goods to capital movements, phytosanitary measures, electronic commerce and intellectual property (IP). The area of negotiation related to IP is extremely broad, including patents, trademarks, geographical indications and copyright, among other topics.
From TRIPS to TRIPS Plus
In most of the issues related to IP, the Mercosur-EU FTA goes beyond the international obligations imposed on the countries in 1994 with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in the context of the creation of the World Trade Organization. TRIPS established a minimum regulatory floor on IP that forced a large number of countries, including those of the Mercosur, to modify their laws, establishing restrictions on the circulation of knowledge and negatively affecting the public domain. In the field of copyright, TRIPS established a minimum copyright term of the author’s life plus 50 years, meaning that countries like Uruguay, which at that time had a term of only 40 years, was a major change. TRIPS also forced the countries to establish criminal penalties for IP infringements conducted on a commercial scale, as well as to protect software using the same regulatory framework as that applied to literary works. While some of these measures were already established in the Berne Convention and other treaties administered by the World Intellectual Property Organization, TRIPS stipulated economic sanctions for countries that did not comply with the obligations, which resulted in rapid adaptation to a new regulatory framework.
Beginning in the 21st century, the WTO entered a phase of stagnation in which developed countries saw their expectations of new rightsholder-centered regulations thwarted. As a result, the trade-related IP agenda migrated from the WTO to bilateral and multilateral FTAs. Through these instruments, generally negotiated between developed countries and underdeveloped countries—with the powerful developed countries clearly at the wheel—new obligations were introduced that increased the levels of IP restrictions above and beyond what had been required by TRIPS. These new obligations are known as “TRIPS plus.” The TRIPS plus measures include, in the field of copyright, an increase in the term of copyright to the author’s life plus 70 years, penalties for the circumvention of technological protection measures, new exclusive rights for broadcasting organizations over the broadcasts, and other measures that place high barriers to free use and enjoyment of the public domain.
The new Mercosur-EU FTA drafts
The Mercosur-EU FTA, like TPP, TTIP and others of its kind, is being negotiated with a level of secrecy unacceptable for democratic discussion. The drafts have been made public sporadically, but not through a transparent negotiation process, nor with accountability to citizens and true participation of civil society. However, according to what is known so far, it can be said that IP measures included in the agreement fit perfectly in the definition of TRIPS plus. Last September, Creative Commons analyzed a November 2016 draft of the IP chapter. This draft included highly worrying measures, such as the extension of copyright terms, the absence of clauses of limitations and exceptions protecting the rights of users, the mandatory remuneration for performers and producers of phonograms, the introduction of legal sanctions to the circumvention of technological protection measures, and the provision of preventive court orders against “imminent infringements”, among other TRIPS plus measures clearly harmful to the public domain and access to knowledge. The 2016 draft essentially reads like an attempt by the European Union to impose the restrictive elements of its own copyright rules on the Mercosur countries.
A few weeks ago, Greenpeace Netherlands leaked a new draft of the Mercosur-EU FTA, apparently from July 2017, which includes the IP chapter. This new draft of the IP chapter shows the huge number of areas where there is a lack of agreement between Mercosur and the European Union. In the section devoted to copyright, the consolidated text (meaning those areas agreed upon by both parties) is only a small fraction. The rest consists of proposals and counterproposals from both parties. It is easy to see that, while the interest of the European Union is to increase the terms and scope of IP protection, as well as to impose new penalties on infringement, Mercosur countries seek to avoid higher IP standards, incorporate mandatory limitations and exceptions to copyright, and favor the identification and protection of the public domain.
This almost total lack of agreement is understandable if we take into account the international balance between payments and receipts for the use of IP. The World Bank data in this regard are eloquent regarding the enormous existing asymmetry, as a result of which the least developed countries have a huge deficit. The hardening of IP, therefore, would bring as a direct effect the increase in payments for the use of licenses from the least developed to the most developed countries.
Taking into account the history of the negotiations of this type of FTA, it is very possible that most of the disagreements revealed in the July draft will end up going in favor of the European Union text. Given that the Mercosur countries have their fundamental interest in the trade of agricultural products, they are forced to sacrifice their interests in other areas. This is what happened, for example, in the FTA signed between the European Union and Ecuador in November 2016. Just before the negotiations started, Ecuador was discussing a new copyright framework, through which it was proposed to lower the term of copyright from 70 to 50 years after the death of the author. However, the FTA with the European Union included the obligation that the term be set at no less than life plus 70 years, which forced the Ecuadorian government to adopt that term. The example of the FTA between Ecuador and the European Union shows a pattern that is repeated in other FTAs between developed and underdeveloped countries. Strong IP measures are usually accepted by less developed countries, since they are usually seen as a price to pay to obtain advantages in others aspects of the trade negotiation process.
It should be remembered that, due to the economic orientation of the leftist governments of Mercosur in the last decade—before the new rise of neoliberalism—none of the Mercosur countries had adopted TRIPS plus through FTAs. For this reason, unlike other countries where TRIPS plus is already in place, any progress in the TRIPS plus direction is a serious loss for the public domain in the Mercosur countries. Thus, for example, Uruguay would be forced to increase the term of its copyright 20 years, while Argentina would be forced to adopt prohibitions against the circumvention of technological protection measures.
Different perspectives but a shared struggle
At this point, it is necessary to note that public domain activists may have different perspectives according to the region in which they work. From the perspective of the European Union public domain advocates this agreement may be seen as an opportunity for the inclusion of public domain provisions in a standard TRIPS plus FTA. From the European perspective, the text proposed by Mercosur on the importance or a robust public domain and the need to collaborate on the identifying subject matter in the public domain (see Article 4.4 of the IP chapter) would result in a substantive improvement of existing EU copyright law (even though as a Mercosur suggestion it is unlikely to prevail). However, from the perspective of Mercosur public domain advocates, any advance in the TRIPS plus direction (even if it were a little more benign than in other FTAs) would represent huge damage.
Perhaps this difference can be saved if we consider this struggle not as a sum of struggles in each country or region, but as a global struggle to support the public domain. As Luis Gil Abinader argues in a very interesting recent article, the fact of incorporating TRIPS plus (either in its hard version or in its most benign version) in countries that do not have it so far, not only damages access to culture in those individual countries, but it also makes all non-TRIPS plus countries lose bargaining power in multilateral trade, isolating them and pressuring them to finally adopt TRIPS plus, either through bilateral or multilateral agreements, or even in the future through the WTO itself. As a result, a new wave of barriers to the public domain would be consolidated at the global level. Therefore, there is also a tactical interest for public domain advocates of all countries in continuing to strongly oppose TRIPS plus; it’s not yet a lost battle, and it should not be seen that way.
Of course, if the Mercosur-EU FTA is signed and enters into force, it is desirable that it be as least harmful as possible for the public domain, even if it extends the terms and scope of knowledge privatization, and set new penalties. If some new mandatory exceptions to copyright are included in the FTA, the public domain activists of the Mercosur and European Union countries will take advantage of them. But it is necessary to keep in mind that it is never a good deal to exchange highly damaging TRIPS plus measures for other less comprehensive clauses which would benefit the public domain only in a minor fashion.
Within the new industry, news agencies fill the role of the objective gathers of facts. Agencies like DPA, AFP or ANP collect information and make them available to publishing companies who sometimes publish the information as is, but mostly use the information that they get from the agencies as an ingredient for their own reporting. Journalists rely on news agencies to confirm the accuracy of information they use in their reporting.
The heads of 8 major European news agencies have now entered the discussion about the ancillary publishers right for press publishers, via an open letter published in Wednesday’s edition of the French daily Le Monde (paywalled french language version here). They have done so taking the side of those press publishers who advocate for this right. The letter is a frontal attack on online platforms (Facebook and Google in particular) whom they accuse of profiting from hyperlinking to online new publications that are based on information gathered by the news agencies:
[The platforms] offer internet users the work done by others, the news media, by freely publishing hypertext links to their stories.
Publishersright.eu, the lobby platform set up by the EU press and news publishers associations contains a “mythbuster” section that proclaims that the publishers right “is not a link tax”, will “not break the internet”, and will not “be used to block access to publishers] content” (the last one stands in direct contruy7 [adiction to this statement by Prof. Höppner—one of the few academic proponents of the right). In the same vein the European Publishers Council is proclaiming (complete with animated GIF) that “the link is safe” and that the publishers right will lead to “more links”.
Unfortunately for these self appointed “mythbusters” the news agencies seem to have missed the memo and made it clear that the right is indeed an attempt to break the freedom to link. While this could be filed away as a simple communication mistake, the news agencies reveal a much deeper truth: It doesn’t really matter what the proponents of a new right claim with regards to how it will be used. Once a new right exists rights holders are incentivised to make maximum use of the new right. The statements from the news agencies and Prof Höppner make it clear that this will include attempts to charge for linking to and blocking access to content.
Last month the British government published an independent report on Growing the artificial intelligence industry in the UK. The review, conducted by Professor Dame Wendy Hall and Jérôme Pesenti, discusses the potential for how artificial intelligence (AI) “can bring major social and economic benefits to the UK,” highlighting that AI could contribute an additional £630bn to the UK economy by 2035.
The report makes several recommendations that could be explored to support the continued development and adoption of AI in the UK, including improving access to data, training experts, and increasing demand for AI applications. Of particular interest to us are two specific recommendations:
“To improve the availability of data for developing AI systems, Government should ensure that public funding for research explicitly ensures publication of underlying data in machine-readable formats with clear rights information, and open wherever possible.
“To support text and data mining as a standard and essential tool for research, the UK should move towards establishing by default that for published research the right to read is also the right to mine data, where that does not result in products that substitute for the original works. Government should include potential uses of data for AI when assessing how to support for text and data mining.
It is clearly beneficial that governments require that the outputs of publicly funded research and data be made widely available in open technical formats that are consumable by computers. If the data is not made available in machine-readable formats, it will be impossible to efficiently conduct text and data mining across a large corpus of works. It’s also good that the report recommends that the UK push for an environment where “the right to read is the right to mine”—meaning that legal access to the underlying text or data should be sufficient for the user to conduct any further research techniques (such as TDM) and that no additional legal permissions or licenses should be required in order to do so.
Text and Data Mining should not be dependent on (open) licenses.
But even though the recommendations mentioned above are on the whole encouraging, we should consider a few details that could make them even stronger in order to support a permissive legal environment with regard to artificial intelligence applications. For example, the first recommendation advocates that “clear rights information, and open wherever possible” should be attached to publicly funded research and data. This point is reasonable enough: if public sector bodies want to maximize the impact of the research they fund, it is wise to require that clear rights statements (such as permissive Creative Commons licenses or public domain dedications) are appended to these works.
This way, other scientists, AI researchers, and anyone else knows exactly how they may legally reuse the work for purposes related to artificial intelligence research. At the same time, when we view this recommendation in light of the following one, might they be somewhat at odds with each other?
Let me explain. The second recommendation calls for a liberal legal environment where no additional permissions should be required in order to use a work for research techniques related to artificial intelligence. By arguing that the right to read is the right to mine, a researcher wouldn’t need the underlying text or dataset to be made available under an open license, because by definition they would be granted those rights above and beyond whatever a CC (or similar) license says, typically through the adoption of a permissive limitation or exception to copyright.
This is exactly what TDM advocates are pushing in the current review of the EU copyright rules. In the proposal for a Directive on Copyright in the Digital Single Market, the Commission proposed a TDM exception would be available only to research organisations that operate on a not-for-profit basis or pursuant to a public interest mission as recognised by a Member State. The practical effect of this limitation means that the private sector will be excluded from the benefits of the exception. [Sidenote: this is essentially similar to the existing situation in the UK, where the national-level copyright exception for TDM only applies for noncommercial use].
EU copyright reform proposal would limit Text and Data Mining in the EU
Second, the Commission limited the purposes for which the TDM exception would apply. Their original proposal limited the scope of the TDM activity to “purposes of scientific research.” We noted that this constraint would decrease the potential impact of novel TDM uses, such as for journalism-related investigations, market research, or other types of activities not strictly considered “scientific research”.
We recommended that the Directive should be amended to ensure that they achieve the goal of facilitating research and innovation across all parts of society by permitting anyone to engage in text and data mining. This means removing the limitation on research organisations as the sole beneficiaries of the proposed exception. We also urged that the exception should allow text and data mining for any purpose. This means removing the limitation on scientific research as the only purpose allowed for under the proposed exception.
So where does this leave us? We agree with the report that publicly funded research and data should be shared as open data under permissive open licenses (such as CC BY, or even put into the worldwide public domain using a tool like the CC0 Public Domain Dedication). The public sector should do this not because it is legally required in order to conduct text and data mining or other techniques related to artificial intelligence, but more generally in order to ensure an open, communicative, and generative environment where the public gets the access they deserve and need in order to be informed on current scientific research, learn about promising medical innovations, and collaborate to solve problems. And at the same time, we need to continue to advocate for a permissive legal system that protects and expands fundamental user rights, such as a broad copyright exception for text and data mining that applies to any user, for any purpose.
The UK independent report is a step in the right direction because it surfaces important issues and recommendations that could foster a sensible yet progressive environment for artificial intelligence research. But as explained above, there are some details that should be worked out in order to truly support a legal environment that, from a copyright perspective, best enables these interesting and innovative research methods and technologies.