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C4C is proud to announce that the Dutch association of public libraries (VOB – ‘Vereniging van Openbare Bibliotheken’), represents about 170 member organisations in the Netherlands ranging from public libraries, provincial support organisations to library suppliers, signed on to our Declaration which promotes a copyright framework that fosters creativity, innovation, education, competitiveness and access to culture.

Francien van Bohemen, in charge of the VOB’s public affairs & relations, considers that “copyright needs to be renewed”, because “access to information for people, their personal development and that of society are at stake”. Therefore, the VOB decided to join C4C, “to work together to establish a new framework for copyright because the public library cannot fulfil its legal obligations in society in the digital world with the current copyright framework”.

One example of how public library struggle to fulfil their role in the 21st century due to the copyright framework revolves around e-lending. Unlike paper books, which fall under the public lending right, currently public library’s ability to lend e-books is subject to publishers’ willingness to negotiate licensing agreements. Therefore, in 2013 the VOB raised the question to the District Court of The Hague if e-books should also fall under the public lending right. In September 2014, the District Court decided to lodge a request for a preliminary ruling to the Court of Justice of the European Union, sometimes referred to by us as the ‘Court of Common Sense‘.

The District Court’s main question is around the interpretation of the 2006 Rental and Lending Rights Directive, as it is asking the CJEU if the making available to the public, for a limited period of time, of electronic books by public libraries falls within the scope of the lending right. Mid-June, Advocate General (AG) Maciej Szpunar, issued his Opinion in this case. In short, he takes the view that e-lending can fall within the Directive’s scope.

CJEU AG Szpunar starts from the fact that the Directive’s provisions are actually still those adopted back in 1992(!) (§24). In his view, “the anachronistic character of obsolete legal rules is a common source of interpretative problems, uncertainty and juridical lacunae” (§28). Therefore, he considers that “it is imperative to give legal acts an interpretation which takes into account developments in technology, markets and behaviour and not to fix such acts in the past by adopting too rigid an interpretation“ (§27).

He believes that it is necessary to have a ‘dynamic’ or ‘evolving’ interpretation  of legislation, especially in fields  such as copyright, where technological progress has a profound effect (§28). He thinks that this approach is consistent with the legislator’s intention when adopting EU legislation on copyright, as the Recitals of both the Lending and Rental Rights Directive and the InfoSoc Directive expresses the legislators ‘desire’ to adapt to new technological and economic developments (§29).

In coming to his conclusions, CJEU AG Szpunar takes into account, amongst other things, the observations that:

• “there is no substantial difference between a printed book and an electronic book or between the methods by which they are lent” (§31);
• licensing agreements “are principally of benefit to publishers or other intermediaries in the electronic book trade, while no adequate remuneration is received by authors” (§34), because “in an environment governed solely by the laws of the market, the ability of authors to protect their own interests depends above all on their negotiating power vis-à-vis publishers“, which results in some obtaining satisfactory terms, while others not (§74);
  
• “the current climate (…) governed solely by the laws of the market“, so having e-lending fall under the Directive’s scope would make it possible for authors’ interests to be better protected (§36);
• “libraries, and public libraries especially, do not always have the financial means to procure electronic books, with lending rights, at the high prices demanded by publishers” (§38);
• publishers and intermediaries “either contractually limit the opportunities which libraries have of lending electronic books (…) or they refuse to enter into (…) contractual relations with libraries” (§38);
• “exceptions to copyright must be interpreted strictly”,  as argued by the French Government’s intervention in this case (§46), however the interpretation of exceptions must enable (1) to safeguard its effectiveness and (2) observance of  its purpose (§47);
• several studies show that traditional or electronic lending of books “does not reduce the volume of book sales but may instead increase it by encouraging reading habits” (§69).
  

Although all the above makes perfect sense, we need to call upon the CJEU again to help us cross the copyright minefield laid out by those right holders who struggle to think in the interest of creators and consumers, and who keep holding on to outdated views. Those right holders often misrepresent themselves as speaking on behalf of creators. Luckily in this case two organisations stepped-up on behalf of creators to support the VOB’s viewpoint, namely the Dutch collective management organization for (screen)writers, translators and freelance journalists (Stichting LIRA) and the author’s rights organisation for visual creators in the Netherlands (Stichting Pictoright). The Dutch Publishers Association (NUV – ‘Nederlands Uitgevers Verbond’) also decided to intervene in the case to take-up the defence of their licensing solution.

We hope that the copyright reform, expected for the 2nd half of 2016, will:

1. take a lesson from CJEU AG Szpunar’s Opinion that licensing is not the ‘magical wand’ that some right holders proclaim it to be, and definitely not for creators and consumers; and,
2. brings some relief before this constant battle preventing copyright to enter the 21st century in more unnecessary casualties. Especially for areas such as (public) libraries, and education and research, as we should not forget that these touch upon the fundamentals of our society and impact not only current, but also future generations.

C4C welcomes the VOB, and together we eagerly await the CJEU’s judgment later this year. In the meantime, we see this as the start of a strong collaboration at the European and national level. For more information, please do not hesitate to contact Caroline De Cock, Coordinator of the C4C Coalition, at +32 (474) 840515, or Francien van Bohemen, in charge of the VOB’s public affairs & relations, at bohemen@debibliotheken.nl.

The  copyright debate often feels like a hurdle race, and its seems that the current race to the  presentation of the European Commission’s (EC) copyright reform proposal has been extended along the way from the 110 meters hurdles to the 400 one. While we were expecting to see the finish line before the beloved Brussels summer break, suddenly a new set of obstacles has popped-up, as the EC launched a yet another public consultation on “the role of publishers in the copyright value chain and on the ‘panorama exception’” (deadline: 15 June, 2016). This not only means the race isn’t over yet, but that actually the finish line won’t come in sight before September.

So, what’s this new consultation all about? The questionnaire is split into 2 parts.

Ancillary Copyright

First, it tackles “the role of publishers in the copyright value chain”. In plain English this refers to the so-called neighbouring rights, and more specifically the notion of ‘ancillary copyright’. The latter is a concept that “institutes a copyright fee to be paid by online news aggregators (such as Google News) to publishers for linking their content within their aggregation services” [1], which has been introduced in Germany and Spain, but rejected in countries such as France and Austria.

In both countries these legislative initiatives have been contested for their negative impact, notably on innovative European companies. The Spanish legislation is even more stringent that the German one, as publishers cannot opt out of receiving this fee. The damaging effects notably stem from the fact that the Internet changed the notion of who is a publisher, as now everyone can publish content online, hence exercising their freedom of expression and increasing media pluralism. As a result of this increased creativity and the fact that everyone can be a creator, publications from bloggers and creative commons content falls into the web of ‘ancillary copyright’ when looking at the legal language adopted in Spain, for example.

NERA Economic Consulting depicted the impact of the legislative changes in Spain in the graphic below, in a report for the Spanish Association of Publishers of Periodical Publication.

Who is calling for such a new right, which extends the remit of copyright? It has been vocally requested by several (German and Spanish) press publishers. However, not all publishers are singing from the same hymn sheet and more generally, more and more voices have been questioning the merits of this terrible idea. Amongst them, are:

• several press publishers who oppose such a copyright extension;
• 83 Members of the European Parliament, from six political groups, who co-signed an open letter to the European Commission to urge the EC not to introduce EU-wide ancillary copyright laws or copyright rules around hyperlinks. More precisely, the signatories kindly reminded the EC of the Parliament’s rejection of the notion of ancillary copyright. This initiative was driven by the Digital Agenda Intergroup Steering Committee, namely MEPs Vicky Ford (ECR, UK), Julia Reda (Greens/EFA, DE), Marietje Schaake (ALDE, NL), and Josef Weidenholzer (S&D, AT); and,
• of course, the Copyright 4 Creativity signatories who believe that a European-wide extension of these so-called ‘ancillary copyrights’ initiatives  would be a flagrant disregard of the negative effects it had in Germany and Spain, and who are fearful that copyright extensions, such as these, are causing legal uncertainty for digital innovators and publishers alike, and the European institutions should stop them.

Tonight 6 April, Germany’s digital association Bitkom is organising, together with the State of Hessen, a debate on ‘news publishing and digital innovation’. This is the first debate on the topic  since the launch of the consultation, so C4C is curious to hear what position our German European Commissioner for the Digital Economy and Society, Günther Oettinger, will take.

Want to know more about why we should rebut the idea of ‘ancillary copyright’? C4C signatory IGEL, initiative against an ancillary copyright law , has all the key arguments listed here.

Freedom of Panorama

The 2^nd part of the consultation tries to collect input on the ‘panorama exception’, or as the EC puts it the “use of works, such as works of architecture or sculpture, made to be located permanently in public places”.  In plain English, it’s all about the use of images of public space in a personal or commercial context. To clarify the latter, you need to see ‘commercial’ as a broad concept, when you think of the fact that Wikimedia are considered a commercial outlet. This weeks’ ruling by the Swedish Supreme Court against Wikimedia Sweden illustrates their struggle with copyright legislation and the freedom of panorama.

The issue here is that there is an un-harmonised exception in the EU copyright legislation. In practice this means that Member States have chosen to implement it or not, and if they already did so, they did it in different ways. The result is that people are likely to unknowingly break the law, especially when publishing images  online. So, don’t even think to put up a picture online of the European Parliament building in Brussels or Strasbourg, or of something more fun to share with friends, the Atomium in Brussels or the Eiffel tower at night in Paris. Wikimedia collected more absurdities here.

What should be done?

If you ask us, what the EC should be doing instead, our answer would be increasing the level of harmonisation by making relevant exceptions mandatory. It is indeed undeniable that the current differences among Member States in the implementation of exceptions creates legal uncertainty, resulting in citizens, businesses, researchers, teachers, etc. never being quite sure what is legal and what is illegal under copyright law. In our view, increased harmonization enables all users to (better) understand their rights and obligations across the EU, and we consider all EU users should have the same rights in interacting with culture and knowledge.

[1] http://www.nera.com/publications/archive/2015/impact-of-the-new-article-322-of-the-spanish-intellectual-proper.html

C4C is proud to announce that the Network of European Museum Organisations (NEMO) signed on to our Declaration which promotes a copyright framework that fosters creativity, innovation, education, competitiveness and access to culture.

NEMO was founded in 1992 as an independent network of national museum organisations representing the museum community of the Member States of the Council of Europe. Today, NEMO’s members speak for over 30.000 museums across Europe, and foster European policies that help museums in fulfilling their role as keepers of cultural heritage by promoting their importance to European policy makers.

Julia Pagel, NEMO’s Secretary General, remarks that “copyright impacts on many aspects of museum work”, therefore “museums need to make sure to be part of the discussions about the new legal copyright framework”. Julia believes that “by joining C4C NEMO is among several institutions working towards an adjusted copyright policy, which goes along with the recommendations NEMO gave in its European wide study on museums and copyright”, and she is confident that “C4C will support NEMO in staying up to date with developments in copyright policies on the EU and national level”.

C4C welcomes NEMO and looks forward to a strong collaboration at the European and national level. For more information, please do not hesitate to contact Caroline De Cock, Coordinator of the C4C Coalition, at +32 (474) 840515, or Julia Pagel, NEMO’s  Secretary General, at office@ne-mo.org.

C4C is proud to announce that Creative Commons signed on to our Declaration which promotes a copyright framework that fosters creativity, innovation, education, competitiveness and access to culture.

Creative Commons is a non-profit organization at the center of a high-profile, international movement to promote sharing of creativity and knowledge. It provides the well-known suite of licenses and public domain tools that have become the global standard used by leading companies, institutions and individuals across culture, education, government, science, and more to promote digital collaboration and innovation. Their goal is to help realize the full potential of the Internet, namely universal access to research and education, full participation in culture, in order to drive a new era of development growth, and productivity.

Timothy Vollmer, Creative Commons’ Manager Public Policy, explains that they are “pleased to join likeminded organizations in C4C who are fighting to ensure a balanced EU copyright law that supports creativity, the public interest, and the commons”.

C4C welcomes Creative Commons and looks forward to a strong collaboration at the European and national level. For more information, please do not hesitate to contact Caroline De Cock, Coordinator of the C4C Coalition, at +32 (474) 840515, or Timothy Vollmer at tvol@creativecommons.org.

BRUSSELS, 9 DECEMBER 2015 – “If you have a problem, if no one else can help, and if you can find them, maybe you can hire the A-Team European Commission”.  The European Commission (EC) is coming to our rescue with a plan for a “modern, more European copyright framework”.

They took their time to cook-up a plan, as we originally expected it before the summer-break, then in September, and now, after being leaked, it’s finally here. Perhaps their reasoning was similar to that of Hannibal Smith from the A-Team: “Give me a minute, I’m good. Give me an hour, I’m great. Give me six months, I’m unbeatable”.

So, are we saved? Looking at the Copyright Communication and the Portability Regulation, Copyright 4 Creativity has the following knee-jerk reactions:

C4C Applauds

• The plan: The EC starts on the right foot, by (1) acknowledging that “to be effective, EU copyright rules need to be up-to-date, properly transposed, enforced and understood on the ground” and by (2) defining the right general objective, namely “to increase the level of harmonisation, make relevant exceptions mandatory for Member States to implement and ensure that they function across borders within the EU”. Like Hannibal, we love it when a plan comes together, so let’s see how its being executed.
• Limitations & exceptions: On the limitations and exceptions, we can finally expect some progress from the EC, as they’ll look closer into the limitations and exceptions in the areas below and intend to start putting forward legislative proposals in the 2nd quarter of 2016.
  1. Text and data mining (TDM);
  2. Teaching (illustration for teaching);
  3. Freedom of panorama;
  4. Remote consultation of works;
  5. Preservation of works; and,
  6. Disabled users (the Marrakesh Treaty).
• Text and Data Mining (TDM): From the above list, we would like to specifically highlight the EC’s intentions in the area of TDM. C4C, and several of its signatories, have been pushing hard for the EC to acknowledge that licencing is not THE solution in this area, as the fiasco of ‘Licences for Europe’ demonstrated. So, we are pleased to see that this message resonates in the Communication. There’s no time to lose here, because currently European researchers face a competitive disadvantage, as TDM activities are being moved to locations where legal certainty is ensured and where publishers don’t call-up universities to stop research activities. Facilitating TDM will ensure a level playing field for European researchers (amongst Member States as well as in a global context) and maximise the return on investment of public money, as is evidenced by these short case studies. Let’s hope that the intention behind the rather vague language is to indeed adopt a mandatory harmonized exception.

C4C Regrets

• Limitations & exceptions: Although we applaud the fact the EC intends to work on upgrading some exceptions to make them fit for the 21st century, the feeling still creeps up that real ambition is missing and that more profound reshuffle of exceptions could have been covered that would enable and support more broadly creativity and innovation. It seems like someone came to a meeting with this very short list of exceptions, and that the others just went like Murdock: “Well, that’s great, that’s great, you just do that, that’s great”.
• Contractual bypasses & technical protection measures (TPMs): While we support the EC’s good intentions around the limitations and exceptions, a copyright review can only be considered effective, if the rights granted to users and the exceptions put in place to copyright are not bypassed or neutralised through contractual or technical measures. Here we’re on board with B.A. Baracus: “A good offense is the best defense”.
• Statistics: Also when it comes to statistics, the EC continues to reason like Murdock, “I’m a bird! I’m a plane! I’m a choo-choo train!”, as they keep rehashing flawed figures. C4C already engaged in some myth busting [PDF] around the data [PDF] from Office for the Harmonization of the Internal market (OHIM) and the European Patent Office (EPO), as they produced numbers based on misleading methodologies by defining IPR-intensive in an absurdly broad manner.
• Creators: In the debate creators are like Murdock’s invisible dog “Billy”, the EC pretends to talk about them, but there just not part of the game. The result: the balance keeps tipping into the direction of rightsholders, who are very often not the actual creators. C4C would like to see more attention being paid to the actual creators, and their needs and wishes. The voice of creators unfortunately doesn’t always reach Brussels the way it should, giving the rightsholders a chance to pretend that they’re speaking on their behalf.
  
• Portability: The Portability Regulation will be good for consumers already having access to legal offers, but there will be a de facto exclusion for those consumers from Member States where there’s no offer (yet). The EC still has some work to do to sort out the geo-blocking issues to increase legal offers. C4C also fears that consumers could be confronted with price hikes to access online content services after the rightsholders up the prices during the next licencing negotiations to account for this mandated cross-border accessibility. A point the EC seems to have overlooked. Anyway, we can already hear the rightsholders shout “looks like we’re going to crash and ‘die'”, which won’t happen.
• Ongoing consultations: The EC neglects the fact that it just consulted stakeholders (on the Satellite & Cable Directive), or is even still doing so (on Online Platforms), on some of the issues that are already being earmarked as action points in its Communication. C4C, and other stakeholders, voiced their misgivings about the fact that the EC could at least pretend they’re listening to us. However, it seems they’re having their B.A. Baracus moment, thinking “shut up, fool”.

C4C Opposes

• Limitations & exceptions: The EC believes that “most exceptions do not have effect beyond a given Member State”, a claim we strongly disagree with. The current differences in implementations among Member States in the implementation of exceptions creates legal uncertainty, resulting in citizens never being quite sure what is legal and what is illegal under copyright law. In our view, increased harmonization enables both users and businesses to (better) understand their rights and obligations across the EU, and we consider the all EU citizens should have the same rights in interacting with culture and knowledge.
• Ancillary copyright: We remark that the EC refers to the German and Spanish attempts to reign-in news aggregators, but only sees an issues of fragmentation. This could hint at a European-wide extension of these so-called ‘ancillary copyrights’ initiatives, which would be a flagrant disregard of the negative effects it has had in these Member States and the fact that even press publishers themselves oppose such a copyright extension. Copyright extensions, such as these, are causing legal uncertainty for digital innovators and publishers alike, and the European institutions should stop them.

Still lots of works to be done by the European Commission

The next months will be crucial, as the EC intends to propose more concrete legislative action in the 2nd quarter of 2016. We hope the EC sticks to its plan of increasing the level of harmonisation by making relevant exceptions mandatory.

C4C, and it signatories, will be monitoring the EC’s work closely, and try to contribute constructively to the debate. As B.A. Baracus would say “you’re not going to drug me this time, I’m going to keep my eye on you”.

Still lots of works to be done by us

In our efforts to contribute to the debate, YOU can help us fix copyright! The EC’s all-encompassing and not very clearly defined public consultation on online platforms is still running, and encompasses questions that can be used to highlight that you do not want Internet intermediaries being pushed in the role of ‘voluntary censors’ of the web, that you think licensing terms offered to researchers and many creators by right holders are not always fair, that you consider text and data mining to be crucial for research, and that at the end of the day, you expect your fundamental freedoms as a user to weigh in the balance.

To avoid this consultation only being answered by the ‘usual suspects’, C4C has mobilised a number of its signatories as well as non-signatories to revamp our YouCan.FixCopyright.eu tool, to facilitate the process of responding to the EC consultation. Find out more here, or as ‘Faceman’ would say “man up and get in there“!

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.

The signatories of this open letter urge the European Commission to uphold the better regulation principles, and in particular to ensure that:

1. Official documents, such as the announced Communication “Towards a modern, more European copyright framework”,  are not released before the end of consultations that are relevant to the subject at hand: otherwise, what is the point in consulting stakeholders, when clearly a decision has already been made regardless of their input?
2. The detailed impact assessments that are required prior to the proposal of legislative measures should be published before the publication of the proposals, to allow for a rebuttal time.
3. All EU citizens, associations and businesses should be able participate in Commission consultations and that they are able to respond to any of the questions posed in them. For example, in the Online Platforms Consultation that is currently ongoing, some questions are only open to ‘rightholders’, whilst in some cases an explanation related to a question can only be given if the ‘Yes’ option is selected, i.e. if one agrees with the biased statement proposed.

The first point hinting at the fact that the European Commission is set to adopt its Communication “Towards a modern, more European copyright framework”, which was already leaked thanks to IPKat, on 9 December, while at the same time the EC has spread copyright related questions in various recently closed or even on-going public consultation. This is the case for some of the questions in recently closed public consultation on review of the Satellite and Cable Directive and the on-going public consultation on online intermediaries and platforms that runs until the end of the year.

Looking at the leaked Communication, we believe that the EC sets-out some actions in the document that prejudge the outcomes of these consultations. Therefore, one could wonder if responses from stakeholders are actually valued.

As regards the outreach to the European Parliament, the letter’s signatories believe that the European Parliament must uphold the position it took in the so-called “Reda Report”, and to defend the rights of all EU citizens, associations and businesses to engage in an open and transparent debate, as set out in our asks to the EC. The letter also encourages Members of the European Parliament to reiterate their opposition to the illegitimate introduction of new and controversial copyrights for press publishers, an opposition stressed by many during the Reda report discussion, but which is yet again under fire due to Amendments proposed by a minority of (German) MEPs to the Draft Report on the Digital Single Market that is currently being debated.

The International Music Managers Forum (IMMF), a C4C signatory, addressed an open letter to the European Commission and European Parliament on 21 May on the record label and music publisher deals in the digital market. This letter is a reaction to the reporting by The Verge on a 2011 agreement it obtained between a major record label (Sony Music Entertainment) and a streaming service (Spotify). Please see the IMMF’s website for more information.

The IMMF remarks in its open letter that:

Instead of mystery deals hidden from the artists whose copyrighted creations the deals exploit there should be an obligation for transparency. Digital promises greater transparency than the old physical markets. The artists sign deals with labels and publishers. We don’t just want artists to be paid fairly, we also want them to get the relevant usage data. It is impossible to prove fair remuneration is occurring without transparency. In copyright debates it is important that creators, and their representatives are heard from, labels and publishers are our “partners” but we don’t always have the same interests.