copyright exceptions – Techdirt (original) (raw)

Stories filed under: "copyright exceptions"

As Walled Culture has often noted, the process of framing new copyright laws is tilted against the public in multiple ways. And on the rare occasions when a government makes some mild concession to anyone outside the copyright industry, the latter invariably rolls out its highly-effective lobbying machine to fight against such measures. It’s happening again in the world of AI. A post on the Knowledge Rights 21 site points to:

a U-turn by the British Government in February 2023, abandoning its prior commitment to introduce a broad copyright exception for text and data mining that would not have made an artificial distinction between non-commercial and commercial uses. Given that applied research so often bridges these two, treating them differently risks simply chilling innovative knowledge transfer and public institutions working with the private sector.

Unfortunately, and in the face of significant lobbying from the creative industries (something we see also in Washington, Tokyo and Brussels), the UK government moved away from clarifying language to support the development of AI in the UK.

In an attempt to undo some of the damage caused by the UK government’s retrograde move, a broad range of organizations, including Knowledge Rights 21, Creative Commons, and Wikimedia UK, have issued a public statement calling on the UK government to safeguard AI innovation as it draws up its new code of practice on copyright and AI. The statement points out that copyright is a serious threat to the development of AI in the UK, and that:

Whilst questions have arisen in the past which consider copyright implications in relation to new technologies, this is the first time that such debate risks entirely halting the development of a new technology.

The statement’s key point is as follows:

AI relies on analysing large amounts of data. Large-scale machine learning, in particular, must be trained on vast amounts of data in order to function correctly, safely and without bias. Safety is critical, as highlighted in the [recently agreed] Bletchley Declaration. In order to achieve the necessary scale, AI developers need to be able to use the data they have lawful access to, such as data that is made freely available to view on the open web or to which they already have access to by agreement.

Any restriction on the use of such data or disproportionate legal requirements will negatively impact on the development of AI, not only inhibiting the development of large-scale AI in the UK but exacerbating further pre-existing issues caused by unequal access to data.

The organizations behind the statement note that restrictions imposed by copyright would create barriers to entry and raise costs for new entrants. There would also be serious knock-on effects:

Text and data mining techniques are necessary to analyse large volumes of content, often using AI, to detect patterns and generate insights, without needing to manually read everything. Such analysis is regularly needed across all areas of our society and economy, from healthcare to marketing, climate research to finance.

The statement concludes by making a number of recommendations to the UK government in order to ensure that copyright does not stifle the development of AI in the UK. The key ones concern access to the data sets that are vital for training AI and carrying out text and data mining. The organizations ask that the UK’s Code of Practice:

Clarifies that access to broad and varied data sets that are publicly available online remain available for analysis, including text and data mining, without the need for licensing.

Recognises that even without an explicit commercial text and data mining exception, exceptions and limits on copyright law exist that would permit text and data mining for commercial purposes.

Those are pretty minimal demands, but we can be sure that the copyright industry will fight them tooth and nail. For the companies involved, keeping everything involving copyright under their tight control is far more important than nurturing an exciting new technology with potentially huge benefits for everyone.

Follow me @glynmoody on Mastodon. Originally posted to Walled Culture.

Filed Under: ai, copyright, copyright exceptions, innovation, text and data mining, training, uk

The EU Copyright Directive is arguably the most important recent legislation in the area of intellectual monopolies. It is also a failure, judged purely on its own terms as an initiative to modernize and unify copyright across the European Union. Instead, it includes many backward-looking features that go against the grain of the digital world, which are explored in Walled Culture the book (free digital versions available). It has also fragmented digital copyright law, as EU Member States struggle to implement a badly-drafted and self-contradictory text. For example, France’s national law went even further than the Directive in tilting the playing-field in favor of copyright companies. Germany, by contrast, attempted to produce a more balanced approach, recognizing the rights of ordinary Internet users. The result is a patchwork of different laws across the EU – exactly what the Directive was supposed to eliminate.

A post on the International Federation of Library Associations and Institutions (IFLA) Web site points out that this is a global problem, particularly with regard to copyright exceptions:

while international copyright law is prescriptive about what minimum rights should be guaranteed, it leaves far more flexibility when it comes to exceptions, and is silent around cross-border working. As a result, there are as many sets of copyright exceptions as there are countries in the world.

The impact of this is just the same sort of uncertainty and caution about cross-border working as characterises other drivers of internet fragmentation.

That is, while minimum rights for the copyright industry have been set in stone globally, rights for everyone else are far from guaranteed, and vary greatly in different jurisdictions. This has practical consequences for key institutions, as the IFLA post explains:

Variance in copyright exceptions not only holds back librarians, as well as archivists and museum workers from cooperating across borders, for example in the context of research collaborations or online and distance learning, but can also be a driver of inequality. If researchers are expected to travel to access a unique source or collection, only the wealthiest are likely to be able to do this.

The result is just another example of internet fragmentation, and a particularly serious one in that it most directly affects key wider drivers of sustainability – education, research and cultural participation.

The IFLA post goes on to offer an example of how that fragmentation has been overcome in the past. The Marrakesh VIP Treaty allows countries to bring in exceptions to facilitate the creation of versions of works that could be accessed by the visual impaired, something that copyright law had often prevented. The Marrakesh VIP Treaty, discussed on this blog two years ago, was undoubtedly an important achievement, and did indeed help to reduce fragmentation in this area. However, it is worth noting that it was adopted in June 2013. A detailed history of the Treaty on the Knowledge Ecology International (KEI) site reveals:

In 1981, the governing bodies of WIPO and UNESCO agreed to create a Working Group on Access by the Visually and Auditory Handicapped to Material Reproducing Works Produced by Copyright. This group meeting took place on October 25-27, 1982 in Paris, and produced a report that included model exceptions for national copyright laws. (UNESCO/WIPO/WGH/I/3). An accessible copy of this report is available here.

That is, it took nearly 30 years of on and off negotiations for a treaty to be agreed, a delay largely the result of fierce resistance by the copyright world, which places the preservation of its intellectual monopoly above all else – even social justice and compassion. In a Walled Culture interview, the director of KEI, and one of the leading campaigners for a treaty, James Love, recalled: “publishers did everything you can imagine to derail this [treaty]”. Attempts to resolve fragmentation of digital copyright in the EU Copyright Directive and elsewhere are likely to meet a similarly fierce resistance, and will probably take as long to resolve.

Follow me @glynmoody on Mastodon. Originally published to Walled Culture.

Filed Under: copyright, copyright directive, copyright exceptions, eu, internet fragmentation
Companies: ifla

from the long-overdue-but-good-to-see dept

Although overall the EU Copyright Directive is bad news for the digital world because of things like its need for the use of automated upload filters, it does contain a few glimmers of good sense. For example, it rectifies a failing of the previous EU legislation in this area, the 2001 Infosec Directive. The 2001 law allowed Member States to implement an exception or limitation for the use of copyrighted material “for the purpose of caricature, parody or pastiche”. Because it was vague and optional, this exception was not widely implemented by EU countries.

The EU Copyright Directive addresses that by making it mandatory to allow for caricature, parody, and pastiche uses. However, even this improvement is flawed, since it only applies to online services. Member States still have the option to extend that exception, but once more it is a vague and unsatisfactory situation. An important case in Germany, discussed in depth on the Kluwer Copyright Blog by Susan Bischoff, provides some important insights into what the copyright notion of pastiche now means in the EU context. The same blog has another, more general exploration of the topic.

Bischoff’s post goes into the details of the German case, but reduced to its essentials, a “kitschy” image of a cherry tree by a London-based digital concept artist made a modified appearance in a painting by a Berlin-based German painter. The former claimed copyright infringement had taken place. For the first time, the court applied a new section of German copyright law that permits use of material for the purposes of caricature, parody, and pastiche. It considered whether the use of the cherry tree motif could be considered a pastiche of the original, and found that it was indeed a permitted use. Bischoff’s blog post explains:

The judges conduct a detailed assessment of the painting, analyzing its individual components, their interpretation and collage-like composition, as well as the different levels of detail in the painting technique. The court concludes that the cherry tree is not only a background motif but a collage element. With regard to the necessary interaction, the court finds that this “is to be seen in the fact that a typical kitsch picture, which is supposed to offer the consumer something beautiful and attractive, becomes the content of a collage-like representation, which forces it to be viewed in a different, critical context” as “the viewer of the painting puts herself in the position of an elderly person who […] is looking at a panorama in which the vibrant green in the foreground near this person is replaced all around by a gloomy, unreal-looking scenery”.

It’s great that the German judges conducted such a thoughtful and nuanced analysis, and that they affirmed that this incorporation of an element from another work was a pastiche, and therefore permitted. But it is absurd that it has taken over 20 years to fix this bug in the EU copyright legislation, and that something as natural and creative as pastiche was not regarded as a self-evidently legal way to re-purpose existing copyright material.

Follow me @glynmoody on Mastodon. Originally posted to WalledCulture.

Filed Under: copyright, copyright directive, copyright exceptions, eu, germany, pastiche, user rights
Companies: eu

from the lost-history dept

Roughly a year ago, we wrote about how museums were requesting an exception to the DMCA’s anti-circumvention provisions in order to preserve online games. While the Librarian of Congress has already allowed for exceptions for preserving non-online games, the request led to pushback by the Entertainment Software Association, which indicated preserving online games would be copyright infringement. Nintendo is a member of the ESA and the gaming giant was at the same time going around to ROMs sites all over the internet and either threatening them with legal action or scaring them into shutting down. This happened all while Nintendo also released several retro consoles, essentially cashing in on the nostalgia that the emulation sites had kept alive for the past decade or so.

All of which is to say this: Nintendo is not generally friendly to the idea of preserving Nintendo games via digitization that it does not control itself. Standing in contrast to that is the recent discovery of an otherwise essentially unknown Nintendo game from 30 years ago that, upon discovery, was swiftly digitized for posterity.

When UWC—a NES game that had been hidden from the world for 30 years—was uncovered last week, one of the first orders of business was getting the game off a cartridge and into the digital realm so that it could be properly preserved. The new owner of the game, Stephan Reese, aka Archon 1981, said as much last week, and that job has now been completed thanks to the efforts of the Video Game History Foundation.

Saying “we were more than happy to lend our expertise and digitize the game for its owner”, the VGHF haven’t just ripped the game, but also went and finished it (as in, played to the end, not finished development), uploading gameplay footage to YouTube so we can all see some more of UWC in action.

Were it not for the exceptions that allowed the VGHF to have helped Reese out, the game could quite easily have been lost to history. Perhaps more importantly, if the general posture of companies like Nintendo led someone like Reese to believe the illegality of this wasn’t even worth questioning, the world may never have seen this game at all. And, whatever you think of the importance of gaming to our culture, it cannot be argued that this would have been a cultural loss concerning the history of a popular entertainment medium.

These exceptions to copyright law are very, very important. This is just one of many examples as to why and yet another reminder that the pervasive culture of ownership and restriction carries with it a danger to literally everyone else who is living or will live. That danger is the potential to lose parts of our culture and history.

Filed Under: archives, copyright, copyright exceptions, digitization, lost content, lost games, nes, uwc, video games
Companies: nintendo

from the didn't-know-you-could-do-that dept

A couple of weeks ago, Techdirt wrote about a surprising initiative by the Netherlands to introduce new flexibilities into its copyright law. Given that leadership from the Dutch government, it’s probably no surprise that a few days later, the Dutch Parliament also showed itself in the political vanguard by voting not to ratify ACTA for the time being.

The full text of the Dutch minister’s speech is now available, and it’s well worth reading for its clear analysis of the problem facing European copyright, and its suggested solution:

> The big question, however, is whether copyright law currently provides enough opportunities to allow an effective response to these technological changes and other developments in the future. In my view, this is particularly relevant in the case of the closed list of exceptions to copyright in the European Information Society Directive. These exceptions are designed to allow new products and services to be developed through creative or transformative use of copyrighted work. They also allow copyright to be restricted in the case of work used for educational purposes, in academic research or in news reporting, as well as work used for libraries and archives.

As the minister mentioned in his talk, those exceptions are explored in some depth in a report by Professors Hugenholtz and Senftleben, entitled ‘Fair Use in Europe. In Search of Flexibilities.’ The conclusion gives an idea of just how much scope there is within existing European law to introduce a wide range of copyright exceptions:

> As our analysis has demonstrated, the EU copyright acquis [body of law] leaves considerably more room for flexibilities than its closed list of permitted limitations and exceptions prima facie suggests. In the first place, the enumerated provisions are in many cases categorically worded prototypes rather than precisely circumscribed exceptions, thus leaving the Member States broad margins of implementation, as is confirmed by actual legislative practice in various Member States. In the second place, the EU acquis leaves ample unregulated space with regard to the right of adaptation that has so far remained largely unharmonized. > > A Member State desiring to take full advantage of all policy space available under the Information Society Directive, and thus maximize flexibilities available at the EU level, might achieve this by literal transposition of the Directive’s entire catalogue of exception prototypes into national law. In combination with the [Information Society Directive’s] three-step test, this would effectively lead to a semi-open norm almost as flexible as the fair use rule of the United States. For less ambitious Member States seeking to enhance flexibility while keeping its existing structure of limitations and exceptions largely intact, we recommend exploring the policy space left by distinct exception prototypes.

The ability to add all kinds of flexibilities to copyright law without breaching the Information Society Directive is clearly a real boon for EU governments who want to update their legislation for the digital age. But there is another notable advantage to taking this approach, as the authors note:

> Member States aspiring to introduce flexible copyright norms are advised to take advantage of the policy space that presently exists in EU law, and not wait until initiatives to introduce flexibilities at the EU level materialize — a process that could easily take ten years. In this way, national models can be developed and tested in practice that may serve as a basis for more flexible future law making at EU level.

The hope there seems to be that forward-thinking countries like the Netherlands might be able to set an example for Europe’s future copyright legislation, and move it towards greater flexibility. A good place to start in that respect would be for the European Parliament to emulate the Dutch politicians and to ditch ACTA, one of whose pernicious effects is to limit the freedom of signatories to modify their own national copyright laws.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: copyright, copyright exceptions, eu, fair use, flexibilities, netherlands, research