About the Directive
Overall, the Directive on copyright and related rights in the Digital Single Market (hereinafter: Directive) introduces many positive novelties but at the same time still has many negative implications. Bellow, the most important provisions the legislators of the Member States will have to introduce into national legislations in the process of implementation are analysed.
Articles 3 and 3a (now 3 and 4): Text and data mining
The Directive provides a new mandatory exception for text and data mining. According to this provision users would be allowed to use text and data mining in order to collect data, to which they can legally accede, without the permission of the authors and without paying any special compensation. Text and data mining is a automated process of collection and analysis of big amounts of text and data sources that can provide useful information for study and research purposes. The beneficiaries of this exceptions would be scientific and cultural heritage institutions mining for the purposes of scientific research. The data would be stored for the time needed to provide the verifiability of researches.
Article 3a (now 4) provides for an additional mandatory exception that would allow text and data mining to other subjects as well (for example, journalists, business entities, innovators etc.), but only under the condition that the right holders do not oppose the mining. Data collected through text and data mining can be stored only for as long as that is needed to achieve the purpose of collecting.
Text and data mining was never directly regulated on the EU level (with the exception of Article 5(1) of the InfoSoc Directive setting a mandatory exception for “temporary acts of reproduction”, which arguably includes also some of the acts that are performed in the process of text and data mining). Because of this, researchers were faced with legal uncertainty, whether they can mine and in which form. The mandatory rule will bring legal certainty to at least scientific and cultural heritage institutions and allow them to mine freely through legally accessible formats for the purposes of scientific research. The data will probably be stored for an unlimited period of time.
The right to read is the right to mine, which is why the exception for text and data mining should apply to all the persons in the public and private sector that can mine for all purposes. The exception for text and data mining should be as wide and open as possible because mining through publicly accessible data is of key importance for the development of science and the society as it enables endless possibilities for research and innovation and it also straightens the civil initiative in science and economy.
Users that are not scientific and cultural heritage institutions will have to rely on a much narrower exception that will allow text and data mining only under the condition the right holders do not oppose it. Innovators, journalists and all the others will have to acquire the permission of the right holder in this case, even if they have legal access to the contents through which they mine. They will be allowed to store the data only for as long as that is justified by the (original) purpose for mining, which will prevent the storage of the already collected data and its later use for new purposes. In this case, the data will have to be collected again.
A group of legal, economic and social-science scientists from the leading research center across Europe addressed an open letter to the European Parliament and the Council, in which they present similar views as the ones advocated by the Ministry of Education, Science and Sport of the Republic of Slovenia.
Similar positions were advocated in an open letter from 28 organizations representing universities, technology companies, communication service providers, start-up companies, libraries, scientific institutions, open access publishers, NGOs and journalists.
The legal aspects of the new exception are explained in depth in the report of the Committee on Legal Affairs (JURI).
Communia also wrote about Articles 3 and 3a (now 3 and 4) in the post Can Voss salvage the text and data mining exception.
Article 4 (now 5): Use of works and other subject-matter in the digital and cross-border teaching activities
In many cases, copyrights unnecessarily and unequally limit the use of content in educational practices and force teachers to face the dilemma whether they can use a certain copyright work for educational purposes. The Slovenian Copyright and Related Rights Act currently does not enable many modern educational methods (such as the sharing of content between teachers and pupils through e-mail, collecting teaching materials and sharing such materials on the internet etc.). Since the exceptions for education are not harmonized in the EU, cross-border teaching activities between teachers and pupils are also limited.
Article 4 (now 5) establishes an exception that would enable the free use of copyright works in digital form for the purpose of educational illustration. The provision only enables the use on the premises of an educational establishment or through a secure electronic network accessible only by that establishment. The member states have the possibility to introduce this exception with or without the payment of remuneration to the right holders. They can also avoid the introduction of the exception when easily accessible, yet payable, licenses are offered to educational establishments by right holders (publishers, for example).
A mandatory exception for education as envisaged in Article 4(1) (now 5(1)) will solve some issues faced by teachers and pupils in the EU and will enable the digital use of copyright works for educational purposes when the conditions are met (organized educational process and secure electronic network).
The provision has many deficiencies as it might force schools and other educational establishments to conclude licensing agreements and pay remuneration to authors and other right holders (publishers, for instance) for the use of copyright works in classrooms. Such payable licenses will place a significant financial burden on public and private educational establishments and force them to negotiate with collective organizations and even individual right holders when they are not collectively represented.
Teachers and pupils need an exception for education that will harmonize minimal rights across the EU. These rights should not depend on the existence (or non-existence) of license agreements or on the decision of the right holders who can decide whether and under which conditions they will make the licenses available. In such cases, educational institutions will not be able to rely on the exception. Also, the exception for education should be as wide as possible – it should apply to all non-commercial teaching activities of teachers and pupils as part of the teaching process that can take place in all different environments (digital and non-digital) as well as forms (use of works in all formats, fully or partially, in the original, translated or modified form).
The exception should also benefit other subjects that perform non-commercial teaching activities (libraries, museums, research institutions, providers of distance learning services, non-profit organizations, social companies etc.). The requirement of use within the secure electronic networks of educational establishments will exclude the institutions that cannot afford such networks.
More about this topic on the website Internet is for the people – Education.
Communia led an initiative for an efficient exemption for education and prepared a report on the state and the inadequacy of the licensing system for educational purposes in Europe. On many occasions, it also wrote about the issue of Article 4(2) (now 5(2)) and together with ETUCE and EFEE published joint conclusions regarding the exemption for education. ETUCE as part of the global union for teaches and educators is against the exception for education and against the Directive as a whole.
The European Commission published an official report regarding the legal framework of the EU and the members states regarding copyright and the exemption for education.
Articles 5 in 7 to 9a (now 5 and 8 to 12): Cultural heritage protection
The Directive contains the provision that would enable museums, archives and libraries to provide better services to their users.
A new mandatory exception in Article 5 (now 6) will enable cultural heritage institutions to reproduce (digitalize) works in their collections for the purpose of their preservation.
Articles 7 to 9a (now 8 to 12), on the other hand, will make it easier for cultural heritage institutions to make works from their collections that are not commercially available (the so-called out-of-commerce works) available online. Those institutions will have to acquire a license from collective organizations in order to make the out-of-commerce works available online. In case that licenses for a certain work or type of use will not be available (because a specific collective organization does not exist or is not authorized for the management of certain uses), cultural heritage institutions will be able to invoke the exception for the free use of out-of-commerce works and publish a certain work on their non-profit websites.
Cultural heritage institutions such as museums, archives and libraries could, through processes of digitalization of copyright works, make those works available online and with this enable the general public to access the works from their archives. Because these institutions do not always hold rights over the works in their collections, it is very time-consulting and financially burdensome to clarify copyrights, especially when these works are older and the right holder does not exploit them any longer. This led to the current situation where only a small amount of the copyright works from the 20th century that are stored in European libraries, archives and museums, are available online. Cultural heritage institutions call those works “20th century black hole”.
The Directive combines the licensing system with an exception serving as an alternative mechanism when licenses are not available. The provision will solve the majority of issues cultural heritage institutions face in regards to copyright and the digitalization of their collections.
More about this issue on the website Internet is for the people – Cultural heritage.
The organization Europeana discusses the exception for out-of-commerce works in the following posts: The missing decades: the 20th century black hole in Europeana in A better solution to making out of commerce works available online.
Communia also wrote on the advantages of the Directive for cultural heritage institutions in the post Copyright reform still stalled, but there is some good news for the Public Domain.
Article 10b (now 14): Works in the public domain
The Directive contains an explicit provision for the protection of works in the public domain: faithful reproductions (a photograph of an oil painting, for instance) of works that already are in the public domain (because copyrights already expired, for example) will not be protected by copyright. With this provision the legislator tries to avoid situations where the institutions collecting works (such as museums) would “re-establish” copyright on works in the public domain and with this restrain or limit their use.
Currently, many member states enable museums to claim right over photographic reproductions of works in the public domain with neighbouring rights protecting unoriginal photography. This means that the same photography of an artistic work is protected by copyright in some countries and in others it is in the public domain. Museums as public institutions should focus on making their collections as widely accessible to public as possible and they should not limit the users in using our common cultural heritage. The provision on works in the public domain protects the works that can be freely used by users, also in creating derivative works. This is envisaged in a clear provision that unoriginal reproductions of the works in the public domain cannot be protected by copyright or any related right in the EU.
More about this issue on the website Internet is for the people – Public domain.
Europeana, an EU initiative that enables the access of digitized books, music and artistic works, published the Public Domain Charter.
The advantages of the provision of works in the public domain can also be found in Communia’s post Copyright reform still stalled, but there is some good news for the Public Domain.
Article 11 (now 15): A new related right for press publishers
The Directive introduces a new related right for press publishers, with which the publishers of news and other online publications could require remuneration for the use of content or parts of that content. The new related right would cover all online use of press publications by information society service providers with the exception of individual words or very short extracts.
The provisions does not apply to publications published for scientific and academic purposes (Article 2) and private and non-commercial use of the news by individuals is also excluded. The member states must provide the authors an “appropriate share” of all additional revenues accumulated on the basis of the news. This right lasts for two years after the publication.
The introduction of a new rights for press publishers is an inappropriate measure that will not solve the problems in the publishing industry. This was already proved when similar rights were introduced in Spain and Germany. There, the provision resulted in an additional burden, especially for small internet providers, while the big ones (Google News, for instance) were exempt from any obligation. New unnecessary rights for press publishers will change the power ratio in the favour of big actors in the media market, limit the freedom of expression on the internet and independent journalism and will stimulate the use of unverified sources of information and with this the growth of “fake news”. Also, the provision will establish an additional related right on the content already encompassed by copyright.
The new related right is heavily criticized by academics and the civil society. Granting a new right to publishers without providing any proof that this will help to achieve a certain goal, will set a dangerous precedent. This is why the right of press publishers would have to be completely deleted from the Directive. The current issue of the publishers could not be solved with the introduction of a legal presumption that the press publishers are justified to invoke rights in regards to works on which they already have copyrights and related rights.
More about this issue on the website Internet is for the people – Publishers right and on the website of MEP Julia Reda – Extra Copyright for news sites (“Link tax”).
Libraries associations across Europe drew the attention on the problems Article 11 (now 15) could introduce.
From the very beginning, many distinguished European academics opposed the new related right (open letters on Academics against publishers’ right and The Copyright Directive is falling). The institute Max Planck is also critical towards the new right.
In February, journalists, that at the beginning supported Article 11 (now 15), announced their opposition against the provision. Paragraph 4a (now 5) would enable journalists an appropriate share of the incomes generated by press publishers with the exploitation of the work online. However, this provision is only a lip service as recital 35 (now 59) provides that this provision does not influence contractual agreements between journalists and publishers and does not prejudice the “laws on ownership of rights”. This means that publishers can force journalists to waive in advance in their employment or copyright contracts the right to a fair remuneration from Article 11(4a) (now 15(5)).
Article 13 (now 17): Use of protected content by information society service providers storing and giving access to large amounts of works and other subject-matter uploaded by their users
Article 13 (now 17) of the Directive envisages new obligations for providers of online services that enable the sharing and saving of user-generated content (especially platforms for the sharing of photos and videos, such as YouTube and Facebook, as well as platforms enabling the access to literature or computer programs, such as SciHub in GitHub).
So far, online platforms were, in principle, not liable for copyright infringements committed by their users. According to Article 14 of the E-commerce Directive, the so-called information society service providers cannot be held liable if they are not aware of the infringements and if they, as soon as they become aware, delete or otherwise limit the access to the infringing content. In other words, the platforms can make the works uploaded by their users available, but need to delete such content as soon as they become aware that the content infringes copyrights.
The new Directive provides that platforms will have to acquire licenses from right holders in order to make user-generated content available to the public. Otherwise, they will be held liable for infringements committed by their users who uploaded infringing content (such as a song) on the platform. They will be exempt from liability if they introduce upload filters to prevent copyright infringements.
Some content providers are explicitly excluded from the scope of Article 13 (now 17), namely online encyclopaedia, non-profit scientific and academic repositories, platforms offering open source computer programs etc. (Article 2). Also, filtering obligations are less strict for platforms no older than 3 years with an annual income of 10 million euros and less than 5 million subscribers.
New obligations for online platforms aims to stimulate either the payment of royalties to right holders or the active prevention of copyright infringements, which can technically be achieved with content filtering. Article 13 (now 17) introduces many legal uncertainties that the online platforms could avoid only by filtering and blocking the content uploaded by users. With this, Article 13 (now 17) contradicts the current EU legislation and opposes the case-law of the Court of Justice of the EU prohibiting the general filtering of online content.
General filtering of the content could violate the freedom of speech, one of the fundamental human rights. It could also introduce private censorship upon user-generated content. Technologies for content recognition cannot provide adequate legal assessment whether the use of the copyright work is lawful (for example, on the basis of a legal exception) or unlawful. To avoid possible lawsuits, content providers will delete the content in doubt, even if the use of the content was lawful. Also, the requirements of Article 13 (now 17) will affect all platforms, even those that do not offer content in the form of music. Imposing filtering obligations on platforms will force many of them to change or even cease to exist, which will limit the choice of internet uses in Europe.
Communia also prepared an accurate scheme on Article 13 (now 17).
There were many public initiatives against Article 13 (now 17), such as #SaveYourInternet, reported by Communia in the post More and more experts warn against the dangers of Article 13 upload filters.
A petition against Article 13 (now 17) was signed by 145 organizations on the fields of science, economy, libraries, education etc. The Office of the High Commissioner for Human Rights also warned about the negative consequences of this provision.
The opposition against Article 13 (now 17) is becoming bigger and bigger, even some associations of right holders opposed the latest proposal of this provision (in the audio-visual and sports sector, entertainment industry and music industry).
Articles -14 to 16a (now 18 to 22) : Fair remuneration for creators and performers
The Directive contains certain measures for strengthening the position of the creators in contractual relationships with intermediaries. Article 14 (now 19) imposes to intermediaries the obligation to enable right holders transparency over the exploitation of their works, while Article 15 (now 20) provides a mechanism for the adjustment of contracts between creators and performers on one side and publishers and other acquirers of the rights on the other side in cases when their works end up being much more successful than originally envisioned. Article -14 (now 18) would enable the creators and performers an appropriate and proportional remuneration for the exploitation of their works, including for their online exploitation. According to this provision, lump sum payments can also constitute proportionate remuneration but they should not be the rule. This article is an important mechanism that balances some of the more problematic aspects of the Directive, such as Articles 13 and 11 (now 17 and 15).
Many creators and performers transfer their rights for all kinds of exploitations of their creations and for that receive only a one-time or symbolic payment from publishers and producers. Only a small portion of (successful) creators and performers is able to negotiate on the payment of additional royalties for the exploitation of their works online. The Directive provides that the publishers and producers share part of the profit generated with the use of the work with creators and performers, with which it strives to improve their negotiating position.
Article -14 (now 18) as proposed by the Parliament would improve the negotiating position of the authors who would be able to demand a share of the profits generated by the exploitation of their works (thus also the share generated by royalties, collected on the basis of Article 13 (now 17). During the trilogue, the text was changed to worse for creators such as they now have only the right to an “appropriate and proportionate remuneration” when they license or transfer their exclusive rights for the exploitation of their works. It is explained in the recitals that “lump sum payments can also constitute proportionate remuneration”. However, it is somehow contradictory that it was the purpose of the Parliament to get rid of lump sum payments (upon the initial transfer of the rights) with the introduction of Article -14 (now 18) whose aims was to include the authors in subsequent profits generated with the exploitation of the works. The final text would once again enable the payment of advance lump sums that can be purely symbolic.
More about this issue on the website Internet is for the people – Fair remuneration.
Regarding fair remuneration for creators and performers Communia wrote a post A (real) proposal to better remunarate creators is on the table and the Council wants to kill it.
For the assessment of the provisions of the Directive see also Communia’s website Internet is for the People where the proposal of the Directive before it was finally adopted by the EU legislators (before the articles were renumbered) is analysed.