If We're Going To Fix Copyright, We Need Much More Transparency

from the a-necessary-factor dept

Glyn already covered European Parliament Member (and the EU Parliament's only Pirate Party representative) Julia Reda's report on copyright reform in the EU. However, for Day 3 of Copyright Week -- which is all about transparency, I wanted to focus on the other aspect of Reda's release of her report: just how transparent she's been. When we talk about transparency in copyright law, we're often talking about the lack of such transparency, often via international trade negotiations, like ACTA, TPP and TAFTA/TTIP, in which backroom dealing is done by unelected bureaucrats. The public is kept out of the negotiating process entirely, while lobbyists have full access. Combine that with the revolving door between the negotiators and the lobbyists themselves, and it's a recipe for non-transparent policy-making by which legacy industries get all the "gifts" they want.

Reda's approach with her report on copyright shows that it doesn't need to be that way. Along with the report, she detailed all of the 86 meeting requests she received from lobbyists regarding copyright (noting that the number went way up after she was appointed to write this report): She also noted that she really wanted to "balance out the attention paid to various interest groups" and that she really wanted to speak to content creators directly, rather than middlemen:

Most requests came from publishers, distributors, collective rights organizations, service providers and intermediaries (57% altogether), while it was more difficult to get directly to the group most often referred to in public debate: The authors. The results of the copyright consultation with many authors’ responses demonstrate that the interests of collecting societies and individual authors can differ significantly.

The end result:

Meetings requested

Meetings taken

She also includes a list of every lobbying meeting request she received on copyright:

This is great to see, and it would be nice to see others working on these issues post similar things. A few years ago, I noticed that while the USTR's FOIA website has a page for visitor logs, that page is conveniently left blank: After many months of back and forth, the USTR finally sent me visitor logs in an almost entirely unusable manner. Here's one of the many documents that were sent:

Compare and contrast the two situations. One appears to be representative government. The other seems to be doing everything possible to hide what's really going on when it comes to important things like understanding who's influencing copyright policy.

Filed Under: acta, copyright, copyright reform, julia reda, tafta, tpp, trade agreements, transparency, ttip, ustr

European Parliament Report Proposes Wide-Ranging Copyright Reform, Including Reduction Of EU Copyright Term

from the she-said-what??? dept

Last year, we wrote about a European Commission consultation on copyright, which revealed the vast chasm between the views of the public and those of the copyright industry. In particular, where the former wanted many aspects of copyright to change, the latter thought things were pretty good, and should be left as they were.

Often such consultations are just filed away, as is currently happening with the one on corporate sovereignty. But in the case of copyright, the person appointed to write a report on what should happen next is the lone Pirate Party Member of the European Parliament, Julia Reda, and she is clearly determined to use the results of the consultation to help reform EU copyright. The draft version of her report for the European Parliament evaluating the current 2001 copyright directive turns out to be remarkably faithful to many of the Pirate Party's ideas on copyright. Here's Reda's (intentionally Tweetable) encapsulation:

Although the directive was meant to adapt copyright to the digital age, in reality it is blocking the exchange of knowledge and culture across borders today.

The accompanying press release provides a summary of the report's approach and its proposals:

Drawing on the responses to a public consultation on the topic by the Commission in 2014 as well as scientific studies, the report calls for common European rules: "The goals set out in the [copyright] directive can be best achieved with the introduction of a Single European Copyright Title", it states, emphasising the need to “allow equal access […] across borders” to achieve the goal of a digital single market.

The report calls for the harmonization of copyright terms and exceptions across Europe, new exceptions for emerging use cases like audio-visual quotation, e-lending and text and data mining, as well as the adoption of an open norm to “allow for the adaptation to unanticipated new forms of cultural expression”. It recommends “exempting works produced by the public sector […] from copyright protection” and demands that “exercise of exceptions or limitations […] should not be hindered by technological measures”.

That short summary rather downplays the boldness of the proposals, which are well-worth reading in full. In another sign of Reda's Pirate origins and general Net-savviness -- she also references Techdirt's "The Sky is Rising 2" report -- she has posted the full text of her draft on an online discussion platform that lets anyone comment and rate individual sections. Remarkably, the "harmonization of copyright terms" mentioned above is downwards:

Calls on the Commission to harmonise the term of protection of copyright to a duration that does not exceed the current international standards set out in the Berne Convention;

That is, life plus 50 years, rather than the widespread life plus 70 years. Reda also wants to protect and expand the public domain:

Recommends that the EU legislator should further lower the barriers for re-use of public sector information by exempting works produced by the public sector -- within the political, legal and administrative process -- from copyright protection;

Her proposals for harmonizing exceptions are equally dramatic:

Calls on the Commission to make mandatory all exceptions and limitations referred to in Directive 2001/29/EC, to allow equal access to cultural diversity across borders within the internal market and to improve legal security;

Not only does Reda want to bring in all the allowed exceptions and limitations across the whole EU, she also proposes a mechanism for creating new ones:

Calls for the adoption of an open norm introducing flexibility in the interpretation of exceptions and limitations in certain special cases that do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author or rightholder;

She calls for the clarification of a number of important questions that have arisen recently. These include confirming that hyperlinking is not an infringement of copyright; allowing the use of photographs and videos of works that are displayed in public places; confirming that the caricature, parody and pastiche exceptions apply regardless of the parodic purpose; permitting text and data mining; exceptions for research and educational purposes, as well as allowing libraries to lend out ebooks. She also tackles DRM:

Stresses that the effective exercise of exceptions or limitations, and access to content that is not subject to copyright or related rights protection, should not be hindered by technological measures;

And adds this rather unusual rider:

Recommends making legal protection against the circumvention of any effective technological measures conditional upon the publication of the source code or the interface specification, in order to secure the integrity of devices on which technological protections are employed and to ease interoperability; in particular, when the circumvention of technological measures is allowed, technological means to achieve such authorised circumvention must be available;

As those excerpts make clear, practically everything here is likely to make the copyright maximalists howl -- particularly the unprecedented suggestion that copyright terms should be reduced for once, instead of constantly extending them, as in the past. Of course, not everything will survive the lobbying barrage that will hit the various EU committees as they review the text, nor will the European Commission adopt every proposal when it puts together its proposal for the new directive on copyright to update the current one.

But the report is nonetheless an amazing achievement for someone who has been a Member of the European Parliament for less than a year: Reda and her team should be proud of their work. It is also hugely important, because it raises in such a clear and thoughtful way most of the key problems with today's copyright. In doing so, it provides an excellent basis on which to have a wide-ranging discussion, both in the European Parliament and beyond, about ways to make the 300-year-old copyright system fit for the digital age.

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Filed Under: copyright, copyright reform, copyright term, eu, exceptions, fair use, julia reda, limitations, public domain

How Copyright Makes Culture Disappear

from the to-promote-the-progress dept

A few years ago, we wrote about some research by Paul Heald that did an astounding job visually demonstrating how much copyright law today harms the dissemination of content. The key graphic was the following one: What it shows is that while new books are available for sale, they quickly go out of print and are basically not available -- until you get down to 1923, at which point the works are in the public domain. Think of all those works that are no longer available to buy in that major gap in the middle. Heald has since updated that research to show how serious a problem this is -- and demonstrating how the arguments against letting these works into the public domain make no sense. He demolishes the arguments made by some that a public domain will be either "under" or "over" exploited (yes, both arguments are made), as neither makes much sense.

It appears that copyright is doing similar damage in Europe. At the latest Chaos Communications Congress in Germany, Julia Reda, the European Parliament member from the Pirate Party gave a talk on the state of copyright law today (you can see the video here and included a similar graphic concerning books available in Europe: What amazes me is that this giant set of missing works isn't seen as a bigger deal by policy makers (outside of Reda). This is a massive loss for society and the public based on copyright today -- and could be easily avoided with a few basic changes to the law, including things like requiring registration of copyrights and, if not shortening the term length of copyright significantly, at the very least, requiring the copyright holder to re-register the work over time. As we've pointed out in the past, prior to the 1976 Act, copyright law required registrations and renewals (at the 26-year mark) and the vast majority of works were simply not renewed at that point, because there was no economic incentive to do so. Yet, despite that, we still automatically grant copyright on all such works for a much longer period today. Not only does it not make sense, it leads to the massive gap in those two graphics above -- which is a huge loss for society and culture.

Filed Under: blackhole, copyright, culture, julia reda, paul heald, public domain

Forget EU's Toothless Vote To 'Break Up' Google; Be Worried About Nonsensical 'Unbiased Search' Proposal

from the that's-where-the-real-threat-is dept

As was widely expected after leaking out a few days earlier, last week the EU Parliament "voted" on its proposal to support the breakup of Google. And yet, that might not really be as important as a second part of the EU's vote, concerning a bizarre and nonsensical requirement for "unbiased" search results. As discussed earlier, the headlined proposal for breaking up Google is both completely toothless and kind of stupid. On the toothless part, not only can the EU Parliament not actually do anything about this, if the EU Commission wanted to break up Google, it would need to go through a long and involved process, that would likely fail. As Vox notes:

For Google to actually get broken up, the European Commission would first need to take Google to court alleging violation of European competition laws. The EC would then have to win the case and convince the courts that a breakup was the appropriate remedy.

"I can't believe that would happen," [antitrust expert Mark] Patterson told me on Monday. "I don't think there have been cases of anyone being broken up in years."

Patterson says that "there's never been a smoking gun" showing that Google has abused its dominance in the search or advertising markets to harm competitors

But still, here's what the EU Parliament approved [pdf] by a 384 to 174 vote:

Notes that the online search market is of particular importance in ensuring competitive conditions within the digital single market, given the potential development of search engines into gatekeepers and the possibility they have of commercialising secondary exploitation of information obtained; calls, therefore, on the Commission to enforce EU competition rules decisively, based on input from all relevant stakeholders and taking into account the entire structure of the digital single market in order to ensure remedies that truly benefit consumers, internet users and online businesses; calls, furthermore, on the Commission to consider proposals aimed at unbundling search engines from other commercial services as one potential long-term means of achieving the aforementioned aims;

As for why this is stupid, the Economist has a rather good explanation:

Google is clearly dominant, then; but whether it abuses that dominance is another matter. It stands accused of favouring its own services in search results, making it hard for advertisers to manage campaigns across several online platforms, and presenting answers on some search pages directly rather than referring users to other websites. But its behaviour is not in the same class as Microsoft’s systematic campaign against the Netscape browser in the late 1990s: there are no e-mails talking about “cutting off” competitors’ “air supply”. What’s more, some of the features that hurt Google’s competitors benefit its consumers. Giving people flight details, dictionary definitions or a map right away saves them time. And while advertisers often pay hefty rates for clicks, users get Google’s service for nothing—rather as plumbers and florists fork out to be listed in Yellow Pages which are given to readers gratis, and nightclubs charge men steep entry prices but let women in free.

Furthermore, the Economist points out that, not only does this move appear to be anti-consumer, but it's also just blatantly protectionist for companies unwilling to innovate:

Instead of attacking successful American companies, Europe’s leaders should ask themselves why their continent has not produced a Google or a Facebook. Opening up the EU’s digital services market would do more to create one than protecting local incumbents.

But within the proposal, a few lines down, there was something that might be even more concerning, and more ridiculous, even if it generated fewer (actually, almost no) headlines. And it's that, beyond "breaking up" search engines, the resolution also included this bit of nonsense, saying that search engines need to be "unbiased":

Stresses that, when operating search engines for users, the search process and results should be unbiased in order to keep internet searches non-discriminatory, to ensure more competition and choice for users and consumers and to maintain the diversity of sources of information; notes, therefore, that indexation, evaluation, presentation and ranking by search engines must be unbiased and transparent; calls on the Commission to prevent any abuse in the marketing of interlinked services by search engine operators;

But what does that even mean? Search is inherently biased. That's the point of search. You want the best results for what you're searching for, and the job of the search engine is to rank results by what it thinks is the best. An "unbiased" search engine isn't a search engine at all. It just returns stuff randomly.

What this really is, is a way for the EU to try to insert itself into being able to edit search results. They're trying to insert themselves into the algorithm to determine which search results it thinks should be up top, rather than whatever the algorithms find. This is very worrisome -- in part because it demonstrates how little the EU politicians who voted for this understand. Years ago, James Grimmelmann (no friend of Google -- as he's actively fought against Google on a number of issues), explained why this concept (sometimes called "search neutrality") makes no sense at all, and actually sets up a conflicting set of requirements where the "ends and means don't match." He concludes that the very idea of unbiased search is "incoherent." In fact, he notes that an attempt towards "unbiased search" almost certainly leads to not just worse results for users, but a more likely situation in which users get pushed to the kinds of sites policy makers think they're going to demote.

Requiring search engines to behave “neutrally” will not produce the desired goal of neutral search results. The web is a place where site owners compete fiercely, sometimes viciously, for viewers and users turn to intermediaries to defend them from the sometimes-abusive tactics of information providers. Taking the search engine out of the equation leaves users vulnerable to precisely the sorts of manipulation search neutrality aims to protect them from. Whether it ranks sites by popularity, by personalization, or even by the idiosyncratic whims of its operator, a search engine provides an alternative to the Hobbesian world of the unmediated Internet, in which the richest voices are the loudest, and the greatest authority on any subject is the spammer with the fastest server. Search neutrality is cynical about the Internet—but perhaps not cynical enough.

Meanwhile, the sole Pirate Party member of the European Parliament, Julia Reda, has a bit more detail about how this bogus claim of "unbiased search" is really just an attempt to prop up publishers who failed to innovate via so-called "ancillary rights," like the attempt to force Google to pay newspaper publishers for sending them traffic. As Reda notes:

Here, it is demanded that search algorithms and results should be impartial to keep internet searches “nondiscrimatory” and to “secure competition and freedom of choice for users and consumers”. Consequently, indexing, weighting, display and ordering of search engines should be impartial and transparent.

This wording is explosive. I am led to suspect that its aim is to prepare a European ancillary copyright for press publishers. The attempt to cross-finance big publishers through Google most recently spectacularly backfired in Germany. Is this resolution an attempt to create the puzzle piece that had been missing in Germany?

In October, Günther Oettinger, the EU Commissioner for the Digital Economy and Society, provoked a debate on an EU-wide ancillary copyright law for press publishers before even taking office. Not a month later, the next move is made in that direction – this time in the parliament.

As you may recall, when German publishers demanded payments for the traffic, Google removed their snippets, and the publishers claimed it was "blackmail." As Reda notes, the whole "neutrality" or "unbiased" language in the resolution suggests a plan in which Google would be forced to (1) continue providing the snippets and traffic and then, later, (2) pay the publishers for sending them the traffic. In short, the idea is to force Google to "violate" the (made up) rights of publishers in order to give them a way to force Google to give them money.

Reda, along with Michel Reimon, put forth amendments that would block this possible interpretation of the resolution... and had those amendments rejected.

It's clear that Europe, for whatever reason, has decided to go to war against American internet companies, with Google being the main target. As we noted last week, it's not clear what the reasons are other than that Google is big and American. It's perfectly reasonable to be concerned about potential abuse, and to vigilantly watch to make sure no such abuse occurs, but that's not what's happening here. It appears that these moves are just designed to punish not only Google, but the very users of the service in Europe, pressuring the company to deliver a lesser product... just to benefit a few companies and industries that have failed to innovate.

It is difficult to see how such an effort could possibly be good for the people of Europe.

Filed Under: antitrust, eu, eu commission, eu parliament, julia reda, search neutrality, unbiased search
Companies: google

Next EU Commissioner Responsible For Internet Says Celebrities Storing Nude Pictures Online Are 'Stupid'

from the blaming-the-victims dept

We recently wrote about the hearing of Cecilia Malmström, likely to be the next trade commissioner for the European Union. On the same day, Günther Oettinger, the candidate for the post responsible for "digital economy and society," was also quizzed by members of the European Parliament. His replies were mostly pretty staid -- previously, he was the energy commissioner, and seemed more at home among gas and oil pipes than the series of tubes that go to make up the Internet -- but one comment has drawn much criticism, as the Guardian reports here:

Former EU energy commissioner Günther Oettinger, 61, is used to accusations that he is more digitally naïve than digitally native by now. But at a hearing in front of the European parliament, the EU’s next commissioner designate for digital economy and society raised some serious questions about his suitability.

During a three-hour grilling by MEPs in Brussels, Oettinger said it would not be his job to protect stars "stupid enough to take a nude photo of themselves and put it online” -- seemingly unaware that the recent leak of celebrities’ nude photographs had come about as a result of a targeted hacking attack.

Julia Reda, the Pirate Party's representative in the European Parliament, wrote a fiery post pointing out why that comment was so wrong:

Let's recap the incident he's referring to: Recently, private photos of female celebrities were published against their will. Far from what Oettinger is suggesting, they didn't "put the photos online". The most likely sources of the photos were cloud-based phone backups. The women might not even have been aware of the backups' existence, since they are created automatically in the background on many phones. It appears that attackers were able to break their encryption due to security failures, like a service allowing an unlimited number of different passwords to be tried out in rapid succession or granting access after posing "security questions" with guessable or obtainable answers. One of the victims was underage when the published photos were taken.

If you manage to look beyond the tabloid celebrity/sex angle, the statement is unbelievable: The person applying to be in charge of shoring up trust in the internet so that Europeans do more business online just victim-blamed people whose personal data was accessed and spread without authorization. He placed the moral blame for that crime squarely on the victims rather than the perpetrators.

Although that incident caught people's attention, there were plenty of other things to be worried about in Oettinger's replies. Aside from an evident lack of familiarity with the digital world -- something that can be rectified, one hopes, given time and good advisers -- there were indications that he is likely to see the Internet through an industrial prism, with its users little more than passive consumers of products sold by online businesses. Here, for example, is Euractiv's translation of his reply to a question about the major reform of copyright in the EU, which is one of the key tasks facing him if he is appointed:

"I stand for reliable protection of copyright," Oettinger said.

"We must adequately protect the creator, so these creators will still exist tomorrow. On the other hand, users in the digital world are interested in gaining access to all cultural products." This requires finding a delicate balance, Oettinger said.

"I will commit to working on a draft law, finding a balance for European copyright law in the context of the digital world," the Commissioner designate said.

Pretty generic stuff, with no hint that Internet users might themselves be creators of materials that they are happy to share, without needing to worry about "protection." That suggests Oettinger's idea of "balance" is likely to be skewed heavily in favor of the copyright industry. In other words, a rare opportunity to move on the debate about copyright in the digital world by looking at things from a fresh viewpoint, and trying out some new ideas, has almost certainly been squandered.

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Filed Under: celebrities, eu, gunther oettinger, internet, julia reda, nudes

Pirate Party Launches Site For Public To Put Questions To New EU Commissioners Responsible For Internet Policy

from the give-it-a-go dept

There's a new set of top politicians coming in to form the European Commission, one of the three bodies that run the European Union. Next week, the European Parliament -- another of those three bodies -- gets to grill them on their suitability. It's largely theater, since rejecting a Commissioner-designate is pretty heavy, and rarely happens. Still, if nothing else, it's a chance to put embarrassing questions to people who will soon be powerful and hard to call to account. Sadly, though, it's not something that the public can participate in. The Pirate Party's newly-elected Member of the European Parliament, Julia Reda, wants to change that, and has created a site called "What would you ask?". Here's the explanation:

From September 29 to October 7th, the European Parliament gets to vet the designated members of the EU Commission: The people who will be drafting laws for 500 million people for the next five years. I believe: The people of Europe should also be allowed to ask questions! That's why I'm asking YOU: If you had the chance, what would you ask the Commissioners responsible for internet policy?

There are two Commissioners involved: Andrus Ansip, Designated Vice President for the Digital Single Market, who oversees the breaking-down of borders between EU member states on the Internet, and Günther Oettinger, Designated Commissioner for Digital Economy and Society, responsible for the telecom sector, copyright, start-ups, e-government, security, Internet governance, and the European Commission's own computing services. Rather worryingly, Ansip was an unabashed supporter of ACTA when it was being pushed through a couple of years ago, while questions have been raised about Oettinger's experience and understanding of the digital world.

Reda adds:

I will forward the top-voted questions to the Commissioners and ask them to reply. But please note: Since as an individual MEP even I have very limited opportunity to ask questions, I cannot promise I will be able to pose these questions in the actual committee hearing.

Still, given that previously the public had precisely zero opportunity to pose questions to these people, even a small chance is worth taking.

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Filed Under: andrus ansip, eu commissioner, eu parliament, gunther oettinger, julia reda, pirate party, questions