Discussions in the European Parliament on the EU copyright reform are taking a new, worrying turn. EU decision-makers should seize on the summer break to reflect on how to put the legislation on a more forward-looking path.
”Winter is coming”. While ‘Game of Thrones’ fans will associate this with the recent launch of the new season, those involved in EU copyright reform discussions are likely to be feeling rather ‘chilly’ in view of recent developments. The original Commission proposal for a Copyright in the Digital Single Market Directive was already highly problematic, but with the unexpected change of leadership of the dossier in the European Parliament last month, our initial concerns have escalated.
New Leadership, New Direction
German Member of the European Parliament (MEP) Axel Voss has replaced former MEP Therese Comodini Cachia as Rapporteur following her election to Parliament in Malta. Despite representing the same political group, Mr. Voss diverges in opinion from her views in the draft Report on all the controversial provisions.
We supported Ms. Comodini for having taken a very balanced and reasonable approach on the upload filter provision (Article 13), the press publishers’ right (Article 11), and the text and data mining exception (Article 3). The proposed amendments by Mr. Voss, however, and the recently adopted joint position by his political group (EPP), are unfortunately a sharp turn in the wrong direction for advancing forward-looking copyright reform.
The fact that the adopted EPP position essentially mirrors that of the European Commission demonstrates a lack of critical thinking and ambition towards the problems posed by the proposal.
It also represents a missed opportunity to go further in truly modernising and harmonising key aspects of the copyright framework. For example, the EPP position explicitly rejects user-empowering tools, such as a mandatory panorama exception across the EU and a user-generated content exception.
Parliamentary Committees Adopt Misguided Amendments
In the meantime, the Legal Affairs (JURI) Committee leading the dossier in Parliament is receiving input for consideration from four other committees; three of which have already adopted their Opinions.
The Internal Market and Consumer Protection (IMCO) was the first Committee to adopt its Opinion, which resulted in a somewhat bittersweet outcome. Concerning the press publishers’ right (Article 11), the Committee unfortunately stuck by the Commission’s proposal.
Minor mitigating amendments were nonetheless adopted, such as a proposal to safeguard referencing systems (e.g. hyperlinks) from falling in the scope of the provision; and the deletion of the retroactive application of Article 11. Yet, the adopted Opinion is generally critical of the role of news aggregators and search engines vis-a-vis press publishers’ bargaining power, and moreover proposes to extend this new neighbouring right to ‘print’ publications.
We agree that securing sustainable funding for a strong free press is essential, but the use of such search and referencing tools has not proven disproportionately harmful to press publisher’s revenue flows since it drives traffic to their websites. The latter had been rightly pointed out by Ms Comodini in her draft Report.
While we continue to believe that Article 13 is best deleted altogether, this is a welcomed development, as Mr Boni ensures in his amendments that the provision and corresponding recitals do not conflict with the intermediary liability exemptions enshrined in the e-Commerce Directive, as well as with the Charter of Fundamental Rights of the EU. Being an associated Committee on Article 13, the IMCO Opinion has added ‘weight’ on this precise point; a strong message which the leading JURI Committee should acknowledge and adopt moving forward.
While the IMCO vote included balanced elements, the most recent Opinions adopted in the Committees on Culture and Education (CULT) and Industry, Research and Energy (ITRE), were a disaster on all fronts, making a bad proposal worse.
Both CULT and ITRE differed in views on the proposal for ancillary copyright (Article 11), but ultimately adopted amendments that broadened the scope of the original proposal to non-digital publications. In an attempt to appease public criticism, CULT adopted several amendments such as lowering the protection of this new right from twenty years to eight, and including additional text on “fair share of the revenue generated going to journalists”.
It also proposed for Article 11 to not to apply for non-commercial use of press publications by individual users, but it is difficult to see how this would work in practice when such users tend to share press snippets via commercial platforms. This adds legal uncertainty rather than mitigate the provision’s impact. Perhaps most shocking was the amendment adopted in ITRE which makes press publishers’ rights also applicable to scientific publications, whereas this committee, representing research interests, should have affirmed its support for open access.
When it comes to Article 13, ITRE was somewhat more benevolent, trying to do away with some of the worst elements of the provision such as the reference to “content recognition technologies”. It nonetheless left the prospect of using measures to block the availability of copyrighted works or “other subject matter”, leaving the latter open to interpretation whether this would constitute some sort of ex-ante filtering.
CULT, on the other hand, took the most radical approach of all committees in support of Article 13, so much so that the legality of its adopted text is put to question. Amongst its amendments is the extension in scope to ‘Information society service providers that store and/or provide to the public access to copyright-protected works or other subject matter uploaded by the users’, essentially banning the storage of legally acquired copyrighted material in the cloud. European cloud storage services would be forced to either install filters to impede uploads or conclude licensing agreements with rightsholders for uploaded content. This definitely does not remove barriers for European entrepreneurship and innovation.
Evidence-Based Policy Making Under Threat
Developments ringing alarm bells are not only taking place within the walls of the European Parliament. The copyright debate in Europe has become so political that certain stakeholders are testing the boundaries of reliable and legitimate policy making.
In Spain, since 2015 an ‘ancillary right’ for press publishers similar to the one proposed under Article 11 has been tried, and has failed. This is evidenced not only by the reported impact it has had on start-ups and small businesses, but also by its strong rejection by one of the largest newspapers in Spain, El Pais.
Nevertheless, the Spanish copyright collection society CEDRO announced in late June this year that it had finalised its first licensing agreement with the online news aggregator Upday.com and claimed it as proof of the success of the system. What’s the catch? Well, Upday.com is owned by Axel Springer, the German publishing giant that is one of the most ardent supporters of the ancillary copyright for press publishers in Germany (and the EU). It appears that publishers that support the ancillary rights idea are paying themselves in an effort to justify this widely discredited proposal.
On a similarly disheartening note, the European Vice President responsible for the Digital Single Market, Andrus Ansip, in a recent statement claimed that upload filtering technology is ‘cheap’. He referred to presentations made by the company Audible Magic, whose filtering solution he says is available for “400, 500 bucks” per month.
Armed with these ‘alternative facts’, VP Ansip tries to counter the arguments we and others have made that mandatory filtering technology on a massive number of platforms, many of them start-ups and SMEs, would severely hamper European innovation and entrepreneurship. However, the actual costs of filtering tools are far higher, and probably prohibitive for start-ups. Ansip’s statement is factually incorrect, and contradicts the Commission’s own Impact Assessment as well as recently published research.
Our Summer Wish-List
So what’s next? In September, LIBE will be the last Committee to vote and adopt its Opinion, which will focus particularly on Article 13. Leading Committee JURI is currently finalising the tabling of compromise amendments and is set to vote in October. The Parliament in principle will vote in plenary in December.
With the Parliament entering its summer break next week, we sincerely hope its members will take this period to reflect upon the evidence laid down on the table by numerous legal experts and academics (some examples here, here, here, and here); and work towards a reaching a consensus incorporating views across the board. As for us, we’ll brush the current gloomy climate aside, and continue to take any opportunity to advocate for genuine forward-looking copyright reform.
Picture credit: Hive Mind
The Commission is expecting European leaders to give strong political support to the DSM strategy, says spokesperson for Digital Single Market Nathalie Vandystadt, signalling that all the actions listed in the initiative have been called upon by a vast majority of Members States and MEPs.
What about the criticism that the strategy is lacking in both grand vision and on practical implementation? This is only the start of a long journey, she replies, and the commission is already working on concrete proposals. We cannot say the strategy is not ambitious enough – It is realistic.
As an understanding of ICT is a requirement in nearly 90% of professional occupations, embedding coding skills in both formal and non formal education should become a priority – especially in Europe where a massive shortage of tech workers is looming
As technology becomes further integrated within our society, it has become increasingly important for young people to understand the world around them. Few stakeholders in employment and learning doubt the importance or relevance of learning programming.
[Tweet “Europe is expected to face a shortfall of over 900,000 technically skilled employees by 2020”]
In the UK alone, it is estimated that there will be a shortage of approximately 249,000 workers for technology based jobs by the same year. The creation of a European Digital Single Market is one of the top 10 priorities of the European Commission.
As an understanding of ICT is a requirement in almost 90% of professional occupations, the lack of skilled experts which Europe is currently experiencing, will hinder the advancement of a hyper-connected single market.
To overcome the the gap, coding skills need to become embedded in both the formal education systems through curriculum development, and in non formal education such as after school clubs. The success of this will depend on a strong collaboration between Government, civil society and industry.
CoderDojo is a global community of after school, free programming clubs for young people. It is focused on giving kids and young people all over the world better access to the magic behind the technology that surrounds us.
CoderDojo clubs (Dojos) run all over the world on a weekly basis, giving young people between the ages of 7 and 17 the opportunity to learn how to develop computer code, websites, apps, programs, games, and to explore creatively with technology.
Young people who attend Dojos also learn complementary skills of logical thinking, problem solving, presentation and communication skills. As of January 2015, there are over 560 active Dojos in 56 countries, 370 of these clubs are spread across 27 European countries.
In England, schools are introducing aspects of computer programming to children as young as five. Estonia has assigned €70,000 to an e-enabled program called Proge Tiger which aims to teach children from 7-19 how to code.
The program offers teachers resources and training as well as supporting their schools financially in order to buy the equipment they need. These initiatives are part of the reason that the English and Estonian governments some of the most proactive institutions in promoting and supporting coding among young people.
A recent survey of 20 EU countries, conducted by the European Schoolnet, delivered encouraging results in relation to the introduction of programming to school curriculums. Twelve of the countries already have integrated coding at a secondary school level while 7 countries plan to do so. However the introduction of coding into curriculums is not enough.
For young people to become truly immersed in coding, afterschool clubs like Dojos are required to facilitate this extended learning. Children attending Dojos are driven by their own motivation, learning at their own pace, exploring and creating technology in a way that interests and excites them.
[Tweet “Acquiring an understanding of computer coding is extremely important within our society…”]
…if we want to create a European Digital Single Market. Without it, the majority of citizens will remain passive consumers and will be at the mercy of programmers and technology giants.
The creation of a European Digital Single Market will bring with it great opportunities, with the European Commission estimating that it could produce up to €250 billion in additional growth and could also counteract rising unemployment rates.
Commissioner Ansip recently wrote in a recent blog on the development of the DSM strategy that, ‘ We should only set out what is realistic, what is achievable and what can be easily understood. This should not become a ‘catch-all’ strategy, in the sense that it promises and talks a lot – but does not contain anything that can be done properly, or has any real impact’.
I would echo his sentiment, but apply it to digital education. For Europeans to develop the necessary skills to succeed in the Digital single market, a combination of supporting of informal learning programs, like CoderDojo, and the implementation of computational thinking courses into formal education systems is required. But most importantly, real tangible support is needed from a range of stakeholders including European institutions, national governments, and industry leaders.
There are many ways to get involved in CoderDojo, if you are intersted in mentoring at a local Dojo please see zen.coderdojo.com and get in touch with the Champion. For more information on starting a club see www.coderdojo.com. Or Get in touch e-mail: [email protected], Newsletter: Sign up, Twitter:[email protected]
photo credits: Crown Copyright -Arron Hoare / www.coderdojo.com
EU governments look pretty keen to scrap plans for more coordination in spectrum licensing across the continent. However, the move may jeopardize future efforts to improve Europe’s mobile networks, with negative impacts on consumers and businesses alike.
It is unclear whether EU member states are going to broker a deal on the Telecoms Single Market package anytime soon. Differences abound on the details of Net Neutrality provisions and plans to end roaming fees featured in the proposed bill.
However, what’s more certain at this stage is that most governments are keen to get away with the package proposals pushing for more coordination in spectrum licensing for wireless broadband.
If confirmed, the move would strike a fatal blow to the very spirit of the legislation.
For in a world increasingly dominated by mobile communications there will be no digital single market without a higher degree of harmonization in spectrum policies.
The expected gains will be paramount to speed up the roll out of 4G networks, bringing huge benefits to consumers and businesses alike. The same goes for the introduction of more flexibility and market-led mechanisms in spectrum usage provided for by the legislative package.
Speaking at a recent GSMA event, the EU new digital single market chief Andrus Ansip urged governments to make up their minds rightfully pointing out that more cooperation on spectrum assignment “is not a technical issue” but would translate into cheaper and higher quality connectivity, as well as new services.
MEPs should also step up their pressure by threatening to block any incoming inter-institutional negotiations on the TSM proposal if member states water down or drop its provisions on spectrum usage. It would be a logical step since the European Parliament in April passed an amended draft of the bill that reinforces its original plans on spectrum harmonization.
The truth here is that auctions for frequencies have long provided an easy source of revenue for governments. This explains their reluctance, also welcome by national regulators, to relinquish powers to a more centralized mechanism of the sort contemplated by TSM package. A single market for wireless communications would be however a far more lucrative bargain for everyone in the long run.
Although the European Commission has pledged to work out new legislation on ‘radiospectrum management’, it would be foolish to give up on the rules put forward by former EU digital chief Neelie Kroes under the scope of the TSM package. In fact any future bill should build up upon them, impulsing greater harmonization and – why not? – even daring to break the great taboo of pan-European auctions.
At this stage a fresh legislative initiative would take a while to be drafted and presented, not to mention adopted. Do not expect anything like that before 2016. Meanwhile, the gap between Europe and other regions (such as the US) in LTE deployments, network speeds, total mobile usage or the rollout of advanced services may get bigger to the detriment of the continent’s economy.
To be sure, a lot is at stake here. Up to the new Commission and the European Parliament to convey this message to their national counterparts.