user rights – Techdirt (original) (raw)

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 unfortunately-not dept

The Association of American Publishers, like most industry lobbying groups, has a reputation for jealously guarding industry profit-making, no matter the larger implications of their doing so. In the past, the AAP has advocated for secret copyright treaties designed specifically to protect the publishing industry, getting Google to make its Google Library project far less useful, and has sued the Internet Archive’s digital library program in the middle of the COVID-19 pandemic. Again, the AAP is a lobbying group and we should expect them in some respects to behave like one, but it’s important to tease out what they’re lobbying for and against and whether its interests are shared with the interests of the general public. Spoiler alert: they absolutely are not.

So, when the AAP held its recent annual meeting and devoted a portion of this 90-minute affair to the importance of copyright, that would typically be met with something of a yawn and a hand-wave. And when it got several mediocre persons to also speak at that meeting in part to rail against the omni-present threat of “big tech”, well, most of us probably just kept yawning.

As part of their remarks, Brian Napack, AAP chair and CEO of John Wiley, and Maria Pallante, CEO of AAP, made clear that protecting copyright remains the top priority for the association.

Minnesota Senator Amy Klobuchar voiced her concerns over the power of Big Tech in accepting the AAP’s 2021 Award for Distinguished Public Service. Keynote speaker Don Lemon (CNN host and author of This Is the Fire), urged publishers to publish more authors of color, while closing keynoter Brad Stone focused his remarks on Amazon, the subject of two of his books, The Everything Store and the recently released Amazon Unbound.

If Senator Klobuchar wants to join the likes of Donald Trump in complaining vaguely about “big tech”, well, I guess I’ll just have to somehow manage to keep my eyes dry. The inclusion of divisive cable news commentators is certainly a choice to be made, I suppose, as is the inclusion of a biographer for Amazon and Jeff Bezos who isn’t always super kind to the company or its leader. That Stone’s books can be bought on Amazon is at least a partial rebuttal of all the “big tech” complaining, but I digress.

Instead, what is most notable from this annual meeting is the CEO of the AAP, Maria Pallante, proclaiming to the audience that the association would do everything possible to beat back the “assault” in progress on America’s copyright laws.

To make sure that publishing remains a good business to be in, AAP’s job, Pallante said, “is to ensure that you can compete fairly in the modern marketplace.” Regrettably, she continued, “there are actors who seek to weaken your legal protections in order to advance their business interests, whether that interest is in bloating the fair use doctrine to illogical boundaries or, more blatantly, appropriating and monetizing your works without permission.”

In Pallante’s view, the exclusive rights delineated in the Copyright Act are under assault, as is an effective enforcement framework, and she said the DMCA, which governs how infringing content on websites can be taken down, “is badly in need of updating.” She also lamented the lack of a competitive marketplace in which authors’ works can be discovered and publishers can compete “without unfair control or manipulation from dominant tech giants.”

Think about the claims in that statement. “There are actors that seek to weaken your legal protections in order to advance their business interests” is a hell of a take from the CEO of a lobbying group that literally does that exact thing to the public. More copyright laws that strip away the public’s rights, stricter enforcement with less legal protections for the accused among the public, diminishing the role of fair use: literally all of these things Pallante is advocating for are well-described as an actor seeking to weaken your legal protections to advance its business interests. Pallante is literally the villain she’s complaining about.

As for copyright being “under assault”, well, I can only assume it’s under assault in the same fashion that I’m constantly told that Christmas is under assault, by which I mean it only expands, becomes more arduous and annoying, is omni-present, and is tied strictly to commercial interests.

Pallante goes on to suggest that the AAP’s lawsuit against the Internet Archive’s library platform had better be victorious… or else basically all copyright protections go away.

In a final point about copyright, Pallante said that the lawsuit the association filed a year ago against the Internet Archive for copying 1.3 million scans of books is still in discovery, but said the IA’s activities “are well outside the boundaries of both the law and copyright commerce, and ultimately pose an existential threat to the copyright framework on which authors and publishers rely.”

If you can read that and not burst out laughing, you have a stronger constitution than I do.

Now, if Pallante’s name sounds at all familiar to you, it’s because she previously ran America’s Copyright Office. Now, I will say this much: I will happily take Pallante’s doomsday for copyright claims more seriously than I have in this post if she can tell me what happened to the $11 million that the Copyright Office, under her leadership, managed to spend on a computer system that never materialized, was supposed to cost a tenth of that spend, and was the subject of several lies in the Copyright Office’s reports to Congress.

Otherwise, I’ll just note that copyright law in this country is so laughably bloated that it deserves an assault, but isn’t actually on the receiving end of one.

Filed Under: big tech, copyright, fair use, maria pallante, publishing, user rights
Companies: aap, association of american publishers

from the over-to-you,-CJEU dept

As a recent Techdirt article noted, the European Commission was obliged to issue “guidance” on how to implement the infamous Article 17 upload filters required by the EU’s Copyright Directive. It delayed doing so, evidently hoping that the adviser to the EU’s top court, the Court of Justice of the European Union (CJEU), would release his opinion on Poland’s attempt to get Article 17 struck down before the European Commission revealed its one-sided advice. That little gambit failed when the Advocate General announced that he would publish his opinion after the deadline for the release of the guidance. The European Commission has finally provided its advisory document on Article 17 and, as expected, it contains a real stinker of an idea. The best analysis of what the Commission has done, and why it is so disgraceful comes from Julia Reda and Paul Keller on the Kluwer Copyright Blog. Although Article 17 effectively made upload filters mandatory, it also included some (weak) protections for users, to allow people to upload copyright material for legal uses such as memes, parody, criticism etc. without being blocked. The copyright industry naturally hates any protections for users, and has persuaded the European Commission to eviscerate them:

According to the final guidance, rightholders can easily circumvent the principle that automatic blocking should be limited to manifestly infringing uses by “earmarking” content the “unauthorised online availability of which could cause significant economic harm to them” when requesting the blocking of those works. Uploads that include protected content thus “earmarked” do not benefit from the ex-ante protections for likely legitimate uses. The guidance does not establish any qualitative or quantitative requirements for rightholders to earmark their content. The mechanism is not limited to specific types of works, categories of rightholders, release windows, or any other objective criteria that could limit the application of this loophole.

The requirements that copyright companies must meet are so weak that it is probably inevitable that they will claim most uploads “could cause significant economic harm”, and should therefore be earmarked. Here’s what happens then: before it can be posted online, every earmarked upload requires a “rapid” human review of whether it is infringing or not. Leaving aside the fact that it is very hard for legal judgements to be both “rapid” and correct, there’s also the problem that copyright companies will earmark millions of uploads (just look at DMCA notices), making it infeasible to carry out proper review. But the European Commission also says that if online platforms fail to carry out a human review of everything that is earmarked, and allow some unchecked items to be posted, they will lose their liability protection:

this means that service providers face the risk of losing the liability protections afforded to them by art. 17(4) unless they apply ex-ante human review to all uploads earmarked by rightholders as merely having the potential to “cause significant economic harm”. This imposes a heavy burden on platform operators. Under these conditions rational service providers will have to revert to automatically blocking all uploads containing earmarked content at upload. The scenario described in the guidance is therefore identical to an implementation without safeguards: Platforms have no other choice but to block every upload that contains parts of a work that rightholders have told them is highly valuable.

Thus the already unsatisfactory user rights contained in Article 17 are rendered null and void because of the impossibility of following the European Commission’s new guidance. That’s evidently the result of recent lobbying from the copyright companies, since none of this was present in previous drafts of the guidance. Not content with making obligatory the upload filters that they swore would not be required, copyright maximalists now want to take away what few protections remain for users, thus ensuring that practically all legal uses of copyright material — including memes — are likely to be automatically blocked.

The Kluwer Copyright blog post points out that this approach was not at all necessary. As Techdirt reported a couple of weeks ago, Germany has managed to come up with an implementation of Article 17 that preserves most user rights, even if it is by no means perfect. The European Commission, by contrast, has cravenly given what the copyright industry has demanded, and effectively stripped out those rights. But this cowardly move may backfire. Reda and Keller explain:

the Commission does not provide any justification or rationale why users’ fundamental rights do not apply in situations where rightholders claim that there is the potential for them to suffer significant economic harm. It’s hard to imagine that the CJEU will consider that the version of the guidance published today provides meaningful protection for users’ rights when it has to determine the compliance of the directive with fundamental rights [in the case brought by Poland]. The Commission appears to be acutely aware of this as well and so it has wisely included the following disclaimer in the introductory section of the guidance (emphasis ours):

“The judgment of the Court of Justice of the European Union in the case C-401/192 will have implications for the implementation by the Member States of Article 17 and for the guidance. The guidance may need to be reviewed following that judgment“.

In the end this may turn out to be the most meaningful sentence in the entire guidance.

It would be a fitting punishment for betraying the 450 million citizens the European Commission is supposed to serve, but rarely does, if this final overreach causes upload filters to be thrown out completely.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: article 17, copyright, eu, eu commission, germany, upload filters, user rights

from the promise?-what-promise? dept

When the EU Copyright Directive was being drawn up, one of the main battlegrounds concerned memes. The fear was that the upload filters brought in by the new law would not be able to distinguish between legal use of copyright material for things like memes, quotation, criticism, review, caricature, parody and pastiche, and illegal infringements. Supporters of the Directive insisted that memes and such-like would be allowed, and that it was simply scaremongering to suggest otherwise. When the Directive was passed, BBC News even ran a story with the headline “Memes exempt as EU backs controversial copyright law“. The MEP Mary Honeyball is quoted as saying: “There’s no problem with memes at all. This directive was never intended to stop memes and mashups.”

But just as supporters insisted that upload filters would not be obligatory — and then afterwards changed their story, admitting they were the only way to implement the new law — so people who insisted that memes and parodies would still be allowed are now demanding that they should be banned. Copyright companies were the first to make that shift, and now a group of 576 German artists have sent a letter to the German government and politicians complaining about the proposed implementation of the Copyright Directive in their country (original in German). In particular, they are appalled by:

the introduction of all kinds of exceptions, some of which are so outrageously contrary to European law, that we can only shake our heads: up to 20 seconds of music, remixes, mash-ups, samples etc. — everything should be freely usable, without a license.

In other words, precisely the things that supporters of the EU Copyright Directive promised absolutely would be freely usable, without a license, when experts warned that the new legislation could threaten these legal activities. Now these artists are demanding that the German government ignore all those assurances that user rights would indeed be preserved.

However, as Heise Online reports, not all German artists are so selfish in their desire to take away what few rights ordinary members of the public have in the use of copyright material for memes, remixes and the like. A group of 48 top German artists using social media to great effect, and who together have around 88 million followers on YouTube, Instagram, Twitter, Twitch and TikTok, take a very different view of the German government’s proposed implementation (original in German):

Article 3 paragraph 6 describes the public reproduction of a tiny excerpt of works protected by copyright and parts of works by the user of a service provider, for non-commercial purposes or where insignificant income is involved. In these circumstances, thanks to Article 3 Paragraph 6 it would be legal to use up to 20 seconds of a film, up to 20 seconds of a sound track, up to 1,000 characters of text and a picture of up to 250 kilobytes without having to purchase a license, since the rightsholders are compensated for the usage via the service provider. We content creators expressly support this rule.

This so-called “legalization of memes” shows that the politics of [the German government] is close to how reality operates. What defines our culture is always evolving, also through digitization. Memes have been part of our culture for many years and are finally recognized by this ministerial draft.

The statement from the 48 social media artists also includes a neat encapsulation of why their position is so different from the 576 artists whining about memes and mashups:

we would like to point out that content creators are simultaneously users and owners of copyrights, i.e. [they are both] creatives and companies in the cultural industry.

The 576 artists who wish to deny an Internet user the right to draw on copyright material for memes, parodies, mashups etc. forget that they too draw constantly on the works of others as they create — sometimes explicitly, sometimes more subtly. To cast themselves as some kind of creative priesthood that should be granted special privileges not available to everyone else is not just unfair, but insulting and short-sighted.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: art, article 17, copyright, copyright directive, culture, eu, exceptions, germany, memes, upload filters, user rights

from the what-a-mess dept

France was the most vocal supporter of the EU Copyright Directive’s upload filters provisions (originally known as Article 13, but Article 17 in the final version). Despite promises that the law wouldn’t require a filter, right after the Directive passed (which only happened after the French negotiators strong-armed Germany into a questionable deal), French officials promised that it would be be first in line to “transpose” Article 17 into a new law.

While it wasn’t quite as quick as they initially promised (there was talk of having it ready last summer), France has now proposed to put Article 17 into law in that country and it’s just about as bad as you could possibly imagine. Indeed, the law appears to simply ignore wholesale the already weak requirements that were put into Article 17, promising that the laws would protect user rights. That’s not what France was pushing for it. Instead, it was all in on the copyright maximalism, so user rights — the rights of the public — can apparently be ignored.

… the audacity with which the proposed French law ignores the safeguards included in the EU copyright directive to protect user rights should be baffling even to the most cynical commentator.

As former MEP Julia Reda notes, the whole thing, top to bottom is pretty crazy, and shows how France thinks about copyright law as a method for enriching the entertainment industry, rather than as a tool to benefit the public:

The new draft law on ?audiovisual communication and cultural sovereignty in the digital age? covers a number of different subjects aside from copyright law, including the protection of minors and the regulation of video streaming platforms like Netflix. The title of the proposed law gives a glimpse into the mindset of French legislators, presenting the enforcement of copyright laws in the interest of private entertainment companies as a matter of asserting France?s ?cultural sovereignty?. It frames Article 17 as a means to support the European entertainment industry in its conflicts with American tech companies. Users? interests are at best an afterthought in this struggle for ?cultural sovereignty?.

It will comes as no surprise — even as it is troubling — the French proposal will create massive problems for smaller internet sites should they wish to host any sort of user-generated content:

Despite assertions by supporters of Article 17 that the law is aimed at huge social media companies like YouTube and Facebook, the French proposal still tries to extend the new obligations to as many platforms as possible. The definition included in section 1 of the proposal is mostly identical to the definition included in the EU copyright directive, which has been criticized for being exceedingly vague. No effort is made to narrow down what is meant by unclear terms from the directive such as ?large amounts? of copyrighted content uploaded to a platform. Instead, the French law provides that a decree should define what is considered a large amount.

There is, however, one important change: The definition does not just include platforms that profit directly from user uploads of copyrighted content, but also those that do so indirectly. That could include platforms whose business model is not based on giving access to user uploads of copyrighted content (for example by placing advertisements next to that content), but who nevertheless allow such uploads. One example could be the dating app Tinder, which is based on a freemium business model, where users can pay for extra functionality which gives their dating profiles greater visibility. These profits are clearly not directly derived from giving users access to copyright-protected content, yet without the possibility to upload copyrighted content (pictures), the app clearly would not function, so it could be argued that it derives its profits indirectly from organizing the uploaded pictures.

That bit above is notable because when Julia and others (including us here at Techdirt) raised concerns about how the law might apply to sites like Tinder or others where the content was secondary, we were told that would never happen and the law would clearly not cover such sites. Yet, here we are, and (shocker) the promises we were told turned out to be lies.

Perhaps most incredible is that throughout the negotiations, MEPs tried to put in very weak safeguards here and there to make sure that the worst of what protesters were claiming would be limited. But France just decided to ignore a lot of that and push for what it wanted in the original Directive anyway:

It seems that the French government cherry-picks from the recitals, ignoring the guidance that is supposed to narrow down the definition and only including the parts that widen it. For example, the clarification from the recitals that Article 17 should only apply to platforms that compete with licensed content streaming services for the same audiences (which would clearly exclude platforms like Tinder) is completely missing from the French law.

Also, the French version of the law will require upload filters — breaking another promise made by supporters of the Directive. Indeed, Reda notes that Germany had promised to work with the other EU states to make sure implementation would not require filters. France’s response, apparently, was the French equivalent of “nope.”

The French draft law clarifies that rightsholders should be completely free in deciding whether to give a license to a platform, shutting down any efforts such as those discussed in Germany to avoid upload filters by introducing some kind of mandatory licensing solution. Whenever a rightsholder decides not to offer a platform a license, it will therefore have to use upload filters. This is particularly interesting given that the German government announced that it would try to cooperate with other European countries to try to find a solution that doesn?t rely on upload filters. France, one of the largest EU Member States, is clearly not interested in such a solution.

As for the near total lack of user rights in the French transposition proposal, Reda notes that it does have a section entitled “User Rights,” but after those two words, it’s all downhill:

The only part of this section that?s faithful to the directive is the title. Remember when the European Commission claimed that your memes will be safe? Memes would not be deleted, the Commission argued, because Article 17 makes the exceptions for parody, caricature, pastiche and quotation mandatory and clarifies that Member States have to make sure that users can benefit from these exceptions in practice. It also states that platforms cannot be forced to generally monitor all user uploads (which is necessary for any upload filter) and that legal uploads must not be deleted as a consequence of implementing Article 17.

Well, France ?forgot? to mention all of that in its national proposal. The copyright exceptions under French law stay completely unchanged, although they are notoriously patchy and do not cover all situations that may arise on online platforms, such as quoting from a video. France also completely fails to ensure that users can benefit from these exceptions in practice when they upload something to a platform. Instead of ensuring that platforms do not override existing copyright exceptions in their terms and conditions, as the directive requires, the French proposal simply asks platforms to inform users about the existence of copyright exceptions under national law. The decisive parts of Article 17, which state that platforms must allow users to actually benefit from these exceptions, and that such legal content must not be blocked in the first place, are completely missing.

It?s clear from the creatively named ?user rights? section of the draft law that copyrighted content gets blocked by default and users can only benefit from copyright exceptions if they complain after their content has already been blocked. Of course, getting your reaction gif or live stream unblocked a couple of days after the fact is completely useless, which explains why very few users ever make use of such complaint mechanisms where they exist. Under the French proposal, platforms have to offer a mechanism to deal with user complaints about blocked content (so the procedure is clearly ?block first, ask questions later?).

Oh, and it gets worse. The French proposal makes it even easier for those claiming to be copyright holders to use the law to censor content, ignoring what little protections were baked into the EU Directive:

Rightsholders, unlike what the directive says, do not have to justify their initial requests to block content, but only have to respond once a user challenges the blocking of one of their uploads. During this dispute resolution, the content stays blocked. This opens the door to copyfraud, where companies falsely claim to hold rights in other people?s creations, and the original author has to complain to have their own work unblocked. Although the directive says that all decisions by a platform to block content must be subject to human review, the French proposal only requires this in cases where a user complains after their content has already been blocked. Outrageous mistakes by fully automated upload filters are likely to become a lot more common under this proposal.

To add insult to injury, when users or rightsholders want to complain about the result of the redress mechanism offered by the platform, they are supposed to turn to a new regulator called ARCOM, which is the direct successor of HADOPI, the organization best known for administering the infamous ?three strikes? rule, which could block users from accessing the Internet if they repeatedly violated copyright law. This is hardly a regulator that is known for impartially weighing the competing interests of users and rightsholders.

The French proposal still needs to be voted on, though it appears to have pretty widespread support among French officials. Once it does become law, it will almost certainly be challenged in some form or another with cases that eventually make their way to the EU Court of Justice, which will be in charge of determining if the law meets the standards of the EU Copyright Directive. But that could take years, and CJEU rulings may be more narrowly focused as well. In short, France can do a lot of damage in the meantime.

Of course, what’s most insane is that most of this damage will be to its own citizens and its own creative community who will now be greatly limited by this ridiculous law.

Filed Under: article 13, article 17, copyright, eu, eu copyright directive, filters, france, upload filters, user rights

Disaster In The Making: Article 13 Puts User Rights At A Disadvantage To Corporate Greed

from the don't-let-it-happen dept

Supporters of Article 13 in the EU Copyright Directive love to insist that all of the harms and concerns that many of us raise about how it will impact user rights are wrong, because the text of Article 13 says that user rights won’t be harmed. This is only sort of true. It does say that… but gives no instructions on how to make it a reality. Indeed, abiding by the rest of the law makes it impossible. In other words, it’s the equivalent of a law mandating everyone flies into the Sun, and when some of us point out that we’ll all burn up and die, the legislators tack onto the end of the bill “… and don’t let anyone burn up and die” without any further instruction.

Specifically, in the text, it says things like the following:

The cooperation between online content service providers and rightholders shall not result in the prevention of the availability of works or other subject matter uploaded by users which do not infringe copyright and related rights, including where such works or subject matter are covered by an exception or limitation.

Member States shall ensure that users in all Member States are able to rely on the following existing exceptions and limitations when uploading and making available content generated by users on online content sharing services:

> a) quotation, criticism, review, > b) use for the purpose of caricature, parody or pastiche.

And also they insist that this shouldn’t require mandatory filters, while providing no explanation for how to abide by the law otherwise:

The application of the provisions in this article shall not lead to any general monitoring obligation as defined in Article 15 of Directive 2000/31/EC.

And, perhaps my favorite, the “and don’t let this impact anything it shouldn’t” clause:

This Directive shall in no way affect legitimate uses, such as uses under exceptions and limitations provided for in Union law, and shall not lead to any identification of individual users nor to the processing of their personal data, in accordance with Directive 95/46/EC, Directive 2002/58/EC and the General Data Protection Regulation.

Of course, all of that is nonsense, because before you get to that part in the Directive, you have everything else that clearly requires automated filters. Section 4 of the text says that if you haven’t paid off EVERY SINGLE COPYRIGHT HOLDER, then you’re liable for any infringement “unless” you make:

“best efforts to ensure the unavailability of specific works”

And, if told about certain works:

“made best efforts to prevent their future uploads”

How the hell do you “prevent their future uploads” if you’re not filtering everything uploaded? And, how does an automated system determine if those future uploads are actually parody, or fair dealing, or some other exception. The general response from supporters of Article 13 is a giant shrug. As Communia notes, there is literally no way to abide by the law without filters, and it is literally impossible to comply with the section about protecting user rights:

If you can’t see that full chart, it’s reproduced here as well:

If you look at that full chart, you see something pretty important. The ordering of the obligations here is key, as pointed out by Kristofer Erickson. First up, you need to try to license all works. Second, if you fail to license all works in existence, you need to employ expensive and faulty filters to keep down anything that you’ve received a notice over. Only after all of that are you able to consider user rights.

To be more explicit about this, Article 13 puts user rights at the very end of the line, way past the massive corporate handout the law gives to record labels, movie studios and book publishers. Then, at the very, very end, where it doesn’t even matter, it says “don’t let all the bad stuff that everyone knows will happen actually happen.” But it does not explain how that’s possible, because it’s not. The law has all sorts of problems, but trying to shove in “user rights” as subordinate to the special privileges of a few giant industries is especially disgusting and corrupt.

Filed Under: article 13, corporations, filters, user rights

from the EU-should-look-and-learn dept

Techdirt writes plenty about copyright in the US and EU, and any changes to the respective legislative landscapes. But it’s important to remember that many other countries around the world are also trying to deal with the tension between copyright’s basic aim to prevent copying, and the Internet’s underlying technology that facilitates it. Recently, we covered the copyright reform process in South Africa, where some surprisingly good things have been happening. Now it seems that Singapore may bring in a number of positive changes to its copyright legislation. One of the reasons for that is the very thorough consultative process that was undertaken, explained here by Singapore’s Ministry of Law:

The proposed changes are made, following an extensive three-year review and two rounds of public consultations conducted from August to November 2016 and May to June 2017 respectively. Three public Town Halls and ten engagement sessions with various stakeholder groups, including consumer, industry and trade associations, businesses, intellectual property practitioners and academics were held. Close to 100 formal submissions and more than 280 online feedback forms were received.

The full 70-page report (pdf) spells out the questions asked during that review, the answers received, and the government’s proposals. The Ministry of Law’s press release lists some of the main changes it wants to make. One of the most welcome is a new exception for text and data mining (TDM) for the purpose of analysis:

Today, people who use automated techniques to analyse text, data and other content to generate insights risk infringing copyright as they typically require large scale copying of works without permission. It is proposed that a new exception be established to allow copying of copyrighted materials for the purpose of data analysis, where the user has lawful access to the materials that are copied. This will promote applications of data analytics and big data across a gamut of industries, unlocking new business opportunities, speeding up processes, and reducing costs for all.

Importantly, Singapore’s proposed new TDM exception applies to everyone — including big businesses. That’s unlike the corresponding Article 3 in the EU’s awful Copyright Directive, currently working its way through the legislative process, which imposes an unnecessary restriction that more or less guarantees the European Union will be a backwater in this fast-growing area. An obvious but wise move by Singapore is the proposal for an enhanced copyright exception for educational purposes:

Non-profit schools and their students will be able to use online resources that are accessible without payment, for instruction purposes. This will be in addition to their existing exceptions which generally cover only copying of a portion of a work. The enhancement will facilitate instruction and make it easier for teachers and students to use online materials in classes. For example, teachers and students will be able to use various audio-visual materials (e.g. videos, pictures) found online for their classroom lessons and project presentations. They will also be able to share those materials, or lessons and project presentations which have included those materials, on student learning portals for other schools to view. Online resources that require payment will not be covered by this exception.

Another suggested exception is for non-profit galleries, libraries, archives, and museums (GLAMs) to make copies for exhibition purposes. Also useful for GLAMs is a new limit on the protection given to unpublished works. This will stand at life plus 70 years for literary and artistic works, just as for published versions. GLAMs will be protected from contract override, as is the text and data mining exception. That’s important, because it means that copyright owners cannot nullify the new exceptions by insisting organizations sign contracts that waive them. Individual creators receive new rights too:

the report proposes that creators be given a new right to be attributed as the creator of their work, regardless of whether they still own or have sold the copyright. For example, anyone using a work publicly, such as posting it on the internet, will have to acknowledge the creator of the work. This will accord creators due recognition and allow them to build their reputation over time. Currently, they do not need to be attributed as the creator of their work when others use it.

This is essentially a moral right alongside the usual economic ones. As the Wikipedia page on the subject explains, the degree to which moral rights exist for creators of copyright works varies enormously around the world. In France, for example, moral rights are perpetual and inalienable, whereas in the US they are less to the fore. Singapore’s Ministry of Law also proposes that where rights have not been explicitly signed away in a contract, they remain with the creator. Although that will prevent naive creators being tricked out of their rights, it won’t apply to work created by employees: there, it’s employers who will continue to retain rights. As for enforcing copyright, there is the following:

the report proposes that new enforcement measures be made available to copyright owners to deter retailers and service providers from profiting off providing access to content from unauthorised sources, such as through the sale of set-top boxes that enable access to content from unauthorised sources, also commonly known as grey boxes or illicit streaming devices. The measures, which are absent today, will make clear that acts such as the import and sale of such devices are prohibited.

This is clearly aimed at Kodi boxes, which are currently one of the main targets of the entertainment industry. To its credit, the Ministry of Law’s proposal does include important additional requirements for the measures to apply:

the product can be used to access audio-visual content from an unauthorised source and additionally must be:

designed or made primarily for providing access to such content

advertised as providing access to such content, or

sold as providing access to such content, where the retailer sells a generic device with the understanding that “add-on” services such as the provision of website links, instructions or installation of subscription services will subsequently be provided

At least that makes a clear distinction between basic Kodi boxes, and those specifically built and sold with a view to providing unauthorized access to materials. That understanding of the difference is of a piece with the rest of the legislation, which is unusually intelligent. Other governments could learn from that, and from the overall thrust of the proposals to move Singapore’s copyright law towards a fair use system similar to that of the US — something that is fiercely resisted elsewhere.

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Filed Under: copyright, moral rights, singapore, tdm, text and data mining, user rights

from the and-ways-to-make-them-less-awful-if-we-can't dept

The awful EU Copyright Directive is not done and dusted. As Techdirt reported last month, the European Parliament may have failed to do its duty and protect the EU Internet for the region’s citizens, but the proposed law has not yet passed. Instead, it has entered the so-called “trilogue” discussions. Pirate Party MEP Julia Reda explains:

In this series of closed-door meetings, the European Parliament and the Council (representing the member state governments) hammer out a final text acceptable to both institutions. It’s the last chance to make changes before the Directive gets adopted. Meetings are currently scheduled until Christmas, although whether the process will be concluded by then is up in the air.

A recent decision by the General Court of the European Union has ruled that the European Parliament can no longer deny the public access to trilogue documents (pdf). As a result, Reda has promised to provide updates on what is happening in those hitherto secretive meetings. She just published her report on the second trilogue negotiation, and there’s good and bad news. The good news is that a change of government in Italy has led to that country shifting its stance: it is now against the worst parts of the EU Copyright Directive. An EFF post explains the implications of that important development:

There may now be sufficiently large opposition to the articles [11 and 13] to create a blocking minority if they all vote together, but the new bloc has not settled on a united answer. Other countries are suspicious of Italy’s no-compromise approach. They want to add extra safeguards to the two articles, not kill them entirely. That includes some of the countries that were originally opposed in May, including Germany.

In other words, there is now at least a slim chance that Article 11 and Article 13 could be dropped entirely, or at least improved in terms of the safeguards they contain. Against that, there is some unexpected bad news, explained here by Reda:

Council, on the other hand, has now completely out of the blue proposed a new Article 17a that says that existing exceptions for education, text and data mining or preservation can only be maintained if they don’t contradict the rules of the newly introduced mandatory exceptions. In the case of teaching, this would mean that national teaching exceptions that don’t require limiting access to the educational material by using a “secure electronic environment” would no longer apply!

This is outrageous given that the whole stated purpose of the new mandatory exceptions was to make research and education easier, not to erect new barriers. If as a consequence of the new mandatory teaching exception, teaching activities in some countries that have been legal all along would no longer be legal, then the reform would have spectacularly failed at even its most modest goal of facilitating research and education.

Since this is a completely new proposal, it’s not clear how the European Parliament will respond. As Reda writes, the European Parliament ought to insist that any copyright exception that is legal under existing EU copyright law remains legal under the new Directive, once passed. Otherwise the exercise of “making copyright fit for the digital age” — the supposed justification for the new law — will have been even more of a fiasco than it currently it is.

There are two other pieces of good news. Yet another proposed extension of EU copyright, this time to create a special new form of copyright for sporting events, seems to have zero support among the EU’s Member States, and thus is likely to be dropped. Reda also notes that Belgium, Finland, Germany, the Netherlands, Italy, Estonia and the Czech Republic are in favor of expanding the scope of the proposed copyright exception for text and data mining to include businesses. That’s something that the AI industry in Europe desperately needs if it is to keep up with the US and China in using massive text and data stores to train AI systems.

The important message to take away here is that the EU Copyright Directive is certainly a potential disaster for the Internet in Europe, but it’s not over yet. It’s still worth trying to make the politicians understand how harmful it would be in its present form, and to improve the law before it’s too late. That’s precisely what the EFF is attempting to do with a note that it has sent to every member of the EU bodies negotiating the final text in the trilogue meetings. It has two suggestions, both addressing serious flaws in the current versions. One concerns the fact that there are zero penalties for making false copyright claims that could result in material being filtered by Article 13:

Based on EFF’s decades-long experience with notice-and-takedown regimes in the United States, and private copyright filters such as YouTube’s ContentID, we know that the low evidentiary standards required for copyright complaints, coupled with the lack of consequences for false copyright claims, are a form of moral hazard that results in illegitimate acts of censorship from both knowing and inadvertent false copyright claims.

The EFF goes on to make several sensible proposals for ways to minimize this problem. The other suggestion concerns Article 11, the so-called “link tax”. Here the issue is that the proposed measure is very poorly worded:

The existing Article 11 language does not define when quotation amounts to a use that must be licensed, though proponents have argued that quoting more than a single word requires a license.

Again, the EFF offers concrete suggestions for at least making the law less ambiguous and slightly less harmful. However, as the EFF rightly notes, tinkering with the text of these section is not the right solution:

In closing, we would like to reiterate that the flaws enumerated above are merely those elements of Articles 11 and 13 that are incoherent or not fit for purpose. At root, however, Articles 11 and 13 are bad ideas that have no place in the Directive. Instead of effecting some piecemeal fixes to the most glaring problems in these Articles, the Trilogue take a simpler approach, and cut them from the Directive altogether.

Although that seems a long shot, there is still hope, not least because Italy’s reversal of position on parts of the proposed directive makes the arithmetic of the voting considerably less certain than it seemed before. In particular, it’s still worth contacting the ministries responsible in EU Member States for copyright matters to explain why Articles 11 and 13 need to go if the Internet in the EU is to thrive.

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Filed Under: article 11, article 13, copyright, education, eu, eu copyright directive, italy, link tax, trilogue, upload filters, user rights

South Africa's Proposed Fair Use Right In Copyright Bill Is Surprisingly Good — At The Moment

from the stand-back-for-the-lobbyist-attacks dept

Too often Techdirt writes about changes in copyright law that are only for the benefit of the big publishing and recording companies, and offer little to individual creators or the public. So it makes a pleasant change to be able to report that South Africa’s efforts to update its creaking copyright laws seem, for the moment, to be bucking that trend. Specifically, those drafting the text seem to have listened to the calls for intelligent fair use rights fit for the digital world. As a post on infojustice.org explains, a key aspect of copyright reform is enshrining exceptions that give permission to Internet users to do all the usual online stuff — things like sharing photos on social media, or making and distributing memes. The South African text does a good job in this respect:

A key benefit of the Bill is that its new exceptions are generally framed to be open to all works, uses, and users. Research shows that providing exceptions that are open to purposes, uses, works and users is correlated with both information technology industry growth and to increased production of works of knowledge creation.

The solution adopted for the draft of the new copyright law is a hybrid approach that contains both a set of specific modern exceptions for various purposes, along with an open general exception that can be used to assess any use not specifically authorized:

The key change is the addition of “such as” before the list of purposes covered by the right, making the provision applicable to a use for any purpose, as long as that use is fair to the author.

In order to test whether a use is fair, the standard four factors are to be considered:

(i) the nature of the work in question;

(ii) the amount and substantiality of the part of the work affected by the act in relation to the whole of the work;

(iii) the purpose and character of the use, including whether —

> (aa) such use serves a purpose different from that of the work affected; and

> (bb) it is of a commercial nature or for non-profit research, library or educational purposes; and

(iv) the substitution effect of the act upon the potential market for the work in question.

Crucially, the legislators rejected calls by some to include a fifth factor that would look at whether licenses for the intended use were available. As the infojustice.org post points out, had that factor been included, it would have made it considerably harder to claim fair use. That’s one reason why the copyright world has been pushing so hard for licensing as the solution to everything — whether it’s orphan works, text and data mining, or the EU’s revised copyright directive. That rejection sends an important signal to other politicians looking to update their copyright laws, and makes the South African text particularly welcome, as the infojustice.org post underlines:

We commend its Parliament on both the openness of this process and on the excellent drafting of the proposed fair use clause. We are confident it will become a model for other countries around the world that seek to modernize their copyright laws for the digital age.

However, for that very reason, the fair use proposal is like to come under heavy attack from the copyright companies and their lobbyists. It remains to be seen whether the good things in the present Bill will still be there in the final law.

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Filed Under: copyright, fair use, south africa, user rights

Hollywood Using Trump To Undermine The Internet In NAFTA Talks

from the this-is-bad dept

As you may be aware, the US, Canada and Mexico are “renegotiating NAFTA” for reasons that don’t entirely make sense, but we’ll leave that aside. Either way, opening up that process has created an opportunity for Hollywood to attack the internet, and they’ve rushed right in. And, despite promises to the contrary, it appears that Hollywood may have succeeded in getting the Trump administration’s US Trade Representative to back its dangerous plans.

To fully explain this requires a bit of a history lesson. A few decades back, Hollywood realized that what it couldn’t get Congress to pass, it could force upon the US through “international trade agreements.” Much of the history of what happened is detailed in the excellent 2002 book, Information Feudalism by Peter Drahos and John Braithwaite. The very short version is this: international trade agreements have mostly been negotiated without much fanfare or attention, often in secret, with handshake deals in backrooms. And since “trade agreements” are about industry and commerce, trade negotiators often spend most of their time listening to industry representatives to figure out what they want, rather than looking at what’s best for everyone as a whole.

The legacy entertainment middlemen (very cleverly!) realized this long before many others did, and realized that if they could make copyright a “trade” issue, they could continually ratchet up the protectionist parts of copyright law. The plan involves a few clever components. First, find a few countries where they can convince local legislatures to pass ever more draconian copyright laws. Second, put pressure on trade negotiators to put similar provisions into trade agreements. Third, whine about countries (including the US) “failing to live up to the obligations of our international trade agreements” and forcing everyone to ratchet up their copyright laws to “comply.” Wash, rinse, repeat.

This is actually how the DMCA itself became law in the US (which is ironic as you’ll see in a moment). Hollywood tried to pass a DMCA-like law in the US in the mid-1990s and it failed. So, as the main architect of this plan publicly admitted a few years ago, they did “an end-run around Congress,” ran to Geneva, and got a new trade agreement — the WIPO Copyright Treaty — passed. And then they scurried right back to Congress, and said to meet the obligations of the WIPO Copyright Treaty, we needed the DMCA.

Since then, Hollywood has pushed for draconian copyright requirements in basically every trade agreement, and the USTR was only too happy to oblige. Ridiculously, the USTR, while pushing ever more draconian copyright law around the globe through trade agreements, has flatly refused to also include fair use or equivalent “safety valves” to keep the law from being abused. Of course, as we’ve discussed for years, these “safety valves” — generally called “limitations and exceptions” — are actually fundamental user rights. In short: the USTR has pushed for rights for big corporations, while refusing to include the necessary rights for the public. That’s a dangerous combination.

That brings us to the ongoing NAFTA renegotiation. Hollywood has been whining about the DMCA’s safe harbors quite a bit in the past few years (yes, the same safe harbors that are from the DMCA that it forced the US to pass via international trade agreements). So far, however, heavy lobbying by the RIAA and MPAA to do away with the DMCA’s safe harbors has failed to convince Congress (in part because Congress has seen through this game and, in part, because Congress still remembers what happened with its attempt to undermine the internet through copyright law with SOPA).

But, hey, with the reopening of NAFTA, Hollywood saw an opportunity, and has pushed for language that will undermine the DMCA’s safe harbors and fair use — things they can’t get through Congress alone. Unfortunately, the latest reports are that the USTR has agreed to support this move and, even though it’s been shown that more balanced copyright promotes trade, the US is now officially putting more draconian copyright on the agenda — a move that risks undermining the entire internet, not to mention a major backlash from internet users as well.

Needless to say, this is bad. Some in Congress are speaking up on this, but it’s falling along the traditional lines. Senator Ron Wyden has made it clear that he’s “deeply concerned” that the Trump administration is willing “to undermine the internet as a platform for speech, innovation and US jobs” with the NAFTA renegotiation. On the flip side, you have Orrin Hatch — a Senator so closely associated with giving the legacy entertainment industry everything it’s ever wanted, that he’s given the nickname “Senator Fido” (as in “lapdog”) in Rob Reid’s comic novel about the music industry. Hatch has spoken up in support of Hollywood, saying that while it’s fine to reopen the DMCA’s safe harbors, there should be no mention of fair use or any other user rights in these negotiations.

At this point, it appears that Canada is left pushing back on the US’s crazy Hollywood-inspired demands. Of course, Canada’s suggestions aren’t all wonderful either, but at least it’s pushing for a more balanced approach — one that actually recognizes the rights of the public and the importance of protecting free speech, while the USTR (pushed by Hollywood) seems to have decided to throw that right out the window.

Obviously, there are so many other things going on these days, that it’s easy to miss the background of “NAFTA 2.0” negotiations. But at this point, it appears that Trump’s USTR — at the urging of Hollywood — is trying to use these negotiations to do real damage to free speech and innovation online. Taking away the DMCA’s safe harbors and refusing to include important protections like fair use in any copyright language should be seen as a non-starter. As we’ve argued for years, copyright is best left out of trade agreements altogether, but if it does need to be in there, giving Hollywood it’s wishlist plan to destroy the internet shouldn’t be the USTR’s top priority.

Filed Under: copyright, dmca, fair use, international obligations, nafta, safe harbors, user rights, ustr