Some EU Nations Still Haven't Implemented The 2013 Marrakesh Treaty For The Blind

from the copyright-trumps-compassion dept

The annals of copyright are littered with acts of extraordinary stupidity and selfishness on the part of the publishers, recording industry and film studios. But few can match the refusal by the publishing industry to make it easier for the blind to gain access to reading material that would otherwise be blocked by copyright laws. Indeed, the fact that it took so long for what came to be known as the Marrakesh Treaty to be adopted is a shameful testimony to the publishing industry's belief that copyright maximalism is more important than the rights of the visually impaired. As James Love, Director of Knowledge Ecology International (KEI), wrote in 2013, when the treaty was finally adopted:

It difficult to comprehend why this treaty generated so much opposition from publishers and patent holders, and why it took five years to achieve this result. As we celebrate and savor this moment, we should thank all of those who resisted the constant calls to lower expectations and accept an outcome far less important than what was achieved today.

Even once the treaty was agreed, the publishing industry continued to fight against making it easier for the visually impaired to enjoy better access to books. In 2016, Techdirt reported that the Association of American Publishers was still lobbying to water down the US ratification package. Fortunately, as an international treaty, the Marrakesh Treaty came into force around the world anyway, despite the US foot-dragging.

Thanks to heavy lobbying by the region's publishers, the EU has been just as bad. It only formally ratified the Marrakesh Treaty in October of this year. As an article on the IPKat blog explains, the EU has the authority to sign and ratify treaties on behalf of the EU Member States, but it then requires the treaty to be implemented in national law:

In this case, the EU asked that national legislators reform their domestic copyright law by transposing the 2017/1564 Directive of 13 September 2017. The Directive requires that all necessary national measures be implemented by 12 October 2018. Not all member states complied by this deadline, whereby the EU Commission introduced infringement procedures against them for non-compliance. The list of the non-compliant countries is as follows:

Belgium, Cyprus, Czech Republic, Germany, Estonia, Greece, Finland, France, Italy, Lithuania, Luxembourg, Latvia, Poland, Portugal, Romania, Slovenia, UK

The IPKat post points out that some of the countries listed there, such as the UK and France, have in fact introduced exceptions to copyright to enable the making of accessible copies to the visually impaired. It's still a bit of mystery why they are on the list:

At the moment, the Commission has not published details regarding the claimed non-compliance by the countries listed. We cannot assume that the non-compliance proceedings were launched because the countries failed to introduce the exceptions in full, because countries can also be sanctioned if the scope of the exception implemented is too broad, so much so that it is disproportionately harmful to the interest of rightsholders. So we will have to wait and see what part of the implementation was deemed not up to scratch by the Commission.

As that indicates, it's possible that some of the countries mentioned are being criticized for non-compliance because they were too generous to the visually impaired. If it turns out that industry lobbyists are behind this, it would be yet another astonishing demonstration of selfishness from publishers whose behavior in connection with the Marrakesh Treaty has been nothing short of disgusting.

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

Filed Under: belgium, blind, copyright, eu, finland, france, germany, greece, italy, marrakesh treaty, poland, publishers, uk

Small And Medium Publishers Protest EU Link Tax, Which Will Harm Them, While Helping Only Large Publishers

from the shameful dept

As the EU continues to march towards wrecking the internet with a variety of dangerous proposals in the EU Copyright Directive, many are desperately trying to explain to policymakers there just how much damage they are going to do and asking them to take simple steps to prevent the worst possible outcomes. While most of the attention has been on the awful Article 13 upload filters, the Article 11 link/snippet tax is almost as bad.

Of course, to hear EU supporters of Article 11 explain things, such a brand new "publisher's right" is necessary to help save media organizations who have been undermined by the basic business model of the internet. This is already insanity (and, as we've pointed out, when both Germany and Spain passed similar laws, it harmed media sites, and did nothing to increase their revenue), but if that were the case, you'd expect most media organizations to be totally on board with the plan. That is not the case. A few of the very largest media sites are totally on board (with German publisher Axel Springer being the leading voice in support). But midsize and small publications recognize just how damaging this will be and they've now sent a letter to policymakers, who are working to finalize the Directive, calling out how the existing language puts them (the very entities policymakers claim this law will support) at great risk:

... we’ve noted with deep regret that both the European Council and the European Parliament are advocating for the creation of a new publishers’ right (Article 11 of the proposed Copyright Directive) instead of other alternatives, such as the presumption of rights, put forth by a wide range of stakeholders.

If the European institutions go ahead with the creation of such a right, we believe that it should incorporate key provisions that at least reduce some of the collateral damage to small and medium-sized publishers we expect, including with a view to transposition into national law.

Of particular concern is the idea that Article 11 might require licenses in order to index news content. That means even if a smaller site does not wish to be compensated by a news aggregator -- it has to set up a licensing scheme that requires payment. In effect, this outlaws Creative Commons and numerous business models and distribution strategies for the internet.

We would like to highlight a highly problematic provision adopted by the European Parliament: Article 11 (1) and Recital 32 introduce a remuneration principle which prohibits publishers from allowing indexing of their content online without remuneration. Recital 32 means that news aggregators, podcast aggregators and search engines would not be allowed to serve links with individual words and short extracts of news publisher content without a bespoke agreement stipulating payment – even when a news publisher wishes to be included.

We adamantly believe that any publisher’s right must give publishers the choice to consent to the sharing of their content online. Aggregators, search engines and other online services drive valuable traffic to publishers’ websites, particularly smaller or local ones; and this traffic referral creates huge opportunities to generate revenue through advertising.

Limiting publishers’ freedom in this way will result in detrimental consequences for us, as shown by a similar experience in Spain. The introduction of an unwaivable ancillary copyright in favor of publishers in Spain caused small publishers to lose as much as 15% of their web traffic. This is estimated to have cost the Spanish news publishing industry €10 million a year.

The key issue here is that if news aggregators -- who send sites plenty of traffic -- are required to set up licensing schemes and pay everyone they link to, it is most likely that they will only wish to negotiate with a few larger players, and simply avoid linking to smaller sites, if they continue linking at all. This will disproportionately benefit those large sites. And this would be true even if (as many predict) brand new collection society middlemen show up to collect and distribute such money.

We've already seen this in action. In the US, it's been widely reported how collection society ASCAP simply finds it impossible to track the number of plays of smaller, independent artists, and thus distributes their share to the most popular artists. It is literally taking from the smallest, independent artists, and giving their royalties to the wealthier and more successful ones. The same is likely true of any scheme for reimbursing news sites as well.

Hell, we're a news site here that is always open to new revenue streams, but I find it offensive that the government should step in to try to force other sites to pay us, and expect that even if it did apply to us, it would be such a huge bureaucratic clusterfuck that it wouldn't even be worth the effort to make sure we got paid.

So, really, the various policymakers in the EU should be required to answer a fairly simple question: if so many media sites are directly against this policy, and policymakers are claiming its necessary to help those very sites... then who are they really doing this for in the first place?

Filed Under: article 11, copyright, eu, eu copyright directive, europe, link tax, neighboring rights, publishers

EU Publishers Freak Out Now That People Are Realizing Just How Fucked Up Their Link Tax Really Is

from the stop-the-link-tax dept

We recently had Julia Reda, a Member of the EU Parliament, on the podcast to discuss the horrible copyright directive proposal soon to be voted on by the Legal Affairs Committee in the EU Parliament. As we've been explaining, there are two very problematic parts to the copyright proposal: mandatory upload filters and the so-called "link tax." The link tax is also refered to as neighboring right or a snippet tax or a wide variety of similar things. But the crux of it is this: publishers are annoyed that Google and Facebook are successful, while they've been struggling. Ergo, the simplest solution is that Google and Facebook should be giving them money.

To make this happen, for a while now they've been dishonestly screaming that Google and Facebook are somehow unfairly "profiting" off of their work, because those sites link to online published news stories, often including snippets. The theory is that this somehow takes away from those own sites' ability to profit. This... makes no sense. First off, this effort drives valuable traffic to the websites of these publishers. This is obvious from the fact that all of the publishers whining about this (1) have not used robots.txt to block sites like Google from scraping them and (2) employ their own search engine optimization team to appear higher in search results, showing they value traffic driven by search. The "solution" to this made up "problem" then is to say that sites like Google or Facebook are violating a brand new "publisher's right" or "neighboring right" in sending these sites traffic without also paying them, and thus they want to force sites to get a license to send traffic.

Obviously, this goes against basically any reasonable conceptual understanding of how the internet works. And, this concept has been tested in Europe and failed. Germany tried it, and when Google responded by no longer including snippets for the publishers demanding payment, traffic to those publishers declined, and those publishers freaked out, eventually giving Google a free license. Spain then tried the same thing, but to avoid the "free license" issue, included as part of its law that you couldn't offer a free license (more or less making Creative Commons illegal, but that's a whole other issue). The end result there was Google News pulling out of Spain entirely, and traffic to publishers' sites dropping significantly.

Of course, the German (mainly) publishers can't stop pushing this idea, and thanks to some friends in the EU Commission and EU Parliament, it's quite close to becoming law in the EU. People are very vocally protesting and pointing out the problems with this, so the publishers are now trying to push back by putting out a ridiculous "Mythbuster" document that claims to clear up why everyone is wrong about the problems of a link tax. Let's take a look.

Fact #1: A publishers' right is NOT a Google/links tax

​The claim that the publishers' right is a threat to the link is the most misleading scare tactic of all from those who seek to undermine the case for a new publishers' right. There is a material and functional difference between you or me reading something we like and posting a link to Facebook and what commercial aggregators and search engines do. Opponents to the neighbouring right for press publishers like to suggest they're equivalent somehow.

Systematic scraping of content - which involves copying it 'en masse' into a private and permanently retained database, processing it and using extracts in commercial services such as search engines, for the purpose of making available text or images (or any other creative content for that matter) together with hyperlinks for commercial purposes is not equivalent to the activities of individuals browsing the web and posting links to things they are interested in.

This is... an interesting spin on things. Of course, it raises a pretty serious question: if there is a "material and functional difference" based on who does the linking... what is that actual difference, and how do we define it in law in a way that doesn't have serious negative consequences? But, more to the point, if it's such a huge problem, why don't these publishers just block the systematic scraping of content from the likes of Google until Google agrees to pay a license? This is not hard to do. It's actually incredibly easy. But the publishers don't want to do that.

And, really, even if we take the publishers' claims at face value, what they are actually saying is that internet search should require a license from every internet site it links to. That's... quite an astounding argument to make. It would have created a very, very different internet, and not a very good one.

Fact #2: Publishers will NOT use this right to block access to their content

Why would we do that? Popularity of our content has never been greater, particularly with the growth of smartphone readership and multiple access points to out content.

It is in publishers' interest to make their products available as widely as possible, on as many platforms as possible. But if big commercial operators continue to be allowed to reuse publishers' products and content without a licence or asking for authorisation, in the long run there will be less of them available. Even if some products are not available on all platforms users will still have many ways to discover and consumer those products, including on publishers' own websites!

First of all, there is not just no evidence to support the idea that there will be less publishers' product if Google and Facebook don't pay them, there is counter-evidence. There has been an incredible explosion in content creation in the past couple of decades, and much of it is driven by the massive decrease in distribution and discovery costs -- which in large part are due to things like search engines.

But a larger point on this one is that this "fact" is meaningless to the debate. I've not seen many people claiming that publishers will pull back their content. Indeed, part of the argument people are making is to wonder why they're not pulling back their content if search engines and aggregators really are so harmful. Again, it's not hard for them to do.

Data shows that news and press content is the most 'wanted' content on social networks and online platforms (Reuters Digital News Report 2015). When dealing with sometimes very large and powerful operators, it's quite right that publishers should be able to grant permissions in return for agreed conditions and to withold permission when agreement cannot be reached.

So, why not do that now? Again, it would be easy for a publisher to withhold content from Google and only put it back with a licensing agreement of some sort. They're not doing it. Instead, they're investing in SEO which suggests that they know that they actually get value from search. But now they want not just value, but also extra payments on top of that.

Fact 3: This right is NOT unique to publishers; Publishers are NOT asking for special treatment

A publishers' right will be similar to the related rights already enjoyed by broadcasters, music and film producers, whose finished works are protected in their entirety. This is what press publishers are asking for, too.

Since 1991 computer programs have benefited from full copyright protection at EU level. Furthermore, it's the companies, whose employees create these programs, which own all the rights to the programs and who have full exclusive control over how they are managed and enforced, just like film producers or broadcasters.

Whoo boy. Someone could write an entire PhD thesis on just how wrong this is. What the publishers are demanding goes way beyond copyright. Broadcasters, musicians and film producers do get copyright -- but so do publishers. Publishers are now asking for something in addition. They already have copyright protection in their works. Now they're asking for a separate right to link to their content (and, depending on interpretations) to include a snippet of what's in the link.

Fact 4: This is NOT just about Google

It's a sad fact of the internet that there are many companies, large and small, old and new that systematically scrape and re-publish press content for commercial purposes without permission or payment.

Why is this sad? This is what makes the internet useful. And they're not "republishing" press content. They're LINKING TO YOU AND DRIVING YOU TRAFFIC. That's a good thing. If you actually spent 20% of what you've spent over the years lobbying for this awful idea on figuring out how to take advantage of the free traffic that these sites send you, you'd already be doing much better. Instead, you do a classic rent seeking move to demand from the government that which you failed to accomplish as a business.

And, more the point: if this does go into effect, Google may be able to afford it, but the others won't. So in the end, it will be about them. Because you'll have systematically removed everyone else from the market.

Fact 5: Small publishers will NOT be negatively impacted

Currently, even large media corporations are not in the position to negotiate for a fair settlement with dominant players. The hope is that the publishers' right might begin to address this asymmetry of power and make it easier for all publishers - whatever their size - to monetise and share fairly in the value of the content in the future if they would like to.

​As the law currently stands, in order to defend their rights publishers need to attempt to track all uses of their content across the whole internet, issue notices in respect of each individual infringing use they discover, and, frequently, prove the chain of title for tens of thousands of articles and photographs. This is daunting, extremely costly, time consuming and practically impossible except in a small number of cases. The outcome is also rarely better than a takedown of the infringing content; damages and costs are rare.

Well, first off, we have actual evidence of this already in Spain, where studies showed that it DID disproportionately hurt small publishers. This is also why small publishers have come out against your dumb proposal. So, it's great for you to say it will have no impact, but you have no evidence to support that position, and tons of evidence against it. It seems, yet again, that your fact is, in fact, a myth.

Fact 6: Innovation will still be possible - and more accessible!

A publishers' right will help open the way for more innovation. Clarifying the law at EU level will improve press publishers' bargaining position when it comes to third parties' use of their works, and more legal certainty over their rights will help encourage investment and increase the possibilities for publishers of all sizes across Europe to develop new product offerings, to the benefit of their readers.

This isn't "clarifying." This is creating an entirely new right that by your own actions (SEO, failing to use robots.txt) you show is unnecessary. This isn't about "more legal certainty." This is about massively putting your fingers on the scale, such that more successful businesses need to pay you for sending you valuable traffic.

There's a myth that a liberal copyright regime is necessary to encourage innovation, but this is not true. Imagine a situation where tech companies allow others to use their patented or trademarked products or services without authorization or payment. Tech companies fiercely defend and protect their own intellectual property. Why should it be any different when it comes to protecting copyright?

This is hilarious. First, there is tons of evidence to support the idea that a more "liberal copyright regime" helps with innovation. But the really nonsense claim is that this is somehow hypocritical of tech. Now, you can certainly point to some tech companies that over-aggressively enforce various aspects of their patents and trademarks, but the more innovative ones are not exactly known for it. Google is not going out and suing others over patents. Companies like Tesla have even freed up all their patents. The tech industry tends to view patents and trademarks as more of a necessary evil, rather than something they need to "protect" their work. So, no they don't "fiercely defend and protect." This whole claim is just nonsense from some European publishers who don't seem to know what they're talking about.

Fact 7: Users will NOT be criminalised and the internet will NOT be broken

Nothing we are asking for would affect the way that our readers access our content or share links on social media or via apps and email to friends and family. Nor will it change the contractual arrangements with journalists, photographers and other contributors.

Bullshit. You just said that you want large companies to pay up. That will absolutely, by definition, change how readers share content and links on social media. The platforms that are doing this will suddenly have to get licenses, meaning they'd likely block plenty of sharing on content they don't have such a license for. And some, a la Google News in Spain, may drop out altogether.

The only people who will notice any changes at all are those who today free-ride for commercial gain on publishers' investments without permission or payment. Who are they? Well, not the readers, authors or individual users, but commercial organisations whose business models and significant economic benefits depend on the use of publishers' journalistically-produced content.

So... EU Publishers: here's a question. If you consider Google sending you free traffic as "free riding," um... aren't you "free riding" on the traffic Google sends you for free? Isn't this line of reasoning going to get you into deep shit when someone spins around and asks why you're free riding on Google and Facebook and not paying them for the traffic they send you? After all, you're getting commercial gain from Google and Facebook's investment without permission or payment.

Fact 8: An independent, free press that supports diversity and upholds democracy CANNOT survive indefinitely without generating revenues

A free and independent press can only exist if there is adequate revenue to pay journalists, photographers and freelancers and to finance their training and security. Today, the prospect is increasingly reduced, due to declining print revenues that have not been matched by digital despite increased levels of readership. The reasons for this are complex, but in a nutshell large search engines and other distributors make publishers' content available for free to the user without re-investing in its production while making it difficult for publishers to charge users directly for the same content.

This is true! Finally! But what does it have to do with getting this brand new right? Again, the experiments with it in Germany and Spain have not led to any new revenue for publishers. So why do you naturally assume that it will magically happen this time? The decline of print revenues is a big deal. And it is a huge challenge for publishers. But why do you assume that the answer is having governments force other companies to pay you? What a weird approach.

The loss of advertising share is also significant, as much of this now goes directly to search and social networks, which attract larger user groups that include users who are reading publishers' content on their platforms. Finally, unauthorised large-scale re-use of publishers' content and a lack of legal clarity that would enable enforcement against large-scale infringements is a growing problem that needs reversing.

The loss of advertising share... basically sounds like admission that you guys suck at your jobs. And you want a government bailout. And, again, they're not "re-using" your content. They're sending you traffic. Traffic that you could monetize. If you were good at your jobs and not crying to Brussels.

Fact 9: Consumers will still be able to find news and content on different platforms

Publishers actively make their content available on all platforms, accessible on any device of choice. They recognize that consumers benefit from easy access to their content wherever they happen to be, whether this be through publishers' own websites, or on social media or search pages where multiple sources of content are aggregated. Not only do consumers benefit, but so do the hosts of publishers' content who derive value and real benefits through increased traffic, advertising revenues or in some cases subscription fees.

What? I mean, sure, publishers will make their content available if they are getting paid for the links. That's the whole freaking issue. This would mandate fees for those links, and of course then the publishers will make the content available -- they want to get paid. The problem is that many platforms won't post links to their content any more because it won't be cost effective.

Publishers recognise that search and social media platforms are important partners for news organisations and that their traffic brings benefits, although not on the exaggerated scale claimed by some. The current system does not recognise the value third parties get from publishers' content. It is unsustainable for publishers to continue funding high-quality professional journalism without a fair share of the value others derive from their content.

Their traffic brings benefits... which is why we need to get them to also pay us? How does that make any sense?

Fact 10: Publishers are NOT just trying to support 'old' business models

Publishers have made an important transition from analogue to digital over the past decade with high degrees of innovation and enormous growth in audience and popularity. They have embraced the digital age and count as many technical staff as editorial.

You do this after paragraph upon paragraph talking about how you can't survive without this tax on links. Which means you haven't actually embraced digital. It means you're demanding that those who actually have embraced digital subsidize your failures.

The publishers' arguments here are not just weak, they're nonsensical. There is no way to understand the link tax "publishers' rights" proposal as anything other than a massive subsidy from successful internet companies to publishers who failed to adapt to a changing marketplace. It's sad that the EU seems to think that's an appropriate response, and that the powers that be don't seem to care about the existing evidence of how such laws have completely flopped in the past.

This is not evidence-based policy-making. It is corruption. It is corruption in bowing to the will of a few large publishers who have failed to innovate successfully, and are now going to harm the entire internet in response. The EU Parliament should not allow this to happen. If you agree that this is crazy, go check out SaveTheLink.org, which has more details.

Filed Under: copyright, eu, link tax, neighboring rights, publishers

EU Publishers Acknowledge Snippet Tax Concerns, But Say: 'It's OK, You Can Trust Us'

from the yeah,-sure dept

Techdirt has been following the ridiculous proposal to extend EU copyright even further to include tiny snippets from articles for years now. The idea has already been tried twice in the European Union, and failed dismally on both occasions. In Spain, a study showed the move there caused serious economic damage, especially to smaller companies; German publishers tacitly admitted the law was pointless when they granted Google a free license to use snippets from their titles. More recently, the European Commission's own research confirmed that far from harming publishers, news aggregators have a positive impact on the industry's advertising revenue. Despite the clear indications that a snippet tax is a terrible idea, some want to go even further, and make it apply to hyperlinks too. Writing in the French newspaper Le Monde back in December, large news agencies including Germany's DPA and France's AFP complained that sites:

offer internet users the work done by others, the news media, by freely publishing hypertext links to their stories. […] Solutions must be found. […] We strongly urge our governments, the European parliament and the commission to proceed with this directive.

Now EU publishers have weighed in on the snippet tax, formally known as Article 11 of the proposed Copyright Directive. Their latest position paper, embedded below, makes a confession:

We acknowledge that concerns have been raised that Article 11 as proposed by the Commission may have a negative effect on the legitimate personal non-commercial use of excerpts from press publications by a natural person by way of hyperlinking or sharing.

But there's no reason to worry, they say, for the following reason:

However, we would like to emphasize that it is in publishers' interest to make their products available as widely as possible, on as many platforms as possible and this is why publishers themselves encourage their readers to share articles and news on social media for free.

In other words: trust us, we won't misuse a new right to forbid anyone from sharing even tiny snippets. Except, of course, copyright holders have repeatedly abused their intellectual monopoly to censor material, in precisely this way. EU publishers want this new right to block snippets to apply even to single words:

We therefore question the necessity of introducing in the new [EU] Presidency's compromise text, a reduction of the scope of protection granted to press publishers to acts of reproduction and making available to the public performed by "service providers" and excluding "individual words or very short extracts of text".

They also want to extend the scope of the snippet ban:

In our view it is essential that any commercial entity or organisation, regardless of their business model, including those currently licensed by press publishers, exclusively or collectively, continues to be within scope of protection. Typically these organisations can be aggregators, media monitoring and press clipping agencies, individual companies, or public institutions.

This isn't just about making search engines pay for the privilege of using snippets of text: it would include every company, of whatever size, and every public body, however meritorious or altruistic its activities, that uses them. The new position paper is important because it makes clearer than ever before that the snippet tax is not about stopping a few big players like Google from indexing stories from publications. After all, that could be easily achieved by blocking the crawlers using the robot.txt file. Article 11 is about something much bigger. It is the latest expression of the publishing industry's apparently infinite sense of entitlement -- that it has a right to control even "individual words or very short extracts of text" used by "any commercial entity or organisation, regardless of their business model", as the document puts it. The egotism of publishers is so monstrous that they don't even care if achieving this insane level of control over the Internet goes against their own economic interests, as the evidence shows it will. Power, it seems, is more important than profits.

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

Filed Under: aggregation, copyright, copyright directive, eu, link tax, publishers, snippet tax

UK Gov't Considering Redefining Social Media Services As Publishers To Make It Easier To Control Them

from the failing-upward dept

Like seemingly every other government on the planet, the UK government wants internet companies like Google and Facebook to do more. Everyone has an axe to grind, whether it's not enough censorship, or the wrong kind of censorship, or the innate desire to hold companies accountable for the actions of their users. The voluntary moderation efforts made by these platforms always fall short of politicians' ideals. These legislators believe -- without evidence -- that perfectly moderated services are just a couple of button pushes away.

Because the things governments complain about are actually the words and deeds of users -- rather than the companies themselves -- pushes for "more" have limited effect. This doesn't make governments happy. This is a "problem" that needs "solving," apparently. And officials in the UK think they have an answer. They'll just arbitrarily redefine services until they're more easily pushed around.

Karen Bradley, the culture secretary, has said the government is considering changing the legal status of Google, Facebook and other internet companies amid growing concerns about copyright infringement and the spread of extremist material online.

The internet groups are considered conduits of information rather than publishers under UK law, meaning they have limited responsibility for what appears on their sites.

However, the chairman of the media regulator Ofcom said on Tuesday she believed the likes of Google and Facebook were publishers, raising the prospect that they could eventually face more regulation.

Before we delve into the bullshit that is redefining tech companies for easier regulation, let's take a look at the activities the UK government is treating as equals: terrorism and copyright infringement. Tell me that's not screwed up. I understand the government can be concerned about multiple online issues simultaneously, but while it may be conceivable the use of social media platforms by terrorists necessitates closer government scrutiny, mentioning infringement in the same breath cheapens the entire argument. It immediately makes it clear the endgame isn't curbing murderous acts that kill and injure dozens of people, but regulation of any sort of internet activity the government finds bothersome.

This is the slippery slope, delivered by a government official in a single sentence. Terrorism concerns make it easy to diminish freedoms and expand governmental control of communication services. Once it's set in motion, it remains in motion, moving from great evils like terrorism to comparatively minor quibbles like file sharing -- an activity that has yet to kill anyone. One is an existential threat. The other threatens nothing more than incumbents and their business models. Bradley's comment strongly suggests her ear's been bent nearly to the point of removal by entertainment lobbyists.

Moving beyond that, there's the problem with redefinition. You can't call a cat a dog just because more people register dogs than cats and you want to see that revenue stream increased. You can't call third parties publishers just because it makes it easier to hold them accountable for the actions of their users. If you head down this path, you invite every special interest group with a complaint about the internet to treat service providers as publishers. In short, you're asking to rain down litigation hell on tech companies with the end result being fewer services available for internet users.

If there's an upside, it's that the culture secretary views this definition shift as problematic.

I am looking into this. I am not sure the publisher definition in UK law would necessarily work in the way that people would like it to work. I think it would end up being very restrictive and make the internet not work in the way we want it to work.

But Bradley also wants the UK to be the "safest place to be online." It's hard to maintain a "free vibrant internet" while clamping down on everything the UK government considers to be dangerous. Website blocking by UK service providers already creates something far less free and vibrant than can be found elsewhere, and yet, it hasn't done much to make the UK much safer online, much less IRL.

Bradley may be hesitant to throw a different label on social media services, but the UK government as a whole hasn't exactly been shy about creating an AOL-esque Wee Britain online -- something that chills speech and deprives UK citizens of sources of information.

Filed Under: intermediary liability, internet, publishers, regulations, uk
Companies: facebook, google

EU Parliament Dumps Link Tax, Invites News Publishers To Sue If They Think Google's Making Them Broke

from the won't-hold-my-breath-for-production-of-evidence dept

Last summer, Mike reported the EU Commission was about to institute a "link tax" on news snippets. In essence, the tax would have punished search engines for sending traffic TO news sites. Not only is that part of it a stupid, backwards idea, but previous attempts by European countries to institute link/Google taxes were abject failures, resulting in Google refusing to list taxed news articles in its search results.

Readers were invited to comment on the proposed tax. It's not clear whether those comments were heard above the overly-confident dull roar of industry lobbyists, but whatever the turning point was, the link tax idea is dead. What's being offered to publishers is something completely different: an opportunity to sue Google, et al for supposed infringement.

The decision by copyright rapporteur and European People’s Party MEP Therese Comodini Cachia is a mixed result for European publishers, who had lobbied for legislation allowing them to charge companies like Google and Yahoo when they display parts of their articles, including headlines and snippets.

While the proposed measure falls short of that ambition, it would create a legal channel through which publishers would be able to attempt to enforce their claims. “Press publishers are given the right to bring proceedings in their own name before tribunals against infringers of the rights held by the authors of the works contained in their press publication,” reads the report.

Say goodbye to ancillary rights and hello to pointless litigation. The latter is the better idea, though. This puts the burden on news agencies to show they've been harmed by increased referral traffic. This proposal isn't making many European publishers happy.

“Comodini’s draft report fails to deliver for press publishers,” said Wout van Wijk, executive director of industry association News Media Europe. “All that this will potentially do is lead to more litigation.”

Publishers don't have to sue. It's not mandatory. They could just sit back and enjoy the additional traffic. As the EU Parliament points out in its proposal, Google's news snippets aren't "necessarily disproportionately harmful" to publishers and may very well increase traffic to their sites and provide them with new subscribers. It's pretty much impossible to present evidence of harm when there's no evidence to be had. The whole "link tax" idea rests on publishers' unfounded claims Google, etc. are responsible for the financial woes of the continent's new agencies. There are multiple factors to consider, but publishers seem to focus solely on Google, as if news publishers and Google were engaged in a zero sum profitability game.

The report also points out a link tax might have a chilling effect on thousands of citizens who have nothing to do with the search engine giant. Its report notes the non-commercial sharing of links is an important part of societal communication and levying a tax on sharing is no way to encourage speech. Shifting the burden of proof to publishers challenges them to put their theoretically "lost" money where their mouths are… which is the way it should be.

Filed Under: ancillary copyright, eu, eu parliament, google tax, link tax, platforms, publishers
Companies: google

Publishing Lobbyists Suck Up To Trump With Lies About Copyright, Ask Him To Kill DMCA Safe Harbors

from the because-of-course dept

With the Donald Trump administration fully taking shape, lobbyists for basically every industry (yes, including tech and internet companies) are groveling before the President with whatever their pet projects are. The latest to put together a letter is the Association of American Publishers, via its top lobbyist Allan Adler. You may recall Adler from a few years ago, in which he explained why his organization opposed a copyright treaty for the blind, noting that his members were upset about the idea of ever including user rights in international treaties, and only wanted to see international agreements that focused on stronger copyright protections. So, you get a sense of where he's coming from.

The letter to Trump is pretty much what you'd expect from a lobbyist for a bunch of legacy publishers wedded to an outdated business model, but there were a few things I wanted to call out. First, Adler and the AAP blatantly misrepresent the Constitutional copyright clause to pretend it says something quite different than it really says or mean.

In the U.S., publishers continue investing in innovative technologies and business models to support the creation and dissemination of works of original expression, by novice as well as celebrated authors. Their ability to get those works into the marketplace, without interference from government and with the key assets of their exclusive rights in such works acknowledged as legally-safeguarded intellectual property, is protected by the First Amendment’s guarantee of freedom of speech and the Constitution’s clear recognition that “securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” will “Promote the Progress of Science and useful Arts.” (Article 1, Section 8, Clause 8)

First of all, it's a neat trick to claim that copyright is "without interference from government." The entire setup of a copyright system is a government interference with the free market. Now, you can argue that that interference is necessary to prevent free-riding, but to state that copyright is somehow a free market concept is just wrong.

But, more importantly, notice the Constitutional explanation, which blatantly misrepresents the actual Constitution. The trick is played by the insertion of the single word "will" between "securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" and "Promote the Progress of Science and useful Arts." Nowhere in the Constitution does it say that such protections will promote the progress. Instead, it gives the power to Congress (not the President, I should note), to set up such monopolies if it is determined by Congress to promote the progress. To flip that is dishonest. It falsely suggests that any exclusive rights to authors and inventors automatically promotes the progress of science and the useful arts. And yet, we have 200+ years of examples of how that's not true -- including more than a few cases in which Mr. Adler's members have proactively blocked and harmed the progress of science through abuse of monopoly powers.

To pretend that the Constitutional clause on copyrights and patents means that any and all monopolies are good is ridiculous and misleading.

Next up, Adler falsely compares copyright to trademark... and (of course) tries to flatter Trump in the process:

Surely you understand the role that meaningful intellectual property rights play in American entrepreneurial success, both at home and in global markets, as the ability to burnish the Trump brand through trademark registration and enforcement has helped your diverse enterprises to grow and thrive world-wide. Consistent with that understanding, your businesses have been active at the U.S. Trademark Office and in the courts when necessary to exercise your statutory rights to prevent infringement or dilution of your brand.

Whether operating on a commercial or non-profit basis, publishers’ reliance on their ability to secure adequate copyright protection and effective copyright enforcement, under both federal law and a variety of international agreements, is as critical to their success as the maintenance of trademark protection has been for your business endeavors. It is essential to their ability to publish in the U.S., where readers of all ages, origins and interests can relish discovering and digesting works that entertain or inform them while enriching the cultural, historical, political, and scientific record of American society.

Except, of course, that trademark and copyright are two totally different legal doctrines, and have only been merged into the mythical "intellectual property" bucket by lawyers trying to increase their billing rates. Copyright, as noted above, comes from a specific clause in the Constitution and is about promoting progress. Trademark comes from commercial codes and was, initially, a form of consumer protection against allowing one company to appropriate the brand of another for the purpose of confusing consumers. That's a very different ancestry and purpose of the law, and lumping them together is silly. The way both work is different. The way they're enforced is different. And their purpose is different.

Finally, Adler and the publishers join with the RIAA and others in asking Trump to dismantle key protections built into copyright law that have enabled the internet to grow and to thrive. Because the publishers don't seem to like competition very much.

Provisions of the Digital Millennium Copyright Act (“DMCA”), which Congress enacted in 1998 to encourage online availability of popular copyrighted works while promoting a balance of interests and cooperation between copyright owners and Internet service providers in dealing with online infringement of such works, wildly succeeded in encouraging such availability. However, the relevant DMCA provisions do not achieve that intended balance and cooperation due to numerous instances of judicial misapplication and the unanticipated appearance of service provider business models that foster, exploit and profit from online infringement by their users while offering only token compliance with the law.

The current epidemic of online infringement harms public as well as private interests in the availability of such works, and the legal flaws that hamper the DMCA in its intended operation need to be fixed by our nation’s elected representatives.

Citation needed. The "epidemic" of online infringement is not as big as they're making it out to be, and this is from an industry that has regularly charged insane monopoly rents on things like textbooks and scientific journals. In fact, for them to be complaining about "judicial misapplication" when their industry has massively benefited from a ridiculous ruling that claimed that copy shops were violating copyright law -- which allowed course packs at universities to jump in price from around $30 to around $200 -- is simply crazy.

Yes, every industry is going to advocate for their own interests, but this constant lying and misrepresentation about copyright law to the incoming administration is getting pretty ridiculous. We truly have reached a post-fact society, and the lobbyists are going to exploit that as much as possible. It's only that much more ridiculous that it's coming from a representative of an industry that claims to be promoting knowledge and learning.

Filed Under: allan adler, constitution, copyright, dmca safe harbors, donald trump, publishers
Companies: association of american publishers

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

BMI Records Record Revenue... While Whining To DOJ That It Can't Function Under Antitrust Agreement

from the something-doesn't-add-up-here dept

As we've been discussing, the two big music collection societies in the US, ASCAP and BMI, are desperately fighting to get the DOJ to alter (or end entirely) the "consent agreement" that they operate under. The consent agreement, in various forms, has been in place for decades, after the DOJ properly recognized that in licensing songwriters' and publishers' public performance rights, they had something of a monopoly. And monopolies can be dangerous when abused. Thus the consent decree to keep the organizations in line. However, both are really angry about this, in large part because they believe that without the consent decree, they could create a world in which they could force everyone to have to pay much higher fees (you can see some of how they tried to collude with publishers to jack up rates to Pandora).

So far, the attempt to get rid of the consent decree has not been going well. It has resulted in more investigations into the publishers for collusion for one thing. The DOJ has also apparently realized that the collection society's treatment of songs with multiple copyright holders may be another anti-trust violation.

And, yet, ASCAP and BMI keep trying to convince everyone that they're suffering under this "obsolete" consent decree, and they need to have it modified greatly. BMI, in comments to the DOJ, has claimed that it's suffocating under the current system, which it says is "broken":

The digital revolution in information processing and communications has completely transformed the way music performances are heard by the public and equally changed the way in which information about music performances is collected and processed. In particular, the rise of Internet streaming as a principal way the public hears performances of music has created market needs that are now not being met because of inefficient and anticompetitive restrictions in the BMI consent decree that serve no sound purpose today.

There is an urgent need for action now. BMI agrees with the Register of Copyrights’ recent testimony characterizing music licensing as “broken,” and certain aspects of the BMI consent decree have contributed to that breakdown. The decree creates rigidities and restrictions in the way BMI must operate that undermine BMI’s efficiency as a resource for both music users and music copyright owners in the digital world. The existing rate court mechanism has proven too slow, too expensive, and too legalistic to keep up with the speed of change in real-world markets today. The need is so dire that, rather than press for comprehensive reform at this point, in these public comments BMI urges the Department to prioritize particular changes that address these immediate needs.

Things must really suck for BMI and all the songwriters who get paid via BMI, right? Oh... wait. BMI has just announced a new record in revenue collection and pay out to artists.

BMI, whose full name is Broadcast Music Inc., collected $1.013 billion for the 12 months that ended in June, up almost 4 percent from the year before. That is slightly more than the $1.001 billion that its competitor Ascap took in last year.

In the number that will be scrutinized most closely by musicians — royalties — BMI paid slightly less than its rival. After deducting its operating expenses, BMI distributed $877 million to its thousands of members, including songwriters like Taylor Swift, Nile Rodgers and Adam Levine of Maroon 5. Last year, Ascap paid its members $883 million.

Why is it paying less than ASCAP? BMI doesn't blame the broken consent decree, but rather "significant legal costs" made up mainly of its lawsuit against Pandora. In other words, something that BMI had control over. The article also notes this little fact:

Since 2005, BMI’s collections have increased about 40 percent.

So, uh, can we hear again about how "dire" the situation is and how BMI can't function, even as its revenue has grown 40% in the last decade and it's setting all kinds of new records? Did BMI think the DOJ would just ignore that bit?

Filed Under: anti-trust, antitrust, collection societies, consent decree, doj, pros, publishers, revenue, songwriters
Companies: ascap, bmi

UK Publishers Don't See Why Anyone's Complaining About Copyright Law

from the because-they're-paid-not-to-understand dept

As the copyright reform effort is underway in Europe, a number of legacy players are running a bit scared. The UK Publishers Association published a rather amusing attempt at "mythbusting" claims that reformers are making about copyright. Nate Hoffelder over at The Digital Reader does a nice job showing how many of the Publishers Association's claims are complete bunk, and clearly influenced by what's in the publishers' best interests, rather than anyone else's -- but that's to be expected. They're there to represent a position -- and rather than take a long-term view, recognizing that what's best for the public long-term will be best for the publishers as well, they take the short-term, protectionist, anti-consumer view. Because that's what these silly trade groups think they should do.

The document was released with a weird nonsensical statement from Richard Mollet, the head of the Publishers Association:

“It is time to debunk the long-pedalled myth that copyright is an obstacle to growth in the digital economy.

“When you look at the success of publishing and other creative industries in developing online products and services it is palpably untrue – copyright is the means by which the digital economy functions, allowing works to be made available to consumers and rewarding creators and the companies which invest in them.

“In order to undermine copyright, people often wrongly cite it as the source of problems in the digital single market; or, they falsely claim not to be able to do things which actually they can. Also, we often hear people propose that copyright is a block to them doing things which would be unfair and damaging to authors and publishers.

It is no myth that copyright has been an obstacle for many businesses. To claim otherwise is just laughable. An intellectually honest argument would admit that copyright law clearly benefits some parties and harms others. The policy questions we should be arguing are about who is helped and who is harmed and what's best overall for society and culture. But, the Publishers Association doesn't even want to give an inch and can't even admit that some innovators are clearly held back by today's copyright law.

The last paragraph really gets at the crux of the full document they posted, because the summary is basically "people are upset about this thing they can't do -- but they can do it if only they pay us lots of money." That's basically the argument behind nearly all of the "myths" the document "busts."

First, it claims that the idea that Europe needs a "single digital market" is bunk because you can just license everything in different regions with today's law:

Copyright is delivering a digital single market. The ability of publishers to simultaneously license works across the EU – and in many cases the world – derives from the current copyright framework.

Then they mock the idea that text and data mining uses are blocked under copyright law... because, again, they can just license:

The market-based licence solutions can be tailored to the needs of different researchers and enable publishers to check bona fides and ensure the integrity of the content platform.

How about students being unable to access resources across borders? No problem, the publishers claim, we have a license for that!

The licences under which publishers provide universities with material do permit students to access course materials from anywhere in the EU (and very often the world).

Okay, what about teachers looking for resources from other countries? Well, the Publishers insist, no one really wants that anyway, and if they did, well, there's a license for that:

There is no effective demand for this. In both the primary and secondary school markets textbooks and other resources are produced explicitly to assist the delivery of each member state’s curriculum. As such the supply and demand for such materials is highly country-specific and cross-border requirements are minimal. Should there be such a demand (for example, if a school in France was teaching the English curriculum) then these materials can easily be sourced and a licence secured.

What about libraries lending ebooks? Guess what? The publishers say you can license that as well:

A variety of agreements between authors, publishers and libraries are in place across the EU which are giving rise to thriving models of e-book lending. The licences underpinning these models help ensure that authors are rewarded when their works are enjoyed, and ensures that authors are willing for their works to be borrowed in this way.

Yeah, but that's not how regular libraries work at all -- and that model kinda worked pretty damn well for a long time. Libraries didn't have to pay royalties every time someone checked out a book. Changing up that model may make publishers happy, but it makes life more difficult for everyone else.

In short, the Publishers insist, don't reform copyright law because as long as you give the publishers enough money, they'll let you do what you want. This isn't just tone deaf, it totally misses the point. It's an argument for permission-based learning and permission-based culture. It shows no recognition of how actual education and learning occurs. It shows no recognition of the power of being able to research and learn from a variety of sources. It shows no understanding of the ridiculous prices these publishers often like to charge for many of these "licensed" solutions -- and the simple fact that they will often hold back these licenses.

And, most importantly, it shows no recognition of the fact that requiring different licenses in every region is a massive waste of resources and efficiency. But the publishers don't care because that inefficiency is where they make money.

The other "myths" are just as laughable and can basically be summed up as "this is a myth because we don't like that idea." For example, they hate the idea of "exceptions" to copyright law being "harmonized" because it might mean some countries that have overly aggressive rights might lose those. Notice that the following gives not even the slightest nod of interest to the rights of the public.

Fully harmonising exceptions so that the same rules are mandated across the EU will be hugely disruptive and would result in some creators being deprived of rights. There are different legal traditions across the EU with long-established precedents in place (for example, in France there is a much stronger protection of the author’s moral rights). Variations in copyright law, within the over-arching framework of the Directive, are currently permitted in order to recognise these inherent cultural and legal differences. Imposing a single order on the whole of the EU’s creators would almost inevitably cause some to have their rights eroded.

Yes, that's the point. There's a tradeoff here, and people are arguing that giving the public slightly more rights to works can actually help culture overall. Yes, some artists might lose some currently granted "rights" to block people, but that doesn't mean those artists are harmed. It just changes the marketplace somewhat, and likely will help expand it by simplifying rules across a much larger territory.

The list also trots out the usual talking points by those who are against fair use in other countries -- claiming that even though the US has it, it would somehow totally upend the legal systems anywhere else:

The introduction of Fair Use would be highly disruptive and expensive for creators and consumers. There is no established basis in European law for the concept of “fair use”, whereas in the US it has been fine-tuned over 170 years of established legal precedents. Simply introducing the concept into EU law would presage a great number of legal cases, with associated high legal costs, as the market – and judges – came to an agreement as to what the terms allowed and precluded. Since there is no evidence that the present system is in need of radical reform, introducing Fair Use would be an unnecessary and damaging step, and one which would have limited application given that international rules on copyright, such as the Three Step Test, would still apply.

Way to sell Europe short, Publishers. It is entirely possible to implement a fair use system today. Arguing that it cannot be done is clearly hogwash. In fact, all that case law in the US should actually help the EU to develop a better fair use system, since many of the questions have already been debated and answered and the EU can draft accordingly.

We'll close with the final one, because it's just so insane and so ridiculous:

MYTH #10 An ebook is the same as a normal book and therefore I should be able to resell it

It is not the same. Physical and digital books have very different properties and so require different treatments as regards the ability to re-sell them. An ebook is easier to copy and digital copies are identical clones of the original work meaning that second-hand goods are largely indistinguishable from the original; they can be reproduced indefinitely without any loss of quality. They can also be circulated widely without control but even introducing a “forward and delete” function would not provide effective protection given the ease with which such measures can be circumvented. It is clear that the existence of a market for second hand digital copies will destroy the primary market for authors and publishers.

Of course, as Nate wrote in his piece, if that were true, piracy would have already eroded the book market entirely, but it hasn't. Either way, the Publishers' position on ebooks appears to be: (1) we get paid many times for the same book and (2) we block you from reselling it. In short, they're focused on taking away value from ebooks, to make them even less valuable than regular books.

Filed Under: copyright, digital single market, eu, europe, licensing, myths, publishers, single market, uk
Companies: uk publishers association