Announcing The Techdirt Greenhouse Salon: The Battle For Copyright Reform

from the join-us dept

Several years ago, we hosted a series of really fun events called the Techdirt Greenhouse, which involved getting a lot of smart people together and actively brainstorming on a variety of topics. We’ve been wanting to bring back the Greenhouse events for a while now, and we’re finally going to do so with a new series of evening "Greenhouse Salons” hosted by our Copia Institute. Today we're announcing the very first of these new Greenhouse Salons, The Battle For Copyright Reform. As you know, there are ongoing efforts to reform copyright around the globe, with a proposal leaked for the EU and one expected shortly in the US.

We're more than a bit concerned about the direction copyright reform may be moving in, especially after the leaked European draft, and thus this Greenhouse Salon will be a gathering to not just discuss issues related to copyright reform, but to actively strategize on how best to both respond to the efforts that are currently underway, and take a much more long-term view on how to really reform copyright in a much more useful way -- one that isn't anti-public and anti-innovation, but which recognizes that there are ways to build policies that align the interests of content creators, the public and innovators together. The event, in partnership with Automattic (creators of Wordpress) and sponsored by Pinterest, will be held on September 12th at 6pm in San Francisco. It's what we consider a working event, where everyone will be expected to participate in discussion groups. The event is invite only (and we've already invited a bunch of great people to take part), but we're now opening it up for others to request an invite as well. We'll do our best to accommodate requests for invites, while maintaining our goal of keeping the overall attendance at a manageable number to ensure that the group can actually function and accomplish things, and to involve people who have something productive to contribute to the overall discussion.

If you're interested, please fill out the form to request an invite. We'll be having more Greenhouse Salons on other topics (and probably in other locations) in future months, so stay tuned...

Filed Under: copyright, copyright reform, greenhouse, greenhouse salon, techdirt

Leaked EU Copyright Proposal A Complete Mess: Want To Tax Google To Prop Up Failing Publishers

from the that's-not-the-role-of-copyright dept

Well, here we go again with the bad EU copyright proposals. Just a few days ago, Mozilla actually launched a petition to call on the EU to update its copyright laws for the 21st century, to make it "so we can tinker, create, share, and learn on the internet." Apparently the EU's answer to this is "Fuck You!"

According to a leaked draft of the EU Commission's plan to "modernize" copyright, the plan really seems focused on coming up with new ways to tax successful internet companies, like Google, to prop up other companies and industries that have failed to adapt. Apparently, the EU Commission thinks that copyright should be a tool to punish innovation and to reward those who have refused to innovate.

The leaked draft talks repeatedly about this silly idea of a "value gap." Just a few weeks ago we discussed why the "value gap" is a misleading talking point. It's being used by companies that didn't innovate to try to guarantee a business model, with that model being "have the government force successful companies to subsidize us, because we didn't adapt to the current market." And this draft is full of that kind of thinking.

The draft also continues to weigh "the impact" of various proposals on different stake holders. For example, it notes whether different proposals will have a "positive, neutral, or negative" impact on rightsholders, internet services, consumers and "fundamental rights." While it's nice that they include the "fundamental rights" (and the public -- who, it should be noted, are more than just "consumers") it feels like they're trying to set up proposals again that are sort of "balancing" all of these interests, rather than finding the one that maximizes overall utility. In fact, it's quite troubling that they seem to think that anything that directly expands copyright automatically benefits "rightsholders." We've seen how that's not true at all. Greater freedom to remix, reuse and build on the works of others allow everyday people to become creators themselves more easily. And saddling internet platforms also harms many, many content creators who are only able to create, publicize, distribute, connect and monetize because of these new platforms. But the draft doesn't seem to take much of that into account -- or sort of hand-waves it away.

Even the way the draft describes "problems" show that it's biased at looking for ways to prop up old industries:

In particular intervention at EU level is expected, because of its scale, to strengthen publishers bargaining powers in a more effective way than it has happened under national measures such as the "ancillary rights" adopted in DE and ES, where major online service providers either closed down their news aggregation services (ES) or concluded free licences for the use of publishers' content (DE) which did not generate any remuneration for publishers so far. Moreover the related right granted to press publishers under this option would be different from the ES law insofar as it would be an exclusive right and not an unwaivable compensation: this would leave news publishers a greater margin for manoeuvre to negotiate different types of agreements with service providers and is therefore expected to be more effective for them in the long run (notably as it will allow press publishers to develop new business models in a flexible way).

Basically, so much is looking at how can we prop up newspaper businesses by basically forcing Google to pay them to link to them. Even more ridiculously, the report says that basically pushing Google to pay to link to news will "benefit consumers" because it will mean more "high quality" news. That seems like a dubious assumption.

Consumers reap considerable benefits from news aggregators and social media news providers. At the same time they also benefit from high quality newspaper content feeding these channels of consumption. By fostering the production of high quality news content, this option is expected to have a positive impact on consumers. Better market conditions for the news publishing industry could give rise to the development of innovative offers for the digital distribution of news content, with larger catalogues and more choice. Digital subscription of newspapers and magazines are expected to be further developed, which will be particularly beneficial to consumers given the decline of print products.

That seems like the EU Commission is only thinking a single step out, and not any further about how business models may develop. Doing this will also lock in Google as the dominant player and not allow newer, better, more innovative startups to enter the market without first having to raise significant amounts of capital. The report notes that consumer groups disagree with the assumption that consumers will benefit under such a plan, but the entirety of the Commissions reason for this is "well, this is different from the Spanish law that made Google News shut down."

All in all, this looks like (unfortunately typical for Europe) plan written by bureaucrats looking to basically minimize the number of people who are upset, rather than creating the best actual overall plan. As a result, the proposals look to be a mess, that will almost certainly harm innovation and creativity in Europe.

Filed Under: ancillary copyright, copyright, copyright reform, eu, google tax, publishers

Uruguay Politicians Give Unanimous Preliminary Approval To Copyright Reform, Publishers Fight It Anyway

from the well,-of-course-they-do dept

All around the world, people are pushing to get copyright updated to reflect the digital world we live in. And all around the world, copyright industries are fighting tooth and nail to stop them. Here's an example from Uruguay, where something good could be about to happen on the copyright front, as a post on the Creative Commons blog explains:

Uruguay is in the process of updating its copyright law, and in April a bill was preliminarily approved in the Senate. The law introduces changes that would benefit students, librarians, researchers, and the general public by legalizing commonplace digital practices, adding orphan works exceptions, and removing criminal penalties for minor copyright infringements. University students were the original proponents of the limitations and exceptions bill.

Of course, all that was totally unacceptable to the local publishing industry, which got together and wrote a document outlining what it would like to see instead. By an amazing coincidence, its suggestions would neuter most of the changes that might benefit the public by:

Eliminating the exception that permits copying for personal use

Retaining the possibility for criminal penalties for minor infringements

Drastically limiting the scope of exceptions and limitations for education

Adding severe restrictions on libraries

Enacting restrictions on freedom of panorama

The Creative Commons post has the details, and summarizes:

Their document recommends scaling back most of the user-friendly provisions in the bill, cuts other items that were drafted by the Council of Copyright in the Ministry of Education and Culture -- and which already received unanimous political support by all parties in the Senate.

That last point about the unanimous cross-party political support shows that the copyright maximalists care as little about democracy as they do about the public. All they want is to retain the privileges they have enjoyed for hundreds of years, and to hell with anyone else.

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

Filed Under: copyright, copyright reform, uruguay

Techdirt Reading List: Copyfight: The Global Politics Of Digital Copyright Reform

from the more-copyright-reform dept

We're back again with another in our weekly reading list posts of books we think our community will find interesting and thought provoking. Once again, buying the book via the Amazon links in this story also helps support Techdirt.

We've been doing a bit of a theme these last few weeks talking about books related to copyright law and copyright reform, having done books on the moral panics used to push bad copyright reform, as well as suggestions on how to do copyright reform right. Last week, we had a good look at the issues of how copyright law and the 1st Amendment don't mix, which included ideas on how to fix that.

This week, the recommendation is for Copyfight: The Global Politics of Digital Copyright Reform -- a more academic take on exactly what the subtitle notes, by Blayne Haggart (who, it should be noted, has written guest posts for us on the "fact-free world of copyright policymaking," and the possibilities for an end of maximalist copyright law.

Copyfight, which came out two years ago, is an in-depth look at how copyright reform has happened in the past, focusing on the now infamous 1996 WIPO Treaty, which was the basis for the DMCA. As we've explained in the past, copyright interests tried to pass the DMCA in the US earlier, but failed to gain Congressional support. So the lobbyists and the politicians packed up for Geneva, and used the backroom negotiations process of trade agreements to create a treaty that required the DMCA, then headed back to the US in 1998 and got the DMCA passed on the basis of "we needed to do it to 'comply with our international obligations'." It was a sleazy process, but to this day, some of those who did it are happy to admit that's how they got what they wanted.

Copyfight's main focus, though, is in looking at how WIPO was then implemented in three different countries -- the US, Canada and Mexico, and what the different implementations mean from a policy perspective. It also tries to put some of this historical analysis into the context of the modern digital copyright fights, talking about how online activism may be shaping the debate as well. It's a good overall read and highly recommended (though not the ebook version, which for reasons that make no sense, costs about 3 times the paper version).

Filed Under: blayne haggart, copyfight, copyright, copyright reform, dmca, reading list, techdirt reading list, wipo

Rep. Goodlatte Promises 'Consensus' Copyright Reform Proposals Soon

from the this-should-be-interesting dept

Congress has mostly stayed away from any attempt at copyright reform since the great SOPA blackout of 2012, afraid that anything will set off the public again. However, in 2013, Copyright Register Maria Pallante called on Congress to create the "next great copyright act" designed to update copyright for the 21st century. The House Judiciary Committee has been holding hearings and roundtables every few months since then, some of which have been more encouraging than others.

Copyright law is clearly broken and a true fix for the 21st century would be welcome. But what are the chances that Congress would actually do a good job, rather than make it worse? Well, we may soon find out. Yesterday, Rep. Bob Goodlatte put out a statement and a video claiming that they're finally ready to start releasing some proposals: Goodlatte lists out a bunch of things that have been discussed, and then notes that he'll be focused initially on releasing proposals where he believes there is some "consensus":

In the weeks ahead, we will identify areas where there is a likelihood of potential consensus and circulate outlines of potential reforms in those areas. Then we will convene stakeholders for further work on these potential reforms.

And you have my personal commitment that as the review shifts to more focused work on potential reforms, the process will be transparent and the Committee will continue to ensure that all interested parties have the opportunity to weigh in on issues of concern to them. Our copyright system deserves no less.

The way that's put obviously sounds better than the way things have been done in the past, where the legacy industry basically wrote the bills for Congress, and our elected officials just put their names on it. But I'm still concerned with the framing of this whole thing. Goodlatte's talk continues to falsely suggest that copyright policy is about copyright holders vs. the public:

...it is critical that Congress understand the overall impact of any changes in copyright law before proceeding with formally introduced legislation. It is also clear that neither a solely copyright owner focused bill, nor a copyright user focused bill, could be enacted by Congress today, nor should they be.

But, again, as we've been explaining for years, thinking of copyright in such zero sum terms is the wrong way to go about it. A proper copyright system, focused on "promoting the progress of science" shouldn't put the best interests of either party at risk. These interests should be aligned. The public benefit of copyright should be to encourage creators to create and for that content to spread and be experienced. We should be looking at what kinds of policies best lead to that outcome. Instead, because of past history and the mental framework that the Judiciary Committee has had since the beginning, it seems that they want to set this up as a fight between Hollywood (representing "copyright holders") and the tech industry (which they're using as a weak and misleading proxy for "the public.") The actual public is not involved. Nor are many actual creators.

There are, of course, cynical political reasons for doing this. Congress learned years ago that if you want to get a big pile of donations, the best thing to do is to hint at a bill that would put two large industry in conflict with one another. Then both feel compelled to fund politicians campaign warchests.

But that leads to bad policy. It leads to policy based on the interests of funders and industry, rather than the public. Again, the purpose of copyright law is to benefit the public by creating incentives for content creators. The interests of content creators and the public should (and absolutely could) be aligned in all of this. Let's create systems that encourage the creation and distribution of content, without treating the public as criminals.

Let's hope that's actually what Goodlatte and the Judiciary Committee have in mind, but from the framing he has used so far, I'm concerned that what comes out of this is likely to be something else.

Filed Under: bob goodlatte, copyright, copyright reform, house judiciary committee, sopa

Head Of House Judiciary Committee Dines With MPAA, Joins Their Fundraiser, Following LA Copyright Hearing

from the soft-corruption-at-work dept

In the past, we've discussed the idea of "soft corruption" a few times -- which in some ways can be more nefarious than out and out corruption. In soft corruption, it's not what most people normally think of as corruption (i.e., cash for getting something from politicians), but merely something that presents the very strong appearance of influence buying. It involves situations where even if everything being done is legal and done for the right intentions, the mere appearance of the conflict reduces the public's trust in government. Earlier this week, we wrote about how the House Judiciary Committee, which claims to be working on a major copyright reform effort, held "listening tours" in both Silicon Valley and Los Angeles (unfortunately, reinforcing the idea that copyright is a "Hollywood v. Silicon Valley" concept). As we noted, however, we were pleasantly surprised at the Silicon Valley hearing, that the discussion seemed really positive. It was (a) focused on actual ideas that could be implemented and (b) the members of the Judiciary Committee really seemed open to lots of good ideas.

From reports I've heard, the LA listening tour was also pretty good, minus one silly, but expected, flareup involving someone accusing Google of being a criminal pirate enterprise. However, in a move that seems fairly sketchy, following the hearing, the Committee members who were there had dinner with the MPAA. And, in Politico's latest report it notes that the head of the Judiciary Committee, Rep. Bob Goodlatte, hung around an extra day in Southern California to put his name on and attend a fundraiser for his colleague Rep. Kevin McCarthy.... put on by the MPAA:

Rep. Bob Goodlatte didn't just bring lawmakers to Silicon Valley and Los Angeles this week to talk with tech companies and content creators about the future of copyright. The House Judiciary Committee chief also offered his name and support to a fundraiser for House Majority Leader Kevin McCarthy and the National Republican Congressional Committee, hosted last night by the MPAA, according to an invite snagged by MT.

The event, a cocktail reception and dinner at the BOA Steakhouse in West Hollywood, asked for checks to be made out to the McCarthy Victory Fund, a joint fundraising committee with the NRCC, according to a Goodlatte aide. But the Judiciary chairman, who was slated to attend, extended the help a day after he and other lawmakers visited Hollywood to talk tech policy and later dined with the MPAA. A spokeswoman for the congressman added it was Goodlatte's only fundraising event while out in California

And, yes, if he had done a similar thing up in Northern California with tech folks, it would be equally concerning. I know the cynical folks who read this won't accept this, but I actually do believe that Goodlatte is trying to come up with a reasonable plan for copyright reform that actually takes all the issues into account. While I don't always agree with him, I've found him to be a lot more open to understanding these issues than some of his colleagues. But... that said... this is the kind of thing that most people will see and reasonably think that it undermines Goodlatte's trustworthiness on issues like this. It certainly gives off the appearance of a pretty strong conflict of interest, and makes people more cynical and less trustworthy of the government that is supposed to represent them.

Of course, much of the real underlying problem here is the state of money in politics today, and the fact that, for most Congressional Reps. fundraising is nearly 50% of their job responsibilities. So, if you're going to Hollywood, why not tack on a fundraiser? But, again, what that does, in the public's eyes, is make the entire process appear corrupt in some fashion. Thus, even if everyone's goals and intentions are aboveboard, the American public has significantly less trust in the entire system.

Filed Under: bob goodlatte, congress, copyright, copyright reform, corruption, crony capitalism, fundraising, house judiciary committee, soft corruption
Companies: mpaa

House Judiciary Committee Hears Concerns From Silicon Valley About Copyright Law

from the now-what? dept

Yesterday afternoon, for about two and a half hours, members of the House Judiciary Committee took part in what they're calling they're "Copyright Review Listening Tour" for a roundtable in Silicon Valley. There were 20 participants in the roundtable, mostly made up of people who work in and around the technology industry. Today, the Representatives will host a similar roundtable down in LA, which will be mostly made up of entertainment industry folks. Unfortunately, this aspect of the tour seems to reinforce the silly idea that copyright law is a battle between "Silicon Valley" vs. "Hollywood" -- and that what's good for one is bad for the other.

Reps. Blake Farenthold, Darrell Issa, Jerry Nadler. Photo by Parker Higgins, EFF, CC BY
That whole line of argument is ridiculous and counterproductive -- as a few of the panelists at yesterday's hearing made clear. Good copyright law enables new platforms to rise up and that provides more opportunities for content creators to create, to distribute, to build a fan base and to monetize. Bad copyright law recreates a gatekeeper-based system where only the elite can choose what content is allowed to reach the public. In short, the innovations that are being created are actually helping content creators and are living up to the Constitutional requirements for copyright: that it "promote the progress." But it's frequently not copyright that's doing that job -- it's the technology innovations.

Panelists Timothy Vollmer, Brianna Schofield, Zoe Keating, Michael Keller & Brewster Kahle. Photo by Parker Higgins, EFF, CC BY
And the key thing that we heard yesterday was how copyright was actually counterproductive in that it has frequently blocked innovative services from existing or from providing the best services for content creators. There were a few key themes that became clear throughout the hearing:

1. Statutory damages are an absolute disaster and create massive chilling effects for free speech and innovation. Multiple panelists discussed how much of a problem statutory damages are for innovation. They highlighted how frequently they are abused to stifle innovation and to create fear among people for doing something most people think should be legal. The disconnect between the actual "infringement" and the punishment is a major problem. Somewhat surprisingly (in a good way!), the members from Congress seemed quite interested and concerned about the problems of statutory damages. Rep. Jerry Nadler, who historically has basically supported the RIAA position on all copyright-related issues, surprised me by agreeing that statutory damages seem like a real problem, and noting that basically all other torts require a showing of actual damages. Rep. Darrell Issa admitted that it was unlikely Congress would be able to dump statutory damages "in the next decade," but asked for ideas on ways to "bend" the system in a more reasonable way. The panelists made a few suggestions -- including a personal use exemption and a "good faith" defense for sites (and users, I guess) where they don't believe what they're doing is infringing. Such a defense, if successful, would take away statutory damages, and only allow actual damages. A potentially better alternative was requiring the copyright holder to prove "bad faith" to move from actual damages to statutory damages. That Congress even seems open to this is a huge step in the right direction.
2. Fair use is important and shouldn't be cut back. Lots of good discussions from panelists about the importance of fair use and how bad decisions create real chilling effects on innovation. When the one "Hollywood" person on the panel, CreativeFuture's Ruth Vitale, made a slightly nonsensical argument that increasing fair use was bad for creators, other panelists quickly pointed out that's not even close to true, and tons of content creators regularly rely on fair use to create content. Rep. Nadler (again, long a supporter of expanding copyright law) noted that he believes fair use needs to be made "less dangerous" for people to embrace it. That was really encouraging.
3. The problem of bogus DMCA takedowns is massive and there needs to be real punishment. Brianna Schofield, from Berkeley, pointed to research showing that companies that actually review DMCA takedowns are now rejecting between 40 and 60% of them as bogus takedowns, designed to censor content, rather than legitimate copyright claims. And Alex Feerst (and some others) suggested that what's really needed is real teeth to Section 512(f) of the DMCA, which is supposed to punish those who send bogus DMCA takedowns, but, as we've seen, is entirely toothless based on the way courts currently interpret it. Rep. Issa actually asked if there should be criminal punishment for bogus takedowns, which I think took people by surprise, and probably goes too far.
4. The DMCA's 1201 anti-circumvention provisions are a disaster and the idea that people need to re-apply every three years just to fix products they own -- because of copyright law -- is messed up. Again, it was nice to see that the Representatives really seemed to get this fact and seemed interested in looking at ways to fix Section 1201 -- such that you couldn't use digital locks and DRM for anti-competitive purposes or to control other aspects of your business.
5. Orphan works are a problem and the Copyright Office's solution is a disaster. Multiple panelists pointed out that the orphan works problem remains a big, big problem -- and they're concerned that the most recent suggestion from the Copyright Office (which requires "registration" to use an orphan work) is an absolutely terrible solution. People suggested going back to the previous Copyright Office proposal from a few years ago, that just required a diligent search for the copyright owner -- but that plan died when photographers freaked out after misreading the proposal. The Internet Archive's Brewster Kahle even brought up the suggestion of fixing the orphan works problem by returning to a system of "formalities" in which a copyright holder is required to register to get the copyright (rather than automatically getting it) and then would need to renew the copyright every five years with another payment. As Kahle pointed out, this would also help solve some of the concerns Congress has over funding the Copyright Office. This is a suggestion that many have made over the years that had been mostly ignored -- but at least a few on the panel seemed interested in the idea, with Rep. Issa rightly pointing out that the patent office already works this way.
6. Modernizing the Copyright Office: The panelists went back to this issue multiple times, in part because it's hot in DC right now, though much of the tech industry has basically avoided the discussion. Both the Copyright Office and the Library of Congress (which is where the Copyright Office is housed) are antiquated, with terrible and broken technology. Hollywood is strongly pushing to take the Copyright Office out of the Library of Congress and set it up as its own independent agency to try to give it more power (and because they don't like that the Library of Congress actually takes into account things like what's good for the public...). Ruth Vitale kept arguing for a separate Copyright Office, but when pressed on why, the only thing she could come up with was that the Library of Congress needs more room to store all of its books. Really. Michael Keller, the University Librarian at Stanford, rightly pointed out that pulling the Copyright Office out of the Library of Congress wouldn't fix anything -- it would just create more "chaos" and leave us with two dysfunctional organizations, rather than one.

There were some other points made, but overall, it was surprisingly encouraging in that most of the hearing didn't focus on red herrings and the usual boring talking points in copyright debates, but rather really did focus in on specific key issues. And, most surprising of all was that many of the Congressional Reps who were there not only seemed really engaged and mostly on point concerning the issues raised, but actually seemed open to looking at real legislative proposals on these issues. Of course, going from there to actually getting proposals before Congress is still going to take a Herculean effort -- because almost all of the good proposals listed above would almost immediately be fought hard by the big Hollywood studio lobbyists, who still seem to think of this as a zero sum game -- where any improvement to fair use is an attack on them, or any attempt to make sure the DMCA isn't abused is somehow a direct assault on the film business.

The biggest point that went totally missing from the debate was the TPP and other existing trade agreements. It's worth noting that for all the talk of fixing DMCA 1201 or solving the orphan works problem, doing so would almost certainly violate what the USTR just put into the TPP agreement that Congress needs to ratify (or not!) in the next few months. It was a little disappointing that no one raised this issue, and the fact that if Congress doesn't want to give up its power to make these kinds of fixes, it should vote down the TPP. Similarly, ideas like Brewster Kahle's return to copyright formalities requirements would violate the Berne Convention, and other changes suggested would violate a variety of other existing trade agreements. Of course, Congress should be willing to do exactly that in order to fix a terribly broken copyright system, but with at least the TPP currently on Congress's docket, it seems important to remind them that, in many ways, the TPP can bind Congress's hands in addressing many of the problems brought up at the hearing.

Filed Under: 512f, copyright, copyright reform, darrell issa, dmca, dmca 1201, dmca 512f, fair use, house judiciary committee, jerry nadler, orphan works

Will Australian Government Use Cost-Benefit Analysis To Kill Off Fair Use Proposal Once And For All?

from the set-up-to-fail dept

Discussions about copyright reform in Australia are now entering their fourth year, and the longer they go on, the worse the proposals become. That's in part because there has been a change of government in the interim, and the present Attorney-General, George Brandis, has made it clear he's firmly on the side of copyright companies, and indifferent to the Australian public's concerns or needs in a digital world.

One big problem for him and his maximalist friends is that a key recommendation of the Australian Law Reform Commission (ALRC), in its extremely detailed and rigorous analysis of the state of copyright in Australia, was to introduce a new fair use provision. This is absolute anathema for the copyright companies, which seem to hold that the law should only ever be changed in their favor, imposing a kind of copyright ratchet that prevents the public from gaining any substantial new rights. Simply dropping the fair use idea would be too obvious, so a way needs to be found to kill it off without causing an outcry against the Australian government's blatant favoritism. As ZDNet reports, maybe Brandis has found what he is looking for:

The Australian Attorney-General's Department has commissioned a cost-benefit analysis into the recommendation by the Australian Law Reform Commission (ALRC) to implement a fair use provision in the amendments that the government is proposing to make to the Copyright Act in order to adapt to the digital world.

The economic analysis, announced on Wednesday, will examine the cost effects that fair use would impose on copyright holders along with copyright user groups.

Although that sounds perfectly reasonable, the ZDNet story adds some important historical context from a year ago that Brandis probably hoped nobody would remember:

Brandis again affirmed his partiality toward content owners, claiming that the recommendation to implement a fair use defence was "a controversial proposal" and would weaken the rights of copyright owners.

"In considering the recommendations, we will be particularly concerned to ensure and we will approach the consideration of the report with the view that no prejudice be caused to the interests of rights holders and creators," he said in February 2014.

Since by its very nature fair use allows the public to use copyright material in various ways without needing to pay a licensing fee, this means there will inevitably be some "prejudice" to the copyright companies, although minor in comparison to the major gains for eveyone else. However impartial and balanced the cost-benefit analysis will be, it is bound to expose the fact that if the public gains any new freedoms there will be a theoretical loss for the copyright holders.

And that, presumably, will allow Brandis to refuse to implement the ALRC recommendation on the grounds that he must defend the interests of creators, even though they would be among the greatest benefactors of a fair use provision, which would allow them to use existing works in new and exciting ways. But who cares about art when corporate profits are at stake?

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

Filed Under: alrc, australia, copyright, copyright reform, cost benefit, fair use, george brandis

EU Copyright Reform Looking At Restricting Outdoor Photography

from the erecting-public-structures;-denying-public-access dept

More potential copyright insanity from the European Union. Some positive moves have been made, but they often seem to be offset by extremely awful ideas. Photographing public structures could soon become copyright infringement. At this point, there's no unified "freedom of panorama" across European countries. Some recognize this as a right inherent to citizens. Others feel any photographic reproductions of structures in public spaces are a violation of the creators' rights. (via Boing Boing)

A more logical approach to unification was proposed first in a copyright reform report written by Pirate Party representative Julia Reda.

The [copyright reform] report had originally suggested that the current disparity in laws on freedom of panorama across Europe (see map) be harmonised by proposing a unified standard allowing images of works that are permanently located in public places.

Perhaps feeling that anyone who self-identifies as a "pirate" is likely untrustworthy, the EU Parliament's Legal Affairs Committee has rewritten this proposal, going in the opposite direction.

16. Considers that the commercial use of photographs, video footage or other images of works which are permanently located in physical public places should always be subject to prior authorisation from the authors or any proxy acting for them

Instead of defaulting for the more logical assessment that only very limited protections can be extended to buildings and other structures fully visible to the public and erected in publicly-accessible areas, the Committee has extended "permission culture" to include objects not normally considered to be inaccessible to the public by camera/drawing/etc. because they're accessible to the public in all other respects.

Rather than allowing people to take and publish their own photographs of buildings and monuments in public places—as celebrated in the annual Wiki Loves Monuments campaign, as well as many many books with author-supplied photographs—full permissions, clearances, royalties, and/or use of authorised images would be required for videos, photographs, paintings or drawings with any potential commercial use. (Wikipedia does not accept images unless they can be re-used for any purpose.)

This would end a long-standing tradition in many countries that the skyline and the public scene should belong to everybody; in the UK and Ireland, for example, this goes all the way back to the Copyright Act 1911, [which first set down copyright exceptions in statute law, and is currently reflected in section 62 of the UK Copyright Designs and Patents Act 1988, and section 93 of the Irish Copyright and Related Rights Act 2000.

The status of existing books published without such clearances would become unclear; most Wikipedia images depicting public art would be lost; and it would become very much more difficult and more expensive to publish future books comprehensively illustrating architecture and public art (or even artists' sketchbooks depicting them).

You can already see the effects of the legal disparity in regards to the "right of panorama" in effect at Wikipedia. Its page for the Atomium, a structure created by André Waterkeyn for the 1958 World's Fair in Brussels, contains a censored image, thanks to Belgium's copyright laws.

Waterkeyn's family, aided by royalty collection agency SABAM, has pursued "unauthorized" photographs of the outdoor structure. Despite its actions, there are plenty of images of the Atomium floating around the internet. But you won't find one on its Wikipedia page. The next commercial use of depictions of this outdoor structure won't be happening until 2076, if EU's copyright laws aren't unified into something less completely ridiculous.

It's not just limited to Europe, although that's where the next battle is taking place. This same sort of copyright overreach can be witnessed in photos submitted to Wikimedia Commons which have been edited due to complaints from entities residing in countries without "freedom of panorama" protections. More requests for deletion/editing are cataloged here.

It will be about three months before the EU begins debating the proposed copyright reforms. Those living in the countries possibly affected by a "unified" ruling in favor of this clause are encouraged to contact their representatives.

If you're an EU citizen, for maximum impact please contact each of your local MEPs and ask them to communicate your concern to the MEP responsible for co-ordinating their group position on the matter—in the UK, for example, this would be Sajjad Karim (on-side?) for the Conservatives, or Mary Honeyball (wobbly?) for Labour—and ask them to ask the coordinating MEP to confirm that the group will be seeking to remove this clause as it currently stands from the report, and defend the full right to make use of photographs taken in public places, in this case the existing UK law. In this way you'll get the chance to learn what the group's detailed current position is (which you may then find you need to work to persuade your own MEP away from). The coordinating MEP will also thus be made aware of the full range of concerns being expressed to the group, and may be more likely to answer a request forwarded by a fellow MEP than a direct approach.

Filed Under: copyright, copyright reform, culture, eu, julia reda, outdoor photographs, panorama

EU Parliament Takes A Small Step Towards Improving Copyright

from the no-big-bold-changes-yet dept

On Wednesday, the European Parliament Legal Affairs Committee (JURI) adopted a copyright reform proposal based on the report that Pirate Party MEP Julia Reda released earlier this year. There were tons of amendments and some of the important ideas in the original report were taken out or watered down -- something that Reda readily admits. Former Pirate Party MEP Amelia Andersdotter, who had complained about Reda's report from the start, is vocally upset about the outcome, arguing that accomplishing a plan with only moderate ambitions is not what the Pirate Party should be supporting.

That said, there are some real reforms in there, including dropping the proposal for ancillary copyrights, better known as a "snippet tax" or "Google News tax" that many are pushing for. Missing from the final result, however, was support for "freedom of panorama" -- an important concept allowing people to photograph things in public (like the Eiffel Tower). Also troubling was the inclusion of an amendment that says copyright holders need to give express permission for works to be performed in public spaces, which could create a huge mess.

In short, it's copyright reform, but like most copyright reform lately, there's a jumble of concepts mixed in -- some good, some bad. When the US Congress finally gets around to releasing its plan for comprehensive copyright reform, it's likely to be something similar. A mixed bag of decent ideas and bad ideas, each designed to trade off on each other, to try to keep "both sides" happy -- or, more realistically, to placate both sides from being too angry about the stuff they consider bad.

But that's no way to create real reform. I understand how both Reda and Andersdotter feel on this issue and sympathize with both positions. Getting anything through on copyright reform is nearly impossible, so even marginally good changes can, quite reasonably, be seen as a big step -- especially after years of most reforms leaning much more heavily on bad ideas, with almost no good ones. Having a proposal move forward that at least has some good ideas in it is... progress.

But, it's also messy and marginal progress that comes along with some bad ideas as well. It becomes more about the politics of getting something than getting the best result.

And that's where this whole process is a bit depressing -- as is politics all too often. You focus on getting something done and it involves a lot of horse trading and marginal improvements rather than big fixes. It's also why it's so frustrating to see so many people continue to argue that copyright is about "two" competing interests -- copyright holders and the public. That's not the case. An ideal copyright system should be maximizing benefit to both. We should be looking at real policy changes that creates greater overall benefit, but no one seems willing to even entertain that possibility. And, for that reason, I share Andersdotter's dismay -- but not with Reda, rather with a process that is, itself, quite broken. Reda got something through that, frankly, would have been close to impossible a very short period of time ago. The fact that it's pretty limited speaks a lot more to the overall political system today than it does to Reda herself. But these small victories are important for the time being, so long as the overall focus is on creating real reforms in the long run.

Filed Under: amelia andersdotter, copyright, copyright reform, eu, eu parliament, julia reda, juri, pirate party, small victories