Copyright reform: Restoring the facade of a decrepit building

Originally published at: https://edri.org/copyright-reform-restoring-the-facadeof-a-decrepit-building/

“The Special Rapporteur also proposes to expand copyright exceptions and limitations to empower new creativity, enhance rewards to authors, increase educational opportunities, preserve space for non-commercial culture and promote inclusion and access to cultural works.”

These recommendations come from the 2014 report on Copyright policy and the right to science and culture, from the UN Special Rapporteur in the field of cultural rights, Farida Shaheed.

On 9 December 2015, the European Commission presented its Communication on a new framework for a “modern, more European copyright”. The Communication focuses on access to content across the EU, adapting some exceptions, attempting to improve the market, and enforcing certain aspects of copyright.

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Unfortunately, however, the Commission has lost an important opportunity to launch a real reform of the broken and outdated EU copyright framework. Its Communication lacks the ambition to challenge the powerful lobbying from investors and rights-holders, and make copyright rules truly fit for the 21st century – for the benefit of all. After admitting that the “fragmentation of copyright rules in the EU is particularly visible in the areas of exceptions”, the Commission seems to be committed to not to do anything about it. By focusing only on the “low-hanging fruit” (exceptions for education and research, freedom of panorama, geo-blocking…), the Commissioner for Digital Economy and Society Günther Oettinger and Vice-President of the EU Commission Andrus Ansip are presenting a public relations campaign on the “changes” for the Digital Single Market, rather than a powerful policy document that deals with the challenges which need to be addressed.

The oldest of the norms governing copyright in the EU, the so-called InfoSoc Directive (Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society), was passed before the existence of YouTube, WordPress and Facebook. Despite the challenges and proposals mentioned in the Commission’s copyright consultation in 2014 and in the European Parliament report on the implementation of the InfoSoc Directive, the Commission failed to take them into consideration in its Communication.

Among the missing aspects that the Commission seems to be avoiding is the need to harmonise the system of exceptions and limitations fully and to make it more flexible, as United Nations (UN) Rapporteur Farida Shaheed suggested in her report. Under current EU copyright law, the exceptions and limitations listed in the InfoSoc Directive must, by law, comply with the strict interpretation of the Berne Convention’s three-step test. Therefore, there is no justification of not making all exceptions and limitations mandatory since they comply with international law, and there is no undue loss on the part of the rights-holder.

Finally, the Communication has also failed to step up firmly against the circumvention of legislators’ decisions. The Commission needs to state clear for once and for all that when democratic decisions have been made to grant flexibilities to copyright, technology companies need to abide by the law. However, this is exactly the opposite of what happens today. Companies such as Google (via its Content ID tool) allow the automatic deletion of content that is perfectly legal under EU law, while digital restriction technologies prevent private copying, even where this has been permitted by legislators.

This issue of enforcement is also one of the topics included in the ongoing public consultation on platforms, for which EDRi prepared an answering guide and a submission tool. It will also be tackled during the consultation on the enforcement of so-called Intellectual Property Rights (IPR) that the Commission launched on 9 December. Citizens now have the opportunity to raise their voice and provide a counterweight to arguments based on, for example, the flawed statistics prepared by the Office for the Harmonization of the Internal market (OHIM) and the European Patent Office (EPO) which have recently been myth-busted by the Copyright for Creativity Coalition (C4C). EDRi encourages everyone to answer these two consultations, to make citizens’ and civil society’s voices heard.

European Commission Communication: Towards a modern, more European copyright framework (09.12.2015)
http://ec.europa.eu/newsroom/dae/document.cfm?action=display&doc_id=12526

EDRi tool to respond to the EC Consultation on Platforms (08.12.2015)
https://edri.org/platformsconsultationtool/

EDRi: EDRi summary report of responses to the copyright consultation (30.07.2014)
https://edri.org/summary-report-responses-copyright-consultation/

European Commission launches consultation on IPR enforcement (09.12.2015)
http://ec.europa.eu/growth/tools-databases/newsroom/cf/itemdetail.cfm?item_id=8580

YouTube’s Content ID (C)ensorship Problem Illustrated (02.03.2010)
https://www.eff.org/deeplinks/2010/03/youtubes-content-id-c-ensorship-problem

C4C: Copyright Myths and Facts
http://copyright4creativity.eu/myths-facts/

(Contribution by: Diego Naranjo, EDRi)

From copywrong to copyright?

(Originally published as an ENDitorial at EDRi gram 13.11, 3 June 2015: https://edri.org/enditorial-copywrong-copyright/)

Picture by Stacey: https://www.flickr.com/photos/geekgirlunveiled/4818412527/ CC license CC BY-ND 2.0

Picture by Stacey: https://www.flickr.com/photos/geekgirlunveiled/4818412527/
CC license CC BY-ND 2.0

“I’ve got two 12-year-old criminals in my kitchen and that can’t be right”

(Jonathan Worth, professional photographer)

The first round of debates surrounding the copyright reform in the European Parliament are reaching their last stages. Pavel Svoboda’s report on Intellectual Property Right (IPR) enforcement was published on 19 May. The report contains a mixture of negative and positive elements which need to be taken into consideration.

Among the negative aspects, we find simplistic statements, for example that IPR infringements discourage growth (Recital D). In reality, the situation is far more nuanced. For example, while the slow adaptation of the music industry to the digital environment has driven a lot of infringements, the market has adapted. Income from concerts is, in fact, growing in the last years. The omnipresent mantras of “follow the money” and “commercial scale” are now happily together in the same paragraph (paragraph 3), still without a clear definition of what these concepts imply. Nobody has sought to define “follow the money” while even the European Commission has said that its 9-year-old definition of “commercial scale” is probably inadequate.

Then, all sprinkled through the Report, there is positive commentary to the generally lamentable work of the Observatory on IPR infringements. Taking into consideration the numerous flaws of much of the output of the Observatory, the gratuitous fawning and, even worse, the calls to use its work to build upon it a new “Intellectual Property” legal framework, seems misplaced and ill-informed to say the least. There is also a mention of the “lack of awareness” of the young generation of the importance of IPR infringements, referring to a study which does not actually say that. It also seems to ignore the results of the copyright consultation where thousands of users called for a Intellectual Property (IP) framework adapted to the 21st century. Finally, the call for “cooperation” of the main Internet stakeholders, which sounds too much like the same old call to privatised law enforcement and the undefined call to “follow the money”.

Among the positive elements, the Report presents calls for balances between fundamental rights and privatised law enforcement (paragraph 10), although it is not clear what this call actually means. There is also the support for attractive licit offers to combat unauthorised use of content (paragraph 37) and for a “comprehensive legal framework to combat IPR infringement adapted to the online environment, with full regard for fundamental rights and freedoms, fair trials, proportionality and data protection” (paragraph 57). Finally, the Report asks for measures “guaranteeing a balanced approach representing the interests of all stakeholders involved, and, in particular, of consumers and their right of access to content” (paragraph 58).

The Plenary of the European Parliament will vote on the Report in the week beginning 7 June.

Julia Reda’s Report on the implementation of the so-called InfoSoc Directive (one of the foundations of EU Copyright law), on the other hand, has been delayed and is now going to be voted in the European Parliament Committee on Legal Affairs (JURI) on 16 June. The recently launched copywrongs.eu website contains a good summary of concrete proposals on the harmonisation of exceptions and limitations and for a modernised EU Copyright framework. This new framework should be one where the vast majority of citizens are not considered as offenders of intellectual property rights for doing things that seem (and are) perfectly normal, such as private copying or re-using copyrighted material for parody purposes. The copywrongs site also offers a free user-friendly tool developed by EDRi observer La Quadrature du Net to call Members of European Parliament (MEPs) to let them know your position on the debate.

Given the immense disproportion between rightsholders’ lobbyists and civil society advocates, this tool will help to amplify citizens’ voice. Since there are only a few days before the vote, the time is to get informed via our handbook on copyright and via copywrongs.eu and to take action now for a modernised EU copyright framework!

Copywrongs.eu
https://copywrongs.eu/

EDRi’s document pool on the copyright reform
https://edri.org/copyright-reform-docpool/

Summary report of the responses to the copyright public consultation (30.06.2014)
https://edri.org/summary-report-responses-copyright-consultation/

Economists say P2P file-sharing fuels art (18.06.2009)
http://www.theregister.co.uk/2009/06/18/harvard_working_paper_weak_copyright_protections_benefit_society/

Copyright in the age of the internet (EP video)
http://europarltv.europa.eu/en/player.aspx?pid=97a32df5-0d5f-435b-b573-a49f00a8f175

EDRi paper: Copyright – challenges of the digital era
https://edri.org/wp-content/uploads/2013/10/paper07_web_20130202.pdf

C4C Copyright Manifesto
http://copyright4creativity.eu/wp-content/uploads/2015/01/C4C-Copyright-Manifesto-20150119.pdf

(Contribution by Diego Naranjo, EDRi)