IMCO Opinion on Copyright in the Digital Single Market: Things are looking better, but the devil is still in the details

As mentioned in our previous blog post on the CULT Opinion, the adoption of the Directive on Copyright in the Digital Single Market (the copyright review) requires several European Parliament (EP) Committees to draft Opinions that will then need to be ‘taken into account’ in the Report by the lead Committee of the EP on this matter, namely the Legal Affairs (JURI) Committee.

The draft Opinion [PDF] on the copyright review from the Internal Market and Consumer Protection (IMCO) Committee was published today. The Rapporteur of the draft Opinion is MEP Catherine Stihler (S&D, UK) and we must say that her proposal goes a long way in re-tipping the balance between the interests of rightholders in this debate and those of the rest of the world, which includes in no particular order all Internet users, SMEs, the education, research and cultural heritage institutions and creators. So just for that, we opted for a joyful dance GIF.

But not all is rosy in this proposal, as copyright is a topic where the devil often lies in the details.

Filtering of user uploaded content (Article 13)

What we like:

  • The IMCO Committee has traditionally always been the place where MEPs are most aware of the positive impact the Ecommerce Directive has brought to the development of the Internet and more generally to the EU and its citizens in general. MEP Stihlers’ draft Opinion reflects this knowledge in a very positive manner by ensuring that the proposed wording of Article 13 does not neuter the Ecommerce Directive (AM28 & 63), and recognizes the fact that users are the ones uploading content on these platforms (AM62) .

  • MEP Stihler seems to be one of the people that noticed that online platforms brought good things to users and creators by ‘allowing for diversity and ease of access to content’ (AM23), something that was not exactly oozing out of the EC proposal. I guess being in a Committee that represents consumers can explain that one is a bit more in touch with the daily reality of European citizens.

  • We are happy to see ‘user representatives’ included in any discussions related to user uploaded content (AM65), as one can only guess how users’ interests would be taken into account if such discussions were left only to private companies.

What worries us:

  • We would have preferred MEP Stihler to have displayed the same courage as she did with the press publishers’ right (Article 11) and to propose an upfront deletion of Article 13 and all of its Recitals. We do welcome the deletion of part of the EC’s proposed language as a step in the right direction (AM25, 26 & 27) but as stated by leading academic copyright experts in their recent open letter [PDF], ‘Article 13 needs radical reform that may not be achievable through amendments within its current structure. We would advise removing the Article from the Proposed Directive, and focusing attention on improving the procedure for “notice and takedown”’.

  • What’s with the licensing and compensation fascination as a general approach to online content (AM24 &63)? Most of the uploaded content on online platforms is done so directly by the rightholder (=my daughter doing a mash up) and with totally no expectation of a compensation. It is therefore important to mention that the copyright protected works that are of potential concern are those that are ‘unauthorized’, i.e. that have been uploaded without the authorization of the rightholder, where such an authorization is required.

  • ‘Fair and balanced’ licensing agreements always give us a fuzzy feeling, much like pictures of pandas, but they honestly seem like difficult criteria to assess knowing the general tension that exists between the stakeholders involved.

Press publishers rights aka ancillary copyright (Article 11)

What we like:

  • The deletion of the provision and its Recitals (AM21, 22, & 61), whilst recognizing the need to ensure the sustainability of the publishing industry (AM20), with a robust justification for this deletion.


What worries us:

  • Nothing: deletion is just what the doctor ordered, and what a substantial part of the academic world has just recently asked for in an open letter [PDF].

Text and Data Mining – TDM (Article 3)

What we like:

  • The extension of the scope of beneficiaries of the TDM exception to ‘any individual or entity, public or private, with lawful access’ but with the end of the sentence generating a worry (see below – AM29).

  • The removal of ‘for the purpose of scientific research’ (AM31) as a requirement to benefit from the TDM exception.

  • The recognition that not only contractual bypasses of exceptions must be prohibited, but also technical protection measures that can as easily impede the use of an exception (AM32). We just regret that this dual prohibition is not enshrined as a general principle applying to all existing and future exceptions and limitations of the EU acquis as we do not see the purpose of crafting ‘ideal’ exceptions if private companies can render them useless through either contractual provisions or technical measures.

What worries us:

  • The loophole regarding the security and integrity measures that can be used by rightholders has actually worsened with MEP Stihler’s proposed amendment to Article 3 (3) (AM33), as no requirements of proportionality, necessity, efficiency, etc., are put in place.

  • The extension of the scope of beneficiaries of the TDM exception to ‘any individual or entity, public or private, with lawful access to mine content’: isn’t legal access to the content the criteria that should be upheld? (AM29)

User Generated Content – UGC (Article 13a new)

What we like:

  • MEP Joulaud surprised us by adding a UGC exception (nothing personal: just that he is in the CULT Committee), and this pleasant surprise is now becoming a habit it seems, with MEP Stihler also putting one on the table (AM66).

  • The exception proposed in this draft Opinion is clearly mandatory, a pre-requisite for any exception that applies to online behaviour.

What worries us:

  • The criteria for a user to benefit from this new exception go beyond the three-step test required by the Bern Convention and are not obvious to interpret (AM66). This is not exactly ideal in terms of legal certainty for users and could lead to very diverging applications across Member States depending on the interpretation given to  ‘the use of the new work is done solely for non-commercial purposes’ (sub b), the inclusion of the source (sub c) and the criteria of ‘substantially’ differentiated from the original work…Looking at this cumulative requirement, I guess my kids posting a meme should still worry me!

Research, education and cultural heritage (Art 4-9)

What we like:

  • The recognition that ‘public-private’ partnerships are part of the research landscape and the need to ensure these are not stifled by commercial/non-commercial type considerations (AM1).

  • The acknowledgment that education can be provided by a variety of organisations, including libraries and cultural heritage institutions (AM4 & 5), that cultural heritage institutions fulfil a variety of general interest missions (AM30 & 37) and that their work needs to be enabled, including where it requires cross-border partnerships(AM9, 11 & 41). It is refreshing, though surprising, to see that MEP Stihler has hence been more conscious of the culture and education dimension of this dossier than her colleague MEP Joulaud, from the CULT Committee!
  • The reminder that according to established copyright principles, compensation mechanisms (such as levies) ‘should be limited to cases where there is a risk of unreasonable prejudice to the legitimate interests of rightsholders’ (AM6 & 41). 

  • The introduction of the e-lending issue faced by libraries, which was put aside as a hot potato by the European Commission under the pretense that a CJEU case was pending (other parts of the EC proposal seem to be less scrupulous in following CJEU case law so why the sudden shyness, one could wonder?) (AM13 & 47)

  • The extension of Article 4 to teaching or scientific research‘ (AM36) and the repetition of the prohibition of contractual bypasses of the exception granted under Article 4 (AM38), 5 (AM44) and 5c (new) (AM47), though oddly without the addition of the prohibition of technical measures, as MEP Stihler rightfully added for TDM.

Further Reading

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

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

In the process of the adoption of the Directive on Copyright in the Digital Single Market (the copyright review), several European Parliament (EP) Committees will draft Opinions that will then need to be ‘taken into account’ in the Report by the lead Committee of the EP on this matter, namely the Legal Affairs (JURI) Committee.

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

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

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

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

Filtering of user uploaded content (Article 13)

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

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

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

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

Press publishers rights aka ancillary copyright (Article 11)

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

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

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

Text and Data Mining – TDM (Article 3)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Education exception for digital (Article 4)

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

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

The so-called Reprobel provision (Article 12)

The originally proposed Article 12 seems aimed at contradicting the judgement of the CJEU in the Reprobel case (C-572/13). The CJEU confirmed that the rationale of the fair compensation requirement is intended to compensate for the harm suffered by right holders, and concluded that publishers are not subject to any harm by, in this case, the reprography and private copying exception. Article 12 aims to reverse this decision by giving a right to all publishers, ‘including those of press publications, books or scientific publications’ to claim a share of the compensation for uses under exceptions.

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

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

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

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

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

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

Obvious, no?

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

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

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

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

This tendency to push the handling of complex issues on the back of private companies (and thus outside the realm of the law) has recently emerged with a vengeance in the European Commission’s (EC) proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market (DSM) [2016/0280(COD) – COM(2016)593/F1] currently under discussion in the European Parliament and in the Council of the EU.

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

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

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

The text proposed by the European Commission

What does this mean in practice?

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


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

·         videos (YouTube, Vimeo, Daily Motion),

·         blogs (Tumblr, WordPress),

·         crowdsourced information (Wikipedia),

·         social media (Facebook, Twitter),

·         documents (DropBox, Google Drive),

·         pictures (Flickr), etc. 


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

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

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

in cooperation with rightholders,


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

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


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

take measures


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

To do what?

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



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

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

Those measures,


such as the use of effective content recognition technologies,

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

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

shall be appropriate and proportionate.



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

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


when relevant,

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

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

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

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

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

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

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

Surely, that is a clear message?

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

Source: EFF – Free speech only as strong as the weakest link –

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

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

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

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

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


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

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

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

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

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

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

More specifically, we focus on two aspects:

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

A. The consultation process

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

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

1. The languages wherein the consultation was made available

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

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

2. The ‘summary’ of the consultation results

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

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

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

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

Consultation responses received

‘Fixcopyright’ campaign






Organisations registered in the EC-EP joint transparency register


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


Total respondents


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

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

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

3. The flagrant hampering of citizen participation

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

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

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

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

B. The blatant disregard of findings from EC commissioned studies

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

Where the proposed TDM exception gets it right

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

Article 3
Text and data mining

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


 The proposal comprises four positive elements:

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

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

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


Presentation by Prof. Lucie Guibault at the FutureTDM Workshop:

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

So what is needed?

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

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

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

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

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

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

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


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

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

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


Caroline De Cock, C4C Coordinator


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

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


More Detailed Overview

Topic Subtopic C4C’s (C4C) Position
Missing elements

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

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

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

In short:

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

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

In short:

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

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

In short:

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

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

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

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

In short:

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

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

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

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

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

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

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


Other resources



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

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



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

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


Other resources:


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

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


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

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

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

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

Well, guess what: we’re at it again.

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

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

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

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

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